F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 26 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSEPH EDMOND DEYONGHE,
Plaintiff-Appellant,
No. 04-6218
v. (D.C. No. 03-CV-364-R)
(W.D. Okla.)
ROBIN WARD, Case Manager;
CAROL CLOUD, Counselor; FRANK
MORRIS, Case Manager; DAVID
PETETE, Auditor; ERIC FRANKLIN,
Warden; MELINDA GUILFOYLE,
Director designee for the DOC,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and KELLY , 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This order and judgment is not binding precedent, except under the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.
Joseph DeYonghe, an inmate in the Oklahoma prison system, brought three
claims against defendants under 42 U.S.C. § 1983. The first claim, which alleged
violations of Mr. DeYonghe’s right to due process, was dismissed as untimely.
The district court granted summary judgment to defendants on both the second
claim, alleging a violation of Mr. DeYonghe’s right against self-incrimination,
and the third claim, also concerning due process. Mr. DeYonghe appeals. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
In Oklahoma, inmates are classified into one of four class levels for
purposes of earning good-time credits, and classifications are periodically
reviewed by adjustment review committees. See Okla. Stat. tit. 57, § 138(B), (F).
On December 3, 1998, when he was at Class Level 4 (the highest good-time-
credit-earning level), Mr. DeYonghe had a classification adjustment review. One
of the subjects addressed at the review was whether he should be admitted into
the Oklahoma Department of Corrections’ (ODOC) sex offender treatment
program (SOTP). To participate in the SOTP, Mr. DeYonghe was required to
admit his sexual offenses. He refused to do so at the review, citing the protection
against self-incrimination provided by the Fifth Amendment to the U.S.
Constitution. Next to the blank labeled “Refused,” a member of the adjustment
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review committee wrote “SOT Denies Guilt.” R. Doc. 21, Attach. B. Mr.
DeYonghe did not participate in the SOTP, and he remained at Class Level 4.
On or about August 25, 2000, an ODOC auditor noted that Mr. DeYonghe
had refused participation in the SOTP on December 3, 1998. He also noted that
Mr. DeYonghe had continued to be at Class Level 4, even though a program
refusal should have placed him at Class Level 1. Mr. DeYonghe was notified that
he had erroneously been earning good-time credits at a Class Level 4 rate since
December 3, 1998, and that, as a consequence, 719 earned credits were being
deducted from his record. He was also informed that he would remain at Class
Level 1 until he accepted the SOTP.
Mr. DeYonghe protested the loss of his credits through the prison grievance
process and into the Oklahoma state courts. Following its decision in Childers v.
Booher , No. HC 2001-0440, at 9 (Okla. Crim. App. May 9, 2002) (unpublished
decision), which found the SOTP program in violation of the self-incrimination
provisions of the Oklahoma Constitution, the Oklahoma Court of Criminal
Appeals granted Mr. DeYonghe’s request for extraordinary relief and remanded
the proceedings to the district court. DeYonghe v. Guifoyle , No. MA 2002-0178
(Okla. Cr. App. May 21, 2002). Mr. DeYonghe regained his 719 good-time
credits.
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After successfully challenging the deduction of his credits, Mr. DeYonghe
brought suit, in the district court under § 1983, against the officials allegedly
involved in the adjustment review and in deducting his credits. Accepting a
comprehensive report and recommendation by the magistrate judge, the district
court determined that one of Mr. DeYonghe’s claims was time-barred and that
correctional officials were entitled to qualified immunity on his remaining two
claims. 1 It dismissed the untimely claim and granted summary judgment to
defendants on the two other claims. Mr. DeYonghe appeals.
II.
Before we reach the merits of Mr. DeYonghe’s claims, we must determine
whether Mr. DeYonghe exhausted his administrative remedies, as required by the
Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Complete
exhaustion of administrative remedies generally is a mandatory prerequisite to
filing a § 1983 claim concerning prison life. Id. ; Jernigan v. Stuchell , 304 F.3d
1030, 1032 (10th Cir. 2002).
1
The district court also determined that Mr. DeYonghe’s claims for
monetary relief against the defendants in their official capacities were barred by
the Eleventh Amendment. R. Doc. 32 at 2. On appeal, Mr. DeYonghe asserts
that he is pursuing claims for monetary relief against defendants only in their
personal capacities, Aplt. Br. at 2, and consequently we need not consider the
district court’s Eleventh Amendment ruling. See Hafer v. Melo , 502 U.S. 21,
30-31 (1991) (Eleventh Amendment does not bar claims for monetary damages
against officials in their individual capacities).
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With regard to Mr. DeYonghe’s first claim, the record does not indicate
that he ever raised in any grievance the issue of the composition of the adjustment
review panel. This omission indicates that this particular claim was not
exhausted. Ordinarily, a petition containing unexhausted claims must be
dismissed without prejudice in its entirety. Ross v. County of Bernalillo , 365 F.3d
1181, 1189-90 (10th Cir. 2004). But the PLRA also provides that the court may
dismiss a claim without requiring exhaustion, “[i]n the event that a claim is, on its
face, frivolous, malicious, fails to state a claim upon which relief can be granted,
or seeks monetary relief from a defendant who is immune from such relief.” 42
U.S.C. § 1997e(c)(2). For the reasons discussed in section III below, we conclude
that Mr. DeYonghe’s first claim falls within § 1997e(c)(2), and we need not
remand for the district court to dismiss the complaint for lack of exhaustion.
With regard to Mr. DeYonghe’s second and third claims, the government
argues that, because Mr. DeYonghe did not file a claim with the Oklahoma Office
of Risk Management, he did not complete the administrative process, and,
therefore, his claims should be dismissed.
Oklahoma Operation Memorandum 090124 sets forth the inmate/offender
grievance process for Oklahoma correctional facilities. See OP-090124 (effective
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Mar. 23, 2004), available at www.doc.state.ok.us/offtech/op090124.htm. 2
The
memorandum specifies that, after trying to resolve an issue through informal
means, the inmate should submit an “Inmate/Offender Grievance Report Form,”
to which the “reviewing authority” will respond. Id. at § V. If the grievance is
denied by the reviewing authority, the inmate may appeal to “the administrative
review authority.” Id. at § VII.B. There is only one level of appeal: “The ruling
of the administrative review authority . . . is final and will conclude the internal
administrative remedy available to the inmate/offender within the jurisdiction of
the Oklahoma Department of Corrections.” Id. at § VII.D.1. “The department
grievance procedure, however, does not satisfy the additional requirements for
exhaustion of administrative remedies required by the Oklahoma Governmental
Tort Claims Act [OGTCA]. . . .” Id. at § VII.D.2. These additional requirements
for OGTCA claims require the filing of a claim with the Office of Risk
Management. Okla. Stat. tit. 51, § 156(A) & (C).
The OGTCA, however, categorically excludes liability for claims involving
the “operation or maintenance of any prison, jail or correctional facility.” Okla.
2
We assume that the relevant portions of the currently effective Operation
Memorandum are similar to, if not the same as, those provisions of the version
effective when Mr. DeYonghe was pursuing his grievances. To the extent that the
versions may differ, we note that it was the State’s responsibility to support its
argument by providing necessary materials to the court.
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Stat. tit. 51, § 155(24). Consequently, none of the claims involved in this case are
cognizable under the OGTCA, and the Office of Risk Management could not offer
Mr. DeYonghe any form of relief. That being the case, he was not required to file
a claim with the Office of Risk Management to exhaust his available
administrative remedies with regard to the claims he asserts in this action. See
OP-090124, at § VII.D.1; see also Booth v. Churner , 532 U.S. 731, 736 & n.4
(2001) (noting that the parties agreed that the statute presupposes some form of
redress, and stating, “[w]ithout the possibility of some relief, the administrative
officers would presumably have no authority to act on the subject of the
complaint, leaving the inmate with nothing to exhaust”). Mr. DeYonghe filed a
grievance regarding the revocation of his earned credits, and appealed the denial
of that grievance. Therefore, like the district court, we conclude that Mr.
DeYonghe exhausted his available administrative remedies with regard to the
revocation of his 719 credits.
For these reasons, we proceed to the merits of Mr. DeYonghe’s claims.
III.
Mr. DeYonghe’s first claim alleges that the December 3, 1998 adjustment
review violated his Fifth 3
and Fourteenth Amendment rights to due process
3
Mr. DeYonghe cites to the Sixth Amendment, but, as it is the Fifth
Amendment (as applied to the states through the Fourteenth Amendment) that
(continued...)
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because there were only two officials at the review, not three as required by
Oklahoma statute. See Okla. Stat. tit. 57, § 138(F). The district court determined
that this claim should be dismissed because it was not filed within the applicable
limitations period. We review this dismissal de novo, accepting the well-pleaded
allegations of Mr. DeYonghe’s complaint as true, and viewing them in the light
most favorable to him. See Stidham v. Peace Officer Standards & Training ,
265 F.3d 1144, 1149 (10th Cir. 2001).
The limitations period for a § 1983 claim arising in Oklahoma is two years.
See Meade v. Grubbs , 841 F.2d 1512, 1522 (10th Cir. 1988). “A civil rights
action accrues when facts that would support a cause of action are or should be
apparent.” Fratus v. DeLand , 49 F.3d 673, 675 (10th Cir. 1995) (quotation
omitted); see also Smith v. City of Enid ex rel. Enid City Comm’n , 149 F.3d 1151,
1154 (10th Cir. 1998) (“A civil rights action accrues when the plaintiff knows or
has reason to know of the injury which is the basis of the action.”) (quotation
omitted). Mr. DeYonghe’s complaint was filed on March 14, 2003, more than
four years after the alleged violations. Mr. DeYonghe asserts that he only learned
of the requirement of three officials in September 2000, but the facts underlying
3
(...continued)
provides his constitutional right to due process, we shall construe his pro se
pleadings liberally and assume that he intended to rely on the Fifth Amendment
and the Fourteenth Amendment as the basis for his first and third claims.
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his claim were or should have been apparent to him on the date of the adjustment
review. Consequently, his cause of action accrued on December 3, 1998, and his
first claim is untimely. 4
Mr. DeYonghe argues that his complaint was timely because he could not
have brought his claims until 2001 at the earliest, as no relief was available until
the state trial court took the initial step toward recognizing the unconstitutionality
of Oklahoma’s SOTP program by making the legal and factual findings
underlying Childers . Aplt. Br. at 5. The district court, however, held only the
first claim to be untimely. That claim concerns the procedure used during the
December 3, 1998 adjustment review; it does not involve the self-incrimination
4
In addition, we doubt that this claim rises to the level of a federal
constitutional violation. “The Due Process Clause guarantees due process only
when a person is to be deprived of life, liberty, or property.” Templeman v.
Gunter , 16 F.3d 367, 369 (10th Cir. 1994). “A prisoner’s liberty interests may
arise either from the Due Process Clause itself or from state law.” Perkins v.
Kan. Dep’t of Corr. , 165 F.3d 803, 808 (10th Cir. 1999). But the Due Process
Clause itself does not create a protected liberty or property interest in good-time
classification systems, see Wolff v. McDonnell , 418 U.S. 539, 557 (1974), and
Oklahoma’s good-time classification system is discretionary, not mandatory, see
Okla. Sta. tit. 57, § 138. Thus, Mr. DeYonghe does not have a right to be placed
in a classification that allows him to earn any particular level of good-time
credits, so that the procedure used to assign him to a classification level (i.e.,
whether his review was by a two-member or a three-member committee) would
not implicate the Due Process Clause. See Templeman , 16 F.3d at 369
(“Changing an inmate’s prison classification ordinarily does not deprive him of
liberty, because he is not entitled to a particular degree of liberty in prison.”);
Antonelli v. Sheahan , 81 F.3d 1422, 1431 (7th Cir. 1996) (“[Plaintiff] has no due
process interest in the opportunity to earn good time credits.”).
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issues addressed in Childers . Therefore, the timing of Childers is inapplicable to
the timeliness of Mr. DeYonghe’s first claim for relief.
The district court did not err in dismissing Mr. DeYonghe’s first claim.
IV.
Mr. DeYonghe’s second claim alleges that correctional officials violated
his Fifth Amendment right to avoid self-incrimination by penalizing him for
refusing to incriminate himself (namely, for crediting him with a program refusal
during the December 3, 1998 review and then penalizing him for the program
refusal by revoking his 719 good-time credits). The district court granted
summary judgment to defendants on grounds of qualified immunity. “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 Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999).
Initially, the defendants argue that the second and third claims are also
time-barred. As determined by the district court, however, these claims involve
an attack on the validity of Mr. DeYonghe’s sentence, and therefore they could
not be brought under § 1983 until Mr. DeYonghe successfully challenged the
removal of his credits. Heck v. Humphrey , 512 U.S. 477, 489-90 (1994). This
was accomplished when the Oklahoma court granted Mr. DeYonghe relief on
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May 21, 2002, and his second and third claims are timely because they were filed
within two years of that date.
Turning to the merits, the defendants argue that they are entitled to
qualified immunity on these claims because, as of December 3, 1998, the date of
the hearing, and August 25, 2000, the date the ODOC auditor authorized the
deduction of the 719 credits, it was not clearly established that penalizing an
offender for a program refusal violated the offender’s Fifth Amendment rights,
when the program refusal was due to the offender’s refusal to admit guilt in
connection with a sex offender treatment program. Mr. DeYonghe relies on
Lile v. McKune , 24 F. Supp. 2d 1152 (D. Kan. 1998), and Lile v. McKune , 224
F.3d 1175 (10th Cir. 2000), rev’d , 536 U.S. 24 (2002), in support of his
contention that the defendants’ actions violated clearly established law.
Before determining whether the law was clearly established, however, we
must determine whether Mr. DeYonghe suffered a violation of his rights. Saucier
v. Katz , 533 U.S. 194, 201 (2001). We conclude that Mr. DeYonghe cannot make
this showing with regard to his second claim.
In reversing our decision in Lile v. McKune , the Supreme Court held that
the Fifth Amendment was not violated when an inmate lost prison privileges that
were offered to encourage participation in a sex offender treatment program. See
McKune , 536 U.S. at 45 (plurality opinion); id. at 48-49 (O’Connor, J., concurring
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in the judgment). Further, in Searcy v. Simmons , 299 F.3d 1220, 1226-27 (10th
Cir. 2002), we held that there was no unconstitutional compulsion when a Kansas
prisoner was deprived of opportunities to earn additional good-time credits by
being classified at a lower credit-earning level when he refused to admit guilt in
connection with sex offender treatment. See also Gwinn v. Awmiller , 354 F.3d
1211, 1226 (10th Cir.), cert. denied , 125 S. Ct. 181 (2004) (relying on Searcy in
finding no unconstitutional compulsion where Colorado prisoner was forced to
choose between entering program or losing ability to earn additional good-time
credits).
We recognize that, on its face, this case involves the revocation of earned
credits, that neither Searcy nor McKune involved the loss of earned credits, and
that the loss of earned credits is a harsher sanction than the loss of privileges or
the opportunity potentially to earn credits at a higher level in the future. The
revocation involved here, however, was a retroactive implementation of an action
which, in the ODOC’s view, should have been taken at the time of the adjustment
review. In August 2000, Mr. DeYonghe was not told that his credits would be
revoked unless he accepted the SOTP program, and therefore was then subject to
alleged compulsion in connection with the revocation of earned credits; rather, he
was told that the consequences of his prior refusal to admit guilt were
retroactively being implemented, and he was deprived only of credits earned since
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December 3, 1998, not earned credits from prior periods. Essentially, then, Mr.
DeYonghe’s challenge is analogous to the situation in Searcy –he refused to admit
guilt, so he could not participate in the SOTP, and this “program refusal”
eventually resulted in his reclassification to a lower credit-earning class. In
Searcy , we concluded that this type of choice is not compulsion of
self-incriminating testimony in violation of the Fifth Amendment. 5
Therefore,
Mr. DeYonghe cannot establish that he was deprived of his Fifth Amendment
right to avoid self-incrimination, and the district court did not err in granting
summary judgment to defendants on Mr. DeYonghe’s second claim. 6
5
We are mindful of Justice Kennedy’s statements for the plurality in
McKune , that “respondent’s decision not to participate in the Kansas SATP did
not extend his term of incarceration” and that respondent’s decision did not
“affect his eligibility for good-time credits or parole,” 536 U.S. at 38, and of
Justice O’Connor’s statement, in her concurrence in the judgment, that the
imposition of a penalty of longer incarceration “would surely implicate a ‘liberty
interest.’” 536 U.S. at 52. Our judgment today should not be read as indicating
that a revocation of earned credits cannot constitute compulsion for purposes of a
self-incrimination analysis. Our judgment is limited to the circumstances before
us, where the revocation was in the nature of a ministerial action that
retroactively implemented the consequences of the choice presented to Mr.
DeYonghe at the December 3, 1998 adjustment review.
6
Moreover, under Chavez v. Martinez , 538 U.S. 760, 769 (2003) (plurality
opinion); id. at 778 (Souter, J., concurring in the judgment), it appears that six
justices of the Supreme Court would find either no Fifth Amendment violation or
no civil liability for defendants under these circumstances.
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V.
Mr. DeYonghe’s third claim asserts a violation of his Fifth and Fourteenth
Amendment rights to due process when the ODOC auditor, without any further
process, unilaterally revoked his 719 earned good-time credits based on the
alleged program refusal. Again, “[w]e review the district court’s grant of
summary judgment de novo . . . .” Simms , 165 F.3d at 1326.
As stated above, we must first determine whether Mr. DeYonghe had a
right to due process in connection with the revocation of his credits. Saucier , 533
U.S. at 201. Because Oklahoma has created a liberty interest in earned good-time
credits, as discussed below, we conclude that Mr. DeYonghe did have a right to
due process in connection with the revocation of his credits. See Mitchell v.
Maynard , 80 F.3d 1433, 1444 (10th Cir. 1996).
States may create liberty interests. Perkins v. Kan. Dep’t of Corr. ,
165 F.3d 803, 808 (10th Cir. 1999). In Waldon v. Evans , 861 P.2d 311, 313
(Okla. Crim. App. 1993), the Oklahoma Court of Criminal Appeals held that
Oklahoma “has created a liberty interest in earned credits and an inmate is
entitled to due process protection prior to the loss of those credits.” See also
Okla. Stat. tit. 57, § 138 (providing that earned credits may be subtracted for
disciplinary reasons “following due process”); R. Doc. 21, Attach. K (OP-060213
§ III.B. (effective May 1, 1998) (“Demotions will consist of a reduction in class
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only and will be determined by the adjustment review committee/unit treatment
team. Loss of accrued credits will remain a disciplinary committee function.”)).
Because Oklahoma has provided a right to earned credits and has specified
methods of forfeiture of such earned credits, it has afforded Mr. DeYonghe a
constitutionally-protected liberty interest in his earned credits that entitles him to
due process protections. See Wolff v. McDonnell , 418 U.S. 539, 557 (1974);
Mitchell , 80 F.3d at 1444.
Nevertheless, moving to the second factor of the qualified immunity test,
we conclude that the district court properly held that it was not clearly
established, as of August 25, 2000, that Mr. DeYonghe had a federal right to due
process protections in connection with the revocation of his allegedly erroneously
awarded credits. The crucial fact here is that the ODOC auditor unilaterally
revoked the credits under the belief that they were erroneously awarded. In
Stephens v. Thomas , 19 F.3d 498, 501 (10th Cir. 1994), we held that the
revocation of erroneously awarded good-time credits did not infringe on a
protected liberty interest and did not implicate the constitutional right to due
process. We distinguished Stephens in Mayberry v. Ward , 43 Fed. Appx. 343,
345-47 (10th Cir. 2002) (unpublished decision), where we held that it was
improper for an ODOC auditor to revoke earned credits unilaterally, even if the
credits allegedly were awarded mistakenly, because the credits were sanctioned by
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the unit classification committee when they were awarded. Mayberry , however,
was issued on August 2, 2002, well after the actions at issue, and it is an
unpublished, nonbinding decision; for these reasons, it cannot be considered to
have clearly established the law in this circuit before the August 25, 2000
revocation involved in this case. The district court did not err in granting
summary judgment to defendants based on qualified immunity.
The judgment of the district court is AFFIRMED. Mr. DeYonghe’s
request for appointment of counsel is DENIED. His motion for supplemental
pleading, while being construed liberally as requested, is DENIED.
Mr. DeYonghe’s motion to proceed on appeal in forma pauperis is GRANTED,
and he is reminded of his responsibility to make partial payments until his filing
fee is paid in full. The mandate shall issue immediately.
Entered for the Court
David M. Ebel
Circuit Judge
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