Lile v. McKune
| Decision Date | 16 September 1998 |
| Docket Number | No. 95-3266-DES.,95-3266-DES. |
| Citation | 24 F.Supp.2d 1152 |
| Parties | Robert G. LILE, Plaintiff, v. David R. McKUNE, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Brett D. Leopold, Stinson, Mag & Fizzell, P.C., Kansas City, MO, David V. Byrd, Shook, Hardy & Bacon, L.L.P., Kansas City, MO, David J. Waxse, Paul W. Rebein, Shook, Hardy & Bacon L.L.P., Overland Park, KS, for Plaintiff.
John R. Dowell, Office of Attorney General, Topeka, KS, Lawrence J. Logback, Martin, Pringle, Oliver, Wallace & Swartz, L.L.P., Wichita, KS, Timothy G. Madden, Kansas Department of Corrections, Topeka, KS, for Defendant.
Plaintiff, a prisoner confined in Lansing Correctional Facility in Lansing, Kansas, proceeds in forma pauperis and with appointed counsel to challenge the constitutionality of a sex offender treatment program required by the Kansas Department of Corrections ("DOC"). Before the court are cross motions for summary judgment by the parties.
A jury convicted plaintiff in 1983 of kidnaping, rape, and aggravated sodomy. Plaintiff denied all charges and testified at trial that his conduct with the victim, including sexual intercourse, was consensual. The Kansas appellate courts affirmed plaintiff's conviction. At the time he filed his complaint, plaintiff had a petition for writ of habeas corpus under 28 U.S.C. § 2254 pending before this court in which he alleged constitutional error in his state court conviction. Plaintiff is currently incarcerated at Lansing Correctional Facility ("LCF") in Lansing, Kansas, serving a controlling life sentence.
When plaintiff was first incarcerated, DOC staff determined the sex offender treatment program would not be required. In 1994, plaintiff's Unit Team Counselor added the Sex Offender Treatment Program ("SOTP," the precursor to the current program, Sexual Abuse Treatment Program "SATP"), a clinical rehabilitation program, to plaintiff's inmate program agreement ("IPA"). After exhausting administrative remedies on an unsuccessful grievance challenging the addition of this programming, plaintiff signed the modified IPA, but refused to participate in the recommended program which required the signing of an "Admission of Guilt" form.1
In 1995, DOC amended state regulations2 and revised its internal management policies and procedures ("IMPP"). The revised IMPP 11-101, effective January 1, 1996, is characterized as an incentive level system that links privileges and custody classifications to successful prison accomplishment, such as the completion of required programming. As applied to plaintiff, the documented failure to complete a recommended program on his IPA would automatically impair his ability to earn good time, and would result in his transfer to maximum custody and the loss of privileges for that review period. These consequences, acknowledged as part of the "incentive" for completion of recommended programming, mirror the consequences imposed for serious disciplinary infractions.3
The resulting conditions in maximum custody go beyond the lack of a personal television. Plaintiff would be placed in a more dangerous environment occupied by more serious offenders. He would not be able to earn more than $0.60 a day for prison pay, and he would not be eligible for industries work. Visitation would be restricted to attorneys, clergy, law enforcement and his immediate family. Other approved visitors would not be allowed. Available programming would be limited, as would the amount of personal property he could retain in his cell.
In addition to signing an "Admission of Guilt" form, plaintiff objected to the SATP requirement that all participants generate a written sexual history which includes all prior sexual activities, regardless of whether such activities constitute uncharged criminal offenses. Polygraph examinations are used to verify the accuracy and completeness of the offender's sexual history. Plethysmograph testing is used for diagnostic and treatment purposes. The results of the plethysmograph and polygraph exams are to be discussed in group therapy sessions. Although participants are instructed to keep confidential the information elicited during the therapy sessions, and may be terminated from the program for failing to do so, the confidentiality of this information is expressly limited. The parties acknowledge that Kansas law requires SATP staff to report any disclosed uncharged sexual offense,4 and that all SATP participant files are subject to subpoena.
In cross motions for summary judgment, the parties seek resolution of two constitutional issues. The first is whether the operation of the SATP and related prison regulations and policies violates plaintiff's constitutional right against self incrimination. Second is whether the SATP Program at LCF is conducted in a manner impermissibly invasive of plaintiff's constitutional right to privacy and bodily integrity.
Under the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In reviewing summary judgment motions, the evidence must be viewed in the light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252, 106 S.Ct. 2505.
The fact that both parties have filed cross-motions for summary judgment does not change this standard of review. Taft Broadcasting Co. v. U.S., 929 F.2d 240, 249 (6th Cir.1991). The court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration. Mingus Constructors, Inc. v. U.S., 812 F.2d 1387, 1391 (Fed.Cir. 1987).
The Fifth Amendment, applicable to the states through the Fourteenth Amendment,5 provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. Art. V. The Amendment "must be accorded liberal construction in favor of the right it was intended to secure," Hoffman v. U.S., 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), and it clearly extends to incarcerated prisoners, Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).
The constitutional right against self-incrimination turns not on the type of proceeding, but the nature of the statement or admission that is invited. Estelle v. Smith, 451 U.S. 454, 462, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). The Fifth Amendment "privileges [the individual] 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 ... unless and until he is protected at least against the use of his compelled answers." Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 78, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973)).
The privilege should be affirmatively and timely asserted. Murphy, 465 U.S. at 429, 104 S.Ct. 1136. A state does not abridge the right against self-incrimination when an individual waives the privilege by communicating voluntarily. U.S. v. Washington, 431 U.S. 181, 186, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977).
There is a longstanding Supreme Court directive that the privilege against self-incrimination is "as broad as the mischief against which it seeks to guard." Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). The "mischief" identified in the present case involves the State's acquisition of therapeutic confessions in the SATP Program at LCF.
Plaintiff first claims the significant adverse regulatory consequences attendant to his refusal to fully participate in the SATP Program at LCF unconstitutionally compels his disclosure of potentially incriminating information without the protection of immunity.6 Secondly, plaintiff claims he should not be punished by operation of IMPP 11-101 for asserting his right against self incrimination.
Defendants contend the Fifth Amendment is not applicable to this non-criminal setting, and maintain there is no compulsion in this voluntary program. Defendants further argue the withholding of discretionary privileges is allowable if plaintiff refuses to participate in required prison programming. Defendants do not dispute plaintiff's claim that no express immunity is provided to SATP participants.
The court first examines whether there is merit to plaintiff's Fifth Amendment claim, and if so, the remedy to afforded in this case.
The court easily finds the information required to be disclosed under the SATP Program is sufficiently incriminating for Fifth Amendment purposes.
"To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman, 341 U.S. at 486-87, 71 S.Ct. 814. The privilege "protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." Kastigar v. U.S., 406...
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McKune v. Lile
...completed discovery, the United States District Court for the District of Kansas entered summary judgment in respondent's favor. 24 F. Supp. 2d 1152 (1998). The District Court noted that because respondent had testified at trial that his sexual intercourse with the victim was consensual, an......
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...and he concludes that defendants violated his Fifth Amendment right by penalizing him for invoking that right. See Lile v. McKune, 24 F.Supp.2d 1152 (D.Kan.1998) (application of IMPP 11-101 to inmate who refuses to participate in SATP violates inmate right against self-incrimination); see a......
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