F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 4 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
MARK E. CARROLL,
Plaintiff-Appellant, No. 03-3236
v. (D.C. No. 00-CV-3402-GTV)
CHARLES SIMMONS, Secretary of (D. Kansas)
Corrections; L. E. BRUCE, Warden,
Hutchinson Correctional Facility;
CARLA STOVALL, Attorney General;
DONALD DAHL; and WAYNE
BRAWNER, Warden,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and HARTZ , 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Plaintiff Mark E. Carroll, appearing pro se, appeals the dismissal of a civil
rights action in which he challenged a sexual-abuse-treatment program in Kansas
prisons. The district court dismissed the action. We affirm.
I. BACKGROUND
Plaintiff was convicted of rape and aggravated sodomy, and is currently
incarcerated in Hutchinson Correctional Facility in Hutchinson, Kansas, serving a
fifteen-year-to-life sentence. In light of the nature of Plaintiff’s convictions,
prison officials concluded that he should participate in the Kansas Sexual Abuse
Treatment Program (SATP). The program requires inmates to admit
responsibility for the crime for which they have been committed and to complete
a sexual history form. Plaintiff has not been permitted to participate in the
program due to his refusal to admit to his crimes and to his pursuit of habeas
relief on the ground that he is actually innocent. Because he is not enrolled in the
SATP, Plaintiff remains at incentive level one of the Kansas Department of
Corrections earnable-privilege system. He is consequently treated less favorably
than he was before he refused to participate in the SATP.
On October 26, 2000, Plaintiff filed an action against Charles Simmons, the
Secretary of the Kansas Department of Corrections, and Louis E. Bruce, the
warden of the Hutchinson Correctional Facility, under 42 U.S.C. § 1983, alleging
that his constitutional rights were being violated by the SATP. His complaint
-2-
alleged that (1) punishing him for refusing to admit his guilt amounted to a
violation of his Fifth Amendment privilege against self-incrimination; (2) Kansas
Secretary of Corrections Internal Management Policy and Procedure (IMPP) 11-
101 was improperly being applied to him retroactively; (3) he had been subjected
to harassment, defamation of character, and discrimination; (4) his property had
been taken from him; (5) he lost good-time credits and was denied a parole
hearing because he was not enrolled in the SATP; (6) he had been denied equal
protection of the law; (7) his Eighth Amendment rights had been violated; and (8)
his Fourth Amendment rights had been violated. On February 26, 2001, Plaintiff
filed an amended complaint naming as additional defendants, Carla Stovall,
Kansas Attorney General, Donald Dahl, a member of the Kansas House of
Representatives, and Wayne Brawner, Classification Administrator of the
Hutchinson Correctional Facility. The amended complaint also contained the
following new claims: (1) that Kan. Stat. Ann. §§ 22-3717 and 75-5210(a) were
improperly being applied to him retroactively; and (2) that he had been denied
privileges and immunities. The crux of Plaintiff’s complaints, however, was that
he was suffering from a violation of his Fifth Amendment rights similar to the
violation that had been found in Lile v. McCune, 224 F.3d 1175 (10th Cir. 2000).
On January 16, 2002, Plaintiff filed a “Motion for Provisional Remedies” in
which he complained about being held under maximum-custody conditions in
-3-
violation of the Eighth Amendment, and discussed issues relating to sentencing
and parole in some detail. Then, while Plaintiff’s case was pending, the Supreme
Court reversed this court’s decision in Lile, holding that the SATP did not violate
Mr. Lile’s Fifth Amendment privilege against self-incrimination. McCune v. Lile,
536 U.S. 24, 48 (2002). As a result, the district court in this case issued an order
directing Plaintiff to show cause why his claims should not be dismissed under
McCune. The order also denied Plaintiff’s “Motion for Provisional Relief,”
rejecting his attempt to amend the complaint to add new claims and noting that
Plaintiff had already amended his complaint once.
In response to the show-cause order, Plaintiff asserted that his privilege
against self-incrimination was being violated (notwithstanding the Supreme
Court’s decision in McCune). He also contended that (1) he was being denied the
same privileges as other inmates as a result of his refusal to make a false
confession (we consider this argument to be a combination of Plaintiff’s equal-
protection claim and his claim for violation of his privilege against self-
incrimination); (2) he had suffered a loss of good-time credits, denial of parole
hearings, and a lengthening of his sentence for refusing to make a false
confession (we view this as simply a restatement of Plaintiff’s claim that his
privilege against self-incrimination had been violated); (3) Kan. Stat. Ann. §§ 22-
3717 and 75-5210(a) were being improperly applied to him retroactively; (4) his
-4-
Eighth Amendment rights were being violated because his sentence had been
unlawfully lengthened, and because he had been falsely imprisoned and punished
for refusing to make a false confession; and (5) he had been subjected to double
jeopardy by the parole board’s consideration of the serious nature of the offenses
of which he had been convicted when deciding whether he should be paroled.
On July 24, 2003, the district court concluded that “plaintiff’s claims under
the Fifth Amendment are defeated by McCune v. Lile,” and dismissed Plaintiff’s
claims. R. Doc. No. 20 at 2. The court also noted that “[t]o the extent plaintiff
pursues relief on sentencing and parole claims, the court previously denied
plaintiff leave to amend the complaint to add such claims.” Id. at 1.
Plaintiff now appeals. As best we can understand his brief, he contends
that (1) his due process and equal protection rights are being violated because,
despite having rescinded his refusal to participate in the SATP, he is denied
advancement in level due to his pursuit of federal habeas relief based on a claim
of actual innocence; (2) he is being subjected to cruel and unusual punishment;
(3) Kansas has labeled him mentally ill without a civil commitment hearing; (4)
his due process rights have been violated as a result of his being punished for not
submitting to forced psychological treatment; (5) because he is permanently on
level-one status, he is improperly being subjected to solitary confinement; (6)
because he is unable to advance in levels, he has only minimal access to the
-5-
courts and “legal tools”; (7) his equal-protection rights are being violated because
he is not treated like other prisoners; (8) Kansas has knowingly attempted to force
him to make false confessions; (9) the Kansas level system is improperly being
applied to him retroactively, in violation of the Ex Post Facto Clause; (10) he has
suffered a permanent reduction in wages as a result of his inability to advance
beyond level one; (11) his sentence was extended (apparently in violation of his
privilege against self-incrimination); (12) he has been denied a parole hearing
(apparently in violation of his privilege against self-incrimination); (13) the
district court erred when it dismissed his claims after Defendants failed to file a
Martinez report, see Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), and to
answer Plaintiff’s complaint, in violation of the court’s own order; (14) the
district court failed to timely decide the case, but instead waited for the Supreme
Court’s decision in McCune; and (15) the district court should have addressed the
supplemental issues raised in Plaintiff’s response to the show-cause order, and
permitted him to name new defendants.
II. STANDARD OF REVIEW
We review the dismissal of Plaintiff’s complaint de novo. See Clark v.
State Farm Mut. Auto. Ins. Co., 319 F.3d 1234, 1240 (10th Cir. 2003).
“Dismissal of a pro se complaint for failure to state a claim is proper only where
it is obvious that the plaintiff cannot prevail on the facts he has alleged and it
-6-
would be futile to give him an opportunity to amend.” Perkins v. Kan. Dep’t of
Corr., 165 F.3d 803, 806 (10th Cir. 1999). “[W]e must liberally construe the
allegations of a pro se complaint.” Id. “In determining whether dismissal is
proper, we must accept the allegations of the complaint as true and we must
construe those allegations, and any reasonable inferences that might be drawn
from them, in the light most favorable to the plaintiff.” Id.
III. DISCUSSION
Of Plaintiff’s 15 contentions on appeal, contentions (1), (3), (4), (5), (6),
(10), (13), and (14) were not raised below. We address only those contentions
that he preserved in the district court. See Smith v. Rogers Galvanizing Co., 128
F.3d 1380, 1385-86 (10th Cir. 1997).
A. Contention 2: Eighth Amendment
Plaintiff asserts that the consequences of his failure to participate in the
SATP amount to cruel and unusual punishment, in violation of the Eighth
Amendment. We recently rejected a nearly identical argument in Gwinn v. Miller,
2004 WL 49840, *14 (10th Cir. 2004). We again conclude that the loss of certain
privileges and good-time credits due to a refusal to participate in a treatment
program designed to rehabilitate sex offenders does not rise to the level of cruel
and unusual punishment.
B. Contention 7: Equal Protection
-7-
Plaintiff alleges that his equal-protection rights are being violated because
he is not treated the same as other prisoners. “[A]bsent an allegation of a suspect
classification, our review of prison officials’ differing treatment of various
inmates is quite deferential: in order to withstand an equal-protection challenge,
those classifications must be reasonably related to a legitimate penological
purpose.” Gwinn, 2004 WL 49840 at *15. Plaintiff’s treatment differs from that
of other inmates because he has refused to participate in the SATP. Prison
officials determined that Plaintiff (as opposed to some other prisoners) should
participate in the program because he had committed sex offenses. As we held in
Gwinn, a requirement that a sex offender participate in a treatment program bears
a rational relationship to rehabilitative objectives. Id. Accordingly, we reject
Plaintiff’s equal-protection claim.
C. Contentions (8), (11), and (12): Privilege Against Self-
incrimination
To the extent that Plaintiff continues to allege a violation of his Fifth
Amendment privilege against self-incrimination, we conclude that the district
court properly dismissed his claim. In McCune the Supreme Court held that the
Kansas SATP—the same program involved in this case—did not violate the
plaintiff’s right against self-incrimination. See McCune, 536 U.S. at 48-49
(O’Connor, J., concurring). The circumstances addressed in that case are virtually
identical to those faced by Plaintiff, with the only notable distinction being that
-8-
Plaintiff, unlike the plaintiff in McCune, alleged that he had been denied good-
time credits (resulting in ineligibility for parole) as a result of his refusal to admit
guilt. See R. Doc. No. 5 at 3; McCune, 536 U.S. at 38 (“In the present case,
respondent’s decision not to participate in the Kansas SATP did not extend his
term of incarceration. Nor did his decision affect his eligibility for good-time
credits or parole.”). But any attempt by Plaintiff to distinguish his situation from
that involved in McKune on this basis must fail in light of our decision in Searcy
v. Simmons, 299 F.3d 1220, 1226-27 (10th Cir. 2002), which held that the
plaintiff’s privilege against self-incrimination was not violated even though his
refusal to make the admissions required for participation in a sexual-abuse-
treatment program caused him to lose good-time credits. Moreover, in Gwinn,
2004 WL at *13, in the course of rejecting a similar argument, we noted that
“parole decisions are . . . discretionary,” and held that Mr. Gwinn’s “choice
between the opportunity to earn [good-time] credits . . . and retain favorable
parole status or declining that opportunity by refusing to participate in the
treatment program . . . did not rise to a level where it [was] likely to compel a
person to be a witness against himself.” See also Payne v. Kan. Parole Bd., 887
P.2d 147, 151 (Kan. Ct. App. 1994) (“The [Kansas Parole Board] has sole
authority to grant or deny parole and is vested with broad discretion in how it
-9-
determines if inmates will be paroled.”). Accordingly, we conclude that the
district court correctly dismissed Plaintiff’s Fifth Amendment claim.
D. Contention 9: Retroactive Application of IMPP 11-101
Plaintiff’s crimes occurred on November 18, 1990. The incentive-level
system of which he complains was implemented by IMPP 11-101, which took
effect in 1996. See Vinson v. McKune, 960 P.2d 222, 223 (Kan. 1998). Plaintiff
consequently contends that the application of IMPP 11-101 to him amounts to a
violation of the Ex Post Facto Clause.
The Kansas Supreme Court has considered this issue. It concluded that
although IMPP 11-101 “may affect the conditions upon which the inmate’s
sentence is served,” its provisions “do not increase punishment beyond what was
prescribed when the crime was consummated,” and therefore do not violate the Ex
Post Facto Clause. Vinson, 960 P.2d at 224-25. We agree. “[T]he ex post facto
prohibition . . . forbids the imposition of punishment more severe than the
punishment assigned by law when the act to be punished occurred.” Weaver v.
Graham, 450 U.S. 24, 30 (1981). The incentive-level system simply provides a
mechanism by which the Department of Corrections may effectively manage
prisoners. Its application to Plaintiff has not resulted in an increase in the penalty
for the offenses of which he was convicted. Plaintiff has therefore not stated a
claim for an ex post facto violation.
-10-
E. Contention 15: District Court’s Refusal to Allow Plaintiff to
Amend his Complaint
Plaintiff asserts that the district court should have considered supplemental
issues that he raised in his response to the show-cause order. The court’s ruling
was correct, however, because the supplemental issues lacked merit. The sole
new issue raised was the claim that he was subjected to double jeopardy when the
Parole Board considered the serious nature of the crime of which he was
convicted. We disagree.
“The Double Jeopardy Clause protects defendants against (1) a second
prosecution for the same offense after acquittal, (2) a second prosecution for the
same offense after conviction, and (3) multiple punishments for the same
offense.” Anderson v. Mullin, 327 F.3d 1148, 1153 (10th Cir. 2003) (internal
quotation marks omitted). “Because the denial of parole does not change the
length of a prisoner’s sentence, it is not the imposition of more than one
punishment for the same offense as prohibited by the double jeopardy clause.”
Mahn v. Gunter, 978 F.2d 599, 602, n.7 (10th Cir. 1992) (internal quotation marks
omitted); see also Kell v. United States Parole Comm’n, 26 F.3d 1016, 1020 (10th
Cir. 1994) (“Parole determinations are not viewed as criminal punishment subject
to the Double Jeopardy Clause.”) Plaintiff has consequently not been subjected to
double jeopardy. He has not been prosecuted a second time, and the Parole
Board’s decision to deny him parole does not constitute an additional punishment
-11-
for the same offense. Therefore, Plaintiff’s response to the show-cause order
does not state a claim for a double jeopardy violation.
IV. CONCLUSION
WE AFFIRM the district court’s dismissal of Plaintiff’s claims.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-12-