F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 29 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MARVIN W. JOHNSTON,
Plaintiff - Appellant,
v. No. 99-3193
(D.C. No. 97-CV-3354-KHV)
CHARLES SIMMONS, Secretary of (D. Kansas)
Corrections, and DAVID MCKUNE,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, ANDERSON and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Appellant Marvin Johnston, a state prisoner appearing pro se, appealed
from summary judgment granted in favor of defendants on his suit brought
pursuant to 42 U.S.C. § 1983. Mr. Johnston claimed that, by taking away his
privileges and otherwise penalizing him for refusal to participate in the Kansas
sexual abuse treatment program (SATP), defendants (1) violated the prohibition
on ex post facto laws contained in the United States Constitution, art. I, § 9, cl. 3;
(2) improperly penalized him for exercising his right to freedom of speech under
the First Amendment; (3) violated his Fifth Amendment due process rights by
infringing on a liberty interest; (4) violated his Fifth Amendment right against
self-incrimination; and (5) denied him due process under the Fourteenth
Amendment. See R. Doc. 25, at 3-4a. He sought declaratory and injunctive relief
prohibiting recommendation of rehabilitative programs (and the penalties imposed
by his refusal to participate) unless he voluntarily requested the program. See id.
at 5.
On October 31, 2000, we entered an order reversing in part, vacating in part,
and remanding in part Mr. Johnston’s suit. Johnston v. Simmons , No. 99-3193,
2000 WL 1629971 (10th Cir. Oct. 31, 2000) (unpublished). Our decision was
based on the holding of Lile v. McKune , 224 F.3d 1175 (10th Cir. 2000) (holding
that the Kansas SATP violates the Fifth Amendment rights of inmates who are not
granted immunity or otherwise guaranteed confidentiality for disclosing prior sex
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crimes), rev’d , McKune v. Lile , 536 U.S.__, 122 S. Ct. 2017 (2002). Appellees
appealed to the United States Supreme Court, and upon appellees’ request, we
stayed the mandate.
After reversing our decision in Lile , the Supreme Court of the United States
entered a judgment on June 17, 2002, vacating our judgment in this case and
remanding the cause for further consideration in light of its opinion in McKune .
Simmons v. Johnston , No. 00-1231, 122 S. Ct. 2583 (2002). As a result of this
judgment, on August 7, 2002, we vacated our prior judgment. We have vacated
our opinion in Lile and recently remanded the case to the district court with
directions to dismiss the complaint in its entirety, concluding that Mr. Lile’s
claims brought pursuant to the Fourth and Fifth Amendments do not rise to the
level of compulsion contemplated by the plurality opinion as expressed by Justice
O’Connor. Lile v. McKune , __ F.3d __, __ (10th Cir. 2002); see McKune ,
122 S. Ct. at 2032-35.
Upon further review of Mr. Johnston’s Fifth Amendment self-incrimination
claim, we conclude that the identity of material facts between Mr. Johnston’s and
Mr. Lile’s circumstances requires us to conclude that the penalties complained of
likewise do not rise to the level of compulsion contemplated in McKune . We
therefore affirm the dismissal of those claims.
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We did not reach Mr. Johnston’s remaining issues in our previous decision.
Mr. Johnston argues that the district court abused its discretion in not ordering
further discovery before it ruled on his due process and ex post facto claims, and
continues to argue that punishing him for saying “no” to participation in the SATP
program violates his First Amendment right to freedom of speech. Upon review of
Mr. Johnston’s brief, the district court’s orders, and the record on appeal, we find
no reversible error and affirm for substantially the same reasons set forth by the
district court.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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