Lile v. McKune

• Citation: 224 F.3d 1175
• Decision Date: 05 September 2000
• Docket Number: Nos. 98-3292,s. 98-3292
• Parties: (10th Cir. 2000) ROBERT G. LILE, Plaintiff-Appellee/Cross-Appellant, v. DAVID R. McKUNE and CHARLES SIMMONS, Defendants-Appellants/Cross-Appellees. & 98-3294
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1175

224 F.3d 1175 (10th Cir. 2000)

ROBERT G. LILE, Plaintiff-Appellee/Cross-Appellant, v. DAVID R. McKUNE and CHARLES SIMMONS, Defendants-Appellants/Cross-Appellees.

Nos. 98-3292 & 98-3294

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

September 5, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 95-CV-3266-DES)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Timothy G. Madden, Kansas Department of Corrections, Topeka, Kansas, for Defendants-Appellants/Cross-Appellees.

Matt Wiltanger (David J. Waxse and Paul W. Rebein with him on the briefs) of Shook, Hardy & Bacon L.L.P., Overland Park, Kansas, for Plaintiff-Appellee/Cross-Appellant.

Before SEYMOUR, Chief Judge, McKAY and EBEL, Circuit Judges.

McKAY, Circuit Judge.

These cross-appeals arise out of an action brought by Plaintiff Robert G. Lile under 42 U.S.C. § 1983. Plaintiff is a prisoner at the Lansing Correctional Facility in Lansing, Kansas. On January 6, 1983, he was convicted in Kansas state court of aggravated kidnaping, rape, and aggravated sodomy.¹ He pleaded not guilty to these charges and testified at trial that he had consensual intercourse with the alleged victim. Though not part of his original sentence, the Kansas Department of Corrections recommended in 1994 that Plaintiff participate in the Sexual Abuse Treatment Program² [SATP or program] because he had been convicted of sex offenses and added it to his Inmate Program Agreement [IPA]. To be admitted into the program, Plaintiff was required to disclose his sexual history, including the crime of which he was convicted and any uncharged sexual offenses. He refused to make any such admissions and, on October 11, 1994, refused to sign his amended IPA.

After pursuing his administrative remedies without success, Plaintiff filed a § 1983 action against the State, naming the warden of the Lansing Correctional Facility and the Secretary of the Kansas Department of Corrections as defendants. He claimed first that the SATP and its corresponding regulations and policies violated his Fifth Amendment right against self-incrimination and second that the implementation of the SATP violated his Fourth Amendment right to privacy and bodily integrity. Specifically, he argued that Defendants' policy of withholding privileges and benefits penalized him for refusing to provide potentially incriminating information related to past sexual behavior or offenses and therefore violated his Fifth Amendment right against self-incrimination. He also complained that his Fourth Amendment rights were violated by the intrusive nature of the plethysmograph examination.

Ruling on cross-motions for summary judgment, the district court granted summary judgment to Plaintiff on his claim that the SATP violated his Fifth Amendment right against self-incrimination, but it granted summary judgment to Defendants on the Fourth Amendment claim. See Lile v. McKune, 24 F. Supp.2d 1152 (D. Kan. 1998). We exercise jurisdiction under 28 U.S.C. § 1291.³

We review the denial or the grant of summary judgment de novo, applying the same legal standard used by the district court. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). Summary judgment is properly granted where, viewing the factual record and the reasonable inferences therefrom in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Charter Canyon Treatment Ctr. v. Pool Co., 153 F.3d 1132, 1135 (10th Cir. 1998).

I. Fifth Amendment

The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend V. Although this language is somewhat narrow, the Supreme Court has interpreted it broadly. See, e.g., In re Gault, 387 U.S. 1, 50 (1967) (The privilege is to be "broadly applied and generously implemented in accordance with the teaching of the history of the privilege and its great office in mankind's battle for freedom."). The right not only applies to an individual's criminal trial but also "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77 (1973); see Minnesota v. Murphy, 465 U.S. 420, 426 (1984). The privilege has two components: incrimination and compulsion. Although it is not entirely clear whether Defendants assert that the SATP was not incriminating, we briefly address this issue.

A. Incrimination

The privilege guarantees every person the right to remain silent when faced with a real and appreciable risk of incrimination in a criminal proceeding. See Minor v. United States, 396 U.S. 87, 98 (1969). If the possibility of incrimination is too speculative or insubstantial, the privilege does not attach. See id.

In this case, the district court found that "the information required to be disclosed under the SATP . . . is sufficiently incriminating for Fifth Amendment purposes." Lile, 24 F. Supp.2d at 1157. We agree with the district court that "[b]y requiring the complete and written disclosure of a prisoner's sexual history, including all uncharged sexual offenses, SATP clearly [sought] information that could incriminate the prisoner and subject him to further criminal charges." Id. (footnote omitted). This is especially true in this case because no confidentiality is afforded such disclosures; an admission of any information concerning uncharged sexual offenses against minors must be turned over by the SATP staff to the proper authorities under Kansas law. See Supp. App. at 253; Kan. Stat. Ann. § 38-1522 (mandating reporting of abuse or neglect of children). In addition, all SATP files, including the sexual history form, are subject to disclosure by subpoena or other court order. See Supp. App. at 116-18, 253; 42 C.F.R. §§ 2.63(a)(2), 2.65 (authorizing disclosure of confidential communications and patient records for criminal investigation or prosecution of patient); see also Lile, 24 F. Supp.2d at 1157 n.7 (distinguishing Chambers v. Bachicha, 39 F.3d 1191, 1994 WL 596702 (10th Cir. 1994) (Table), which found no Fifth Amendment violation in part because of confidentiality of prison records); cf. Neal v. Shimoda, 131 F.3d 818, 833 & n.18 (9th Cir. 1997) (rejecting Fifth Amendment self-incrimination claim because of absence of evidence of a real possibility that state would use admission to sex offenses against plaintiffs in future criminal proceeding and because "there [was] no danger that [an] . . . inmate would be compelled to admit to other sexual misconduct of which prison or law enforcement officials were not already aware"); Tedder v. Francke, 931 F.2d 897, 1991 WL 65497 (9th Cir. 1991) (Table) (holding that Oregon sex offender program did not violate plaintiff's right against self-incrimination in part because admissions made would be privileged under Oregon evidence rule). Plaintiff knew that any incriminating information he disclosed could be used to prosecute him. In fact, Defendants concede that inmates are "advised that information obtained during the course of treatment [in the SATP] has limited confidentiality" and will be given to law enforcement officials if prosecutable. Defendants' Third Br. at 3.

Additionally, an admission of culpability regarding the crime of which Plaintiff was convicted would put him at an appreciable risk for a perjury prosecution, especially because he testified at trial that he was not guilty. See Thomas v. United States, 368 F.2d 941, 945 (5th Cir. 1966); State v. Cate, 683 A.2d 1010, 1019 (Vt. 1996). Having determined that the incrimination element of the Fifth Amendment privilege analysis is satisfied, we now turn to the more difficult issue of compulsion.

B. Compulsion

In Lefkowitz v. Cunningham, 431 U.S. 801, 807 (1977), the Supreme Court emphasized that "the touchstone of the Fifth Amendment is compulsion" and recognized that the imposition of penalties is the mechanism by which persons are compelled to incriminate themselves. See id. at 804-05; Garner v. United States, 424 U.S. 648, 653 (1976). The privilege provides an individual with the right "not to answer official questions put to him in any . . . proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Turley, 414 U.S. at 77.

After finding that the disclosure of Plaintiff's sexual history required by the SATP was "sufficiently incriminating for Fifth Amendment purposes," Lile, 24 F. Supp.2d at 1157, the district court determined that the SATP and its corresponding regulations and policies impose significant adverse consequences on Plaintiff and "operate[] to compel the disclosure of such incriminating testimony" in violation of the Fifth Amendment privilege. Id.

Defendants argue that the court "erred in concluding that the withholding of discretionary privileges from an inmate as a consequence of the inmate's refusal to participate in a rehabilitation program constituted compulsion within the meaning of the Fifth Amendment." Appellants' Br. at 7. They claim that no compulsion exists because Plaintiff's decision to participate or not participate in the SATP is voluntary and because Plaintiff has no protected liberty interest in any of the privileges that would be withheld.

In response, Plaintiff argues that by requiring him to complete an admission of responsibility form and disclose his sexual history, and by imposing adverse consequences for his failure to do so, the SATP unconstitutionally compels him to reveal potentially incriminating information about his sexual history and thus violates his Fifth Amendment right against self-incrimination.

Supreme Court jurisprudence concerning the Fifth Amendment right against...