Searcy v. Simmons

• Decision Date: 21 April 2000
• Docket Number: No. CIV.A.97-3421-KHV.,CIV.A.97-3421-KHV.
• Citation: 97 F.Supp.2d 1055
• Parties: Edgar SEARCY, Plaintiff, v. Charles SIMMONS and Robert D. Hannigan, Defendants.
• Court: U.S. District Court — District of Kansas

97 F.Supp.2d 1055

Edgar SEARCY, Plaintiff, v. Charles SIMMONS and Robert D. Hannigan, Defendants.

No. CIV.A.97-3421-KHV.

United States District Court, D. Kansas.

April 21, 2000.

Paul W. Rebein, Matthew J. Wiltanger, Brent E. Dyer, Matthew C. Miller, Shook, Hardy & Bacon, L.L.P., Overland Park, KS, David J. Waxse, Kansas City, MO, for plaintiff.

Edgar Searcy, Hutchinson, KS, pro se.

Hsing Kan Chiang, Office of Attorney General, Topeka, KS, Timothy G. Madden, Topeka, KS, for defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiff brings suit under 42 U.S.C. § 1983, alleging that defendants violated his constitutional rights by reducing his inmate incentive level after he refused to enter into a sex abuse rehabilitation program at Hutchinson Correctional Facility. This matter comes before the Court on Defendants' Motion For Summary Judgment Or In The Alternative Judgment on The Pleadings (Doc. # 135) and Plaintiff's Motion For Summary Judgment (Doc. # 138), both filed November 5, 1999. For reasons stated below, defendants' motion for summary judgment is sustained and plaintiff's motion for summary judgment is overruled.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are undisputed, deemed admitted or where disputed, viewed in the light most favorable to plaintiff.

In January 1997, plaintiff entered a plea of nolo contendere to charges of sexual exploitation of a child. He is now serving a 65 month sentence at Hutchinson Correction Facility ["HCF"]. As part of his rehabilitation program, the Kansas Department of Corrections ["KDOC"] determined that plaintiff should be placed in the Sexual Abuse Treatment Program ["SATP"].¹ As a prerequisite to the SATP, prisoners are required to complete and sign an "Admission of Responsibility" form. The form requires an inmate to list all past behavior that may have constituted a sex offense, regardless whether the inmate was ever arrested, charged or convicted as a result of the conduct. Inmates who refuse to fill out the "Admission of Responsibility" form are considered to have "refused to participate" in the SATP and suffer an immediate loss of privileges. At the beginning of the program, SATP participants are informed that information which they provide during the program is not entirely confidential. If a participant identifies additional victims of sexual offenses who are children, SATP staff members are required to report those offenses to proper authorities. See K.S.A. § 38-1522. An inmate who participates in the SATP must also submit to penile plethysmograph and polygraph examinations.² Inmates who refuse to participate in these examinations can be terminated from the program, resulting in a loss of privileges.

In January 1996, KDOC implemented Internal Management Policy and Procedure ["IMPP"] 11-101, which was in effect at all times relevant to this lawsuit. IMPP 11-101 governs inmate privileges and incentives, and distinguishes several levels of privileges. At level 1, an inmate receives limited activities, limited expenditures, limited incentive pay, and only limited access to personal property. To move to a higher level, an inmate must participate in recommended programs for at least 120 days. IMPP 11-101 states that a given inmate's privilege level should be automatically reduced to level 1 if he refuses to participate in recommended programs. Prisoners who are assigned to the SATP but do not participate in it are denied any further "good time" credits.

On February 5, 1998, the SATP coordinator at HCF interviewed plaintiff for the SATP which was scheduled to begin on March 2, 1998. During the interview, however, plaintiff refused to complete and sign the "Admission of Responsibility" form. KDOC officials therefore refused to let him to participate in the SATP and reduced his incentive level from level 3 to level 1. They also removed personal items from plaintiff's cell. Plaintiff got a chance to designate a person to whom his property should be sent, but he declined to name anyone. Shortly thereafter, HCF officials sent plaintiff's property to his out-of-state relatives. Plaintiff does not expect his property to be returned.

Plaintiff claims that defendants have violated his constitutional right against self-incrimination and his constitutional rights to freedom of speech, free exercise of religion, privacy, bodily integrity, and due process. On August 13, 1999, the Court denied plaintiff's motion for a preliminary injunction. See Searcy v. Simmons, 68 F.Supp.2d 1197 (D.Kan.1999). Plaintiff and defendants now seek summary judgement on each of plaintiff's claims.

Analysis

I. Self-Incrimination

Plaintiff claims that defendants violated his Fifth Amendment rights against self-incrimination. In particular, plaintiff argues that by requiring him to complete an "Admission of Responsibility" form, the SATP compels him to reveal potentially incriminating information about his sexual history. Plaintiff contends that his refusal to provide incriminating information was the motivating factor for his loss of privileges and denial of good time benefits, 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 also Estelle v. Smith, 451 U.S. 454, 468, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (Fifth Amendment guarantees right to remain silent and to "suffer no penalty ... for such silence"). Although prison officials may not penalize an inmate who invokes his Fifth Amendment right, "prison officials may constitutionally deny benefits to a prisoner who, by invoking his privilege against self incrimination, refuses to make statements necessary for his rehabilitation as long as their denial is based on the prisoner's refusal to participate in his rehabilitation and not his invocation of his privilege." Doe v. Sauer, 186 F.3d 903, 906 (8th Cir.1999); see Johnson v. Baker, 108 F.3d 10, 12 (2d Cir.1997); Asherman v. Meachum, 957 F.2d 978, 980-83 (2d Cir.1992).

In denying plaintiff's motion for a preliminary injunction, and in a separate opinion in Johnston v. Simmons, D. Kan. No. 97-3354-KHV, Memorandum And Order (Doc. # 31) filed May 27, 1999, the Court has rejected plaintiff's self-incrimination argument. See Searcy, 68 F.Supp.2d at 1200-01. As here, plaintiff in Johnston argued that application of IMPP 11-101 violated his rights against self-incrimination. The Court rejected the argument in light of Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998). In Woodard, a death row inmate was forced to either confess his guilt or face a reduced chance of clemency. The United States Supreme Court rejected his Fifth Amendment claim, finding that because the inmate could choose whether to confess, any incrimination was voluntary; the fact that silence had possibly adverse consequences did not compel a confession for purposes of the Fifth Amendment. See id. at 285-86, 118 S.Ct. 1244. The Court opined:

[W]e do not think that respondent's testimony at a clemency interview would be "compelled" within the meaning of the Fifth Amendment. It is difficult to see how a voluntary interview could "compel" respondent to speak. He merely faces a choice quite similar to the sorts of choices that a criminal defendant must make in the course of criminal proceedings, none...