Searcy v. Simmons

• Decision Date: 19 August 2002
• Docket Number: No. 00-3161.,00-3161.
• Citation: 299 F.3d 1220
• Parties: Edgar SEARCY, Plaintiff-Appellant, v. Charles SIMMONS, Secretary of Corrections, Robert D. Hannigan, Warden, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

299 F.3d 1220 Edgar SEARCY, Plaintiff-Appellant,
v.
Charles SIMMONS, Secretary of Corrections, Robert D. Hannigan, Warden, Defendants-Appellees. No. 00-3161. United States Court of Appeals, Tenth Circuit. August 19, 2002.

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Matthew C. Miller (and Matthew J. Wiltanger, with him on the briefs), Shook, Hardy & Bacon, L.L.P., Overland Park, KS, for Plaintiff-Appellant.

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Timothy G. Madden, Kansas Department of Corrections, Topeka, KS, for Defendants-Appellees.

Before KELLY and McKAY, Circuit Judges and BRIMMER^*, District Judge.

PAUL KELLY, JR., Circuit Judge.

Plaintiff-Appellant Edgar Searcy, who at all times relevant to this appeal was an inmate housed in the Hutchinson Correctional Facility ("HCF"), brought an action pursuant to 42 U.S.C. § 1983 alleging violation of certain constitutional rights stemming from the Kansas Department of Corrections' ("KDOC") Sexual Abuse Treatment Program ("SATP"). The district court entered summary judgment in favor of Defendants on all claims and Mr. Searcy timely filed his notice of appeal. Searcy v. Simmons, 97 F.Supp.2d 1055 (D.Kan.2000). We abated briefing pending a sister panel's decision in Lile v. McKune, 224 F.3d 1175 (10th Cir.2000), which addressed an inmate's similar allegations of violations of constitutional rights stemming from operation of the SATP. Upon publication of that decision, briefs were filed and we heard oral argument, but we abated decision on the case after the Supreme Court granted certiorari in Lile. The Supreme Court reversed the Tenth Circuit's decision in Lile and remanded the case. McKune v. Lile, ___ U.S. ___, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). Although the facts in this case differ slightly from those in McKune, we conclude that it controls.

Background

In January 1997, Mr. Searcy entered a plea of nolo contendere to charges of sexual exploitation of a child and was sentenced to 65 months imprisonment. To assist in the rehabilitation of sex offenders and other inmates with a history of sexually deviant behavior, the KDOC instituted the SATP. Because of his conviction of a sex offense, the KDOC recommended that Mr. Searcy be placed in the SATP. Mr. Searcy accepted this recommendation by signing an inmate program plan that stated,

I acknowledge that I have been afforded an opportunity to enter into a program plan. I understand that such a program plan is optional but that failure to participate in or successfully complete recommended programs shall result in the withholding of good time credits which affect my date of release.

Aplee. Supp.App. at 15.

Inmates in the SATP must complete and sign a form stating that they accept responsibility for the crime for which they have been sentenced. In addition, inmates in the SATP must complete a sexual history form. In completing the sexual history form, the inmates must list sexual activities where they were the perpetrator and a victim was involved, regardless of whether criminal charges were brought in response to the activity in question. Although inmates in the SATP apparently are not required to divulge full details of these prior incidents, see Aplee. Supp.App. at 56, they are provided a sample sexual history form that calls for the name of the victim, the victim's age, and the age of the inmate at the time of the incident. Aplt. App. at 243. The SATP uses a polygraph examination to verify the truth and completeness of each inmate's sexual history.

An inmate's sexual history receives limited confidentiality. They are informed that the information they provide could be revealed in a variety of circumstances, including when required under mandatory child abuse reporting laws, see Kan. Stat. § 38-1522, pursuant to a court order, or

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when the information is needed to protect a third party. See McKune, ___ U.S. at ___, 122 S.Ct. at 2023 (noting that release of the sexual history information is a possibility).

Mr. Searcy refused to sign the admission of responsibility form on the ground that he was not willing to admit to having committed the crime of sexual exploitation of a child.¹ Certain consequences resulted from this refusal. At all times relevant to this case, the KDOC had in effect its Internal Management Policy and Procedure 11-101 ("IMPP"). The IMPP, implemented to provide a system of earnable privileges subsequent to changes in Kansas sentencing laws, establishes levels of privileges and incentives to inmates. The lowest level, level one, allows an inmate limited activities, limited expenditures, limited incentive pay, and only limited access to personal property. At level three, the highest level for an incarcerated inmate and the level at which the KDOC had classified Mr. Searcy prior to his refusal to sign the required forms for the SATP, inmates may purchase audiovisual equipment, handicraft materials and supplies, participate in all organizations and formalized activities, maintain magazine and newspaper subscriptions, and have other expenditure and visitation privileges not available at the lower levels.

In addition, under the pertinent prison regulations, inmates that do not "constructively work or participate in assigned programs" lose the ability to earn any additional good time credits. Kan. Admin. Reg. § 44-6-124(g)(6). Because the KDOC considers the admission of responsibility and sexual history an integral part of the rehabilitative process of the SATP, an inmate's refusal to provide these is deemed a refusal to participate in an assigned program. As a result, an inmate that refuses to provide the required information loses the opportunity to earn any further good time credits. In addition, those good time credits that an inmate loses due to his non-participation cannot be regained. Kan. Admin. Reg. § 44-6-124(e) ("If the entire allocation of good time credits is not awarded at a program classification review, part of that allocation shall not be awarded at a later date.").

As a result of these policies, Mr. Searcy's refusal to admit responsibility and to provide his sexual history resulted in his reduction from level three to level one. Pursuant to the reduction in his privilege level, prison officials took Mr. Searcy's television, radio, and typewriter. In doing so, prison officials informed Mr. Searcy that the property would be sent outside of the HCF. Mr. Searcy refused to sign the consent form for this removal because he apparently had no one outside the prison to care for the property. The prison officials then sent the property to Mr. Searcy's out-of-state relatives whom Mr. Searcy believes will never return his property to him.

Mr. Searcy then brought this § 1983 action, alleging that prison officials had violated various constitutional rights, including: (1) his Fifth Amendment right against self-incrimination; (2) his Freedom of Speech under the First Amendment when they punished him for asserting his right to remain silent; (3) his right of Free

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Exercise of Religion when they punished him for adhering to his religious tenets by not untruthfully admitting to crimes he did not commit; and (4) his rights under the Due Process Clause of the Fourteenth Amendment when they sent his property from the HCF without his consent. On cross-motions for summary judgment, the district court rejected all of Mr. Searcy's claims of constitutional violations and granted the Defendants' motion for summary judgment.

Discussion

In this appeal, Mr. Searcy challenges the district court's grant of summary judgment to the Defendants on his Self-Incrimination, Free Exercise of Religion, and Due Process claims. We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court. Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Serv., 165 F.3d 1321, 1326 (10th Cir.1999). When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Id.

Self-Incrimination

In Lile v. McKune, 224 F.3d 1175 (10th Cir.2000), the panel concluded that the KDOC's policy of imposing penalties for an inmate's refusal to participate in the SATP for fear of self-incrimination violated the Fifth Amendment. The inmate in that case, Robert Lile, received a reduction in his privilege level and a transfer to a maximum security prison for his refusal to divulge his sexual history as part of the SATP. Id. at 1182. The panel concluded that the imposition of these penalties for a refusal to provide potentially self-incriminating statements constituted "impermissible compulsion." Id. at 1189.

A divided Supreme Court reversed. Four Justices stated that the question of whether the KDOC compelled self-incriminating statements from SATP participants could be answered by looking to the standard enunciated by the Supreme Court in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). McKune v. Lile, ___ U.S. ___, ___ _ ___, 122 S.Ct. 2017, 2026-27, 153 L.Ed.2d 47 (2002). In Sandin, the Supreme Court held that challenged prison conditions could not give rise to a due process violation unless those conditions constitute "atypical and significant hardship[s] on [inmates] in relation to the ordinary incidents of prison life." Id. at 484. Based on Sandin's "useful instruction," McKune, ___ U.S. at ___, 122 S.Ct. at 2027, the plurality concluded that the penalties imposed against Lile were significantly less than potential penalties other inmates faced in cases where the Supreme Court ruled that there was no Fifth Amendment violation. See, e.g., Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) (no Fifth Amendment violation where inmate's silence could be used against him in a prison disciplinary proceeding); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (no Fifth Amendment violation where death row inmate was forced to choose between...