Reed v. McKune, 00-3255.

• Decision Date: 26 July 2002
• Docket Number: No. 00-3255.,00-3255.
• Citation: 298 F.3d 946
• Parties: Luke REED, Plaintiff-Appellant, v. David R. McKUNE, Warden, Lansing Correctional Facility; Charles Simmons, Secretary of Corrections, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 946

298 F.3d 946

Luke REED, Plaintiff-Appellant, v. David R. McKUNE, Warden, Lansing Correctional Facility; Charles Simmons, Secretary of Corrections, Defendants-Appellees.

No. 00-3255.

United States Court of Appeals, Tenth Circuit.

July 26, 2002.

COPYRIGHT MATERIAL OMITTED

Jean K. Gilles Phillips, The Paul E. Wilson Defender Project, University of Kansas School of Law, Lawrence, KS, for Plaintiff-Appellant.

Brian R. Johnson, Assistant Attorney General, Topeka, KS, for Defendants-Appellees.

Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and LUCERO, Circuit Judge.

LUCERO, Circuit Judge.

Luke Reed, a Kansas state prisoner serving a life sentence for aggravated kidnaping and rape, appeals the district court's grant of summary judgment to defendants on his 42 U.S.C. § 1983 claim for injunctive and monetary relief. He alleges that his constitutional rights have been violated by prison officials who have ordered him either to participate in Kansas's Sexual Abuse Treatment Program ("SATP" or "program") or suffer the revocation of certain prison privileges and the denial of parole. We reserved judgment on this case pending the Supreme Court's review of this Circuit's opinion in Lile v. McKune, 224 F.3d 1175 (10th Cir.2000). In light of the Court's decision, McKune v. Lile, ___ U.S. ___, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (plurality opinion), we conclude that there is no merit to his claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

Reed was convicted in June 1982 of aggravated kidnaping and rape, for which he received sentences, respectively, of life imprisonment and fifteen years to life. He became eligible for parole in June 1997. While imprisoned, Reed worked his way from a Level I security designation to Level III, thus earning him privileges including higher wages, more spending money, and the ability to possess electronic equipment in his cell.

Upon reaching the Level III classification, Reed was ordered to participate in the prison's SATP. Among other things, the program requires an inmate to disclose his sexual history, including the crime of which he was convicted, along with any uncharged sexual offenses. No confidentiality is accorded to these disclosures, the admissions may be used against the inmate in future criminal prosecutions, and any information provided that concerns a sexual offense against a minor must by statute be disclosed to the proper authorities. See Kan. Stat. Ann. § 38-1522. In addition, participants in the SATP are required to submit to polygraph and penile plethysmograph testing. Although Reed initially acquiesced to the order to join the program, he ultimately refused to participate-a decision that resulted in his automatic transfer to maximum security with a security classification of Level I and imposition of a number of attendant sanctions, including restrictions on visitation rights, prisonyard privileges, participation in prison organizations, and possession of personal property.

In June 1996, Reed filed a petition for a writ of habeas corpus in state district court, alleging that he was being forced to participate in the SATP in violation of his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. The state district court dismissed the petition, and Reed withdrew his appeal of this decision before it could be resolved by the state appellate courts. In December 1998, Reed initiated the present § 1983 suit in federal district court, alleging (1) that requiring him to sign a document admitting guilt and detailing all past sexual experiences violated his Fifth Amendment privilege against self-incrimination; (2) that his punishment for refusing to participate in the SATP violated his Fourteenth Amendment substantive and procedural due process rights; (3) that his punishment for refusing to participate in the SATP violated the Ex Post Facto Clause; and (4) that the use of penile plethysmograph testing would violate his Fourth Amendment right to privacy and his Fifth Amendment right not to incriminate himself. He prayed for both injunctive relief and monetary damages.

The district court granted summary judgment to defendants, and Reed now appeals.

II

We review the district court's grant of summary judgment de novo, applying the same legal standards used by the district court. See Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1259 (10th Cir.1998). Summary judgment is appropriate "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 a judgment as a matter of law." Fed. R.Civ.P. 56(c). In reviewing a summary judgment motion, the court is to view the record "in the light most favorable to the nonmoving party." Thournir v. Meyer, 909 F.2d 408, 409 (10th Cir.1990) (citation omitted).

A

Defendants argue that each of Reed's claims was previously raised in his state petition for a writ of habeas corpus, that each was adjudicated by the state district court, and that Reed is therefore barred under the principles of res judicata and collateral estoppel from re-asserting these claims in a § 1983 action in federal court. Although we do not agree in full with this argument, we conclude that the bulk of Reed's claims are barred on res judicata and collateral estoppel grounds.

Most, but not all, of the claims that Reed makes in the present § 1983 action were likewise made before the state district court in his petition for a writ of habeas corpus. Whether the doctrines of res judicata and collateral estoppel bar Reed's claims is an issue to be determined under Kansas law. "In determining whether a state court judgment precludes a subsequent action in federal court, we must afford the state judgment full faith and credit, giving it the same preclusive effect as would the courts of the state issuing the judgment." Rhodes v. Hannigan, 12 F.3d 989, 991 (10th Cir.1993); see also 28 U.S.C. § 1738 (providing that state judicial proceedings "shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken").

The doctrine of res judicata prohibits litigation of certain claims based on the resolution of an earlier action between the same parties. "Under res judicata, a final judgment on the merits of an action precludes the parties ... from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Under Kansas law, an issue is res judicata when there is a "concurrence" of four conditions: "(1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made." Steele v. Guardianship & Conservatorship of Crist, 251 Kan. 712, 840 P.2d 1107, 1114 (Kan.1992) (quotation omitted).¹

The doctrine of collateral estoppel prevents a second litigation of the same issues between the same parties or those in privity with the parties. Under Kansas law, the requirements of collateral estoppel are:

(1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment; (2) the parties must be the same or in privity; and (3) the issue litigated must have been determined and necessary to support the judgment.

Kan. Pub. Employees Ret. Sys. v. Reimer & Koger Assocs., 262 Kan. 635, 941 P.2d 1321, 1344 (Kan. 1997) ("KPERS") (quotation omitted). The Supreme Court has specifically noted that the doctrine of collateral estoppel is applicable in the § 1983 context, because there is "no reason to believe that Congress intended to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court." Allen, 449 U.S. at 104, 101 S.Ct. 411.

Reed's request for an injunction to prevent defendants from forcing him either to participate in the SATP or else forego a host of prison privileges has already been adjudicated in state court. We conclude that, to the degree Reed's request for such an injunction is premised on the alleged violation of his Fourteenth Amendment substantive and procedural due process rights, his Fourth Amendment right to privacy, or his Fifth Amendment right not to incriminate himself by submitting to polygraph and plethysmograph testing, the matter is res judicata and therefore not assertable in this action. Stated simply, the four conditions set forth by the Supreme Court of Kansas for applicability of the doctrine of res judicata have been met with respect to Reed's request for an injunction premised on these alleged constitutional violations.

Res judicata does not, however, bar Reed's claim for money damages based on the alleged violations enumerated in the above paragraph. To the contrary, we have previously held that under Kansas law the doctrine of res judicata does not preclude a § 1983 action for monetary damages when a prisoner's claims have previously been adjudicated in a state habeas corpus proceeding because habeas corpus and § 1983 actions are premised on different wrongs. See Rhodes, 12 F.3d at 991 (noting that a petition for habeas corpus "attacks the fact or duration of a prisoner's confinement and seeks the remedy of immediate release or a shortened period of confinement," while a civil rights action for damages pursuant to § 1983 "attacks the conditions of the prisoner's confinement and requests monetary compensation for such conditions" (citation omitted)). Nonetheless, because the requirements set forth by the Supreme Court of Kansas for collateral estoppel have been met with respect to the adjudication of these alleged...