McMorrow v. Little, 95-3862
| Decision Date | 06 February 1997 |
| Docket Number | No. 95-3862,95-3862 |
| Parties | Patrick T. McMORROW, Jr., Plaintiff--Appellee, v. Elaine LITTLE, individually, and as Director of the Department of Corrections and Rehabilitation; Timothy Schuetzle, individually, and as Warden of the North Dakota State Penitentiary; Daniel Wrolstad, individually, and as Acting Programs Director of the North Dakota State Penitentiary; Diana Welk, individually, and as Counselor at the North Dakota State Penitentiary; Glenn Otto, individually, and as Human Service Program Administrator of the North Dakota State Penitentiary; Defendants--Appellants, Ernest Reinert, individually, and as Parole Coordinator at the North Dakota State Penitentiary; Defendants, Beverly Bergson, individually, and as Counselor at the North Dakota State Penitentiary; Mary Dasovich, individually, and in her official capacity; Defendants--Appellants, Warren G. Allen, individually, and as Members of the North Dakota Parole Board; Henry Gayton, Jr., individually, and as Members of the North Dakota Parole Board; Sherry Mills Moore, individually, and as Members of the North Dakota Parole Board, Defendants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Opinion Vacated and Superseded.
Bill Peterson, Asst. Atty. Gen., Bismarck, ND, argued, for Defendants-Appellants.
Steven A. Storslee, Bismarck, ND, argued, for Plaintiff-Appellee.
Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.
Elaine Little, individually, and as Director of the Department of Corrections and Rehabilitation of North Dakota, and other officials of the North Dakota penitentiary system 1 appeal from an order of the district court denying their motion to dismiss Patrick McMorrow's 42 U.S.C. § 1983 action against them. The officials withheld parole, work release, and less restrictive confinement from McMorrow while he was imprisoned in North Dakota because he refused to admit to his crime. McMorrow claims that the officials' denial of benefits violated his Fifth Amendment and Fourteenth Amendment right against self-incrimination, and the district court denied the officials' motion to dismiss on that ground. On appeal the officials argue that the law was not clearly established, and that McMorrow's complaint must be dismissed. We reverse and order that the district court dismiss McMorrow's complaint with prejudice.
McMorrow was charged with gross sexual imposition for raping a woman. A jury found McMorrow guilty. As a part of McMorrow's sentence, he was required to attend the Sexual Offender Treatment Program at the North Dakota State Penitentiary. Before McMorrow could attend the program he had to admit that he committed the crime for which he was convicted.
McMorrow refused to admit that he committed the crime for which he was convicted. Because of his refusal, the officials denied McMorrow access to the sex offender program and eligibility for parole, work release, and less restrictive confinement. McMorrow brought this action claiming that the officials violated his constitutional right against self-incrimination by requiring him to admit his guilt before he could attend the sex offender program and become eligible for parole, work release, and less restrictive confinement.
The officials filed a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss McMorrow's complaint. They argued that McMorrow's complaint failed to state a claim upon which relief could be granted because of their qualified immunity. The magistrate judge concluded in his report and recommendation that McMorrow had stated a claim that the officials' qualified immunity did not defeat. The magistrate judge determined that it was clearly established that it was a violation of McMorrow's constitutional right against self-incrimination to require him to admit his crime before allowing him to attend the sex offender program. The district court agreed with the magistrate judge's conclusions and adopted his report and recommendation. The officials appeal from the denial of their motion to dismiss McMorrow's complaint.
The officials argue that McMorrow's complaint fails to state a claim upon which relief can be granted and should be dismissed because they are entitled to qualified immunity. They argue that they are entitled to qualified immunity because the constitutional right that McMorrow claims they violated was not clearly established.
We review de novo the district court's denial of the officials' Rule 12(b)(6) motion to dismiss McMorrow's complaint. See Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995). We must review McMorrow's complaint most favorably to McMorrow and may dismiss the complaint only if it is clear that no relief can be granted under any set of facts that could be proven consistent with the complaint. See id. The officials' qualified immunity will bar relief to McMorrow unless his complaint states facts showing that the officials violated one of his constitutional rights and that the right was clearly established when the officials violated it. See Weaver v. Clarke, 45 F.3d 1253, 1255 (8th Cir.1995). For a constitutional right to be clearly established, the contours of that right must be sufficiently clear and specific that a reasonable official would understand that what he is doing violates that right. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).
McMorrow's complaint states that the officials withheld certain benefits from him because he refused to admit committing the crime for which he had been convicted. Consistent with this statement, McMorrow may be able to prove two different sets of facts, each showing a different potential violation of his constitutional right against self-incrimination by the officials. Under each alternative, we accept that McMorrow refused to admit his guilt for the crime for which he was convicted and that the officials withheld benefits from him because of this refusal.
Accepting these facts, the first alternative assumes that McMorrow did not invoke his privilege against self-incrimination when he refused to admit his guilt and that his admission would not incriminate him for a crime other than the one for which he had already been convicted. McMorrow argues that a convicted defendant's constitutional right against self-incrimination prevents state officials from making benefits conditional on the defendant's admission of guilt. We will assume without deciding that McMorrow is correct and that these facts constitute a violation of his right against self-incrimination.
Assuming this violation of McMorrow's constitutional right, the officials are entitled to qualified immunity because it was not clearly established that their conduct was unconstitutional. At the time the officials withheld benefits from McMorrow, no court with jurisdiction over North Dakota had held that such conduct was a violation of a convicted defendant's constitutional right against self-incrimination. Other courts outside of North Dakota, however, had ruled on this issue at the time of the officials' conduct with mixed results.
Some courts have held that it is a violation of a convicted defendant's constitutional right against self-incrimination to increase his punishment or withhold a benefit because the defendant refuses to admit to the crime for which he has been convicted. See State v. Imlay, 249 Mont. 82, 813 P.2d 979, 983-85 (1991), cert. granted, 503 U.S. 905, 112 S.Ct. 1260, 117 L.Ed.2d 489, and cert. dismissed as improvidently granted, 506 U.S. 5, 113 S.Ct. 444, 121 L.Ed.2d 310 (1992); United States v. Wright, 533 F.2d 214, 216-17 (5th Cir.1976) (per curiam); United States v. Laca, 499 F.2d 922, 927-28 (5th Cir.1974). Other courts, however, have held that such conduct is not a constitutional violation. See State v. Gleason, 154 Vt. 205, 576 A.2d 1246, 1250-51 (1990); Gollaher v. United States, 419 F.2d 520, 530-31 (9th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424 (1969). Because of the split in the decisions by courts outside of North Dakota, we hold that the constitutional right that McMorrow claims the officials violated was not clearly established.
The second alternative assumes that McMorrow refused to admit his guilt by invoking his privilege against self-incrimination and that his admission of guilt would be incriminating evidence of perjury because he earlier testified at his trial that he did not commit the rape for which he was convicted. McMorrow argues that a convicted defendant's constitutional right against self-incrimination prevents state officials from making certain benefits conditional on the defendant's admission of guilt when the defendant invokes his privilege against self-incrimination and his admission would incriminate him. We will again assume without deciding that McMorrow is correct and that these facts constitute a violation of his right against self-incrimination.
Again we conclude that the officials are entitled to qualified immunity because it was not clearly established that this conduct was...
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