Wirsching v. State of Colorado

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 19 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

CHARLES JOSEPH WIRSCHING,

Plaintiff-Appellant,

v. No. 00-1437
STATE OF COLORADO; BILL
OWENS, GOVERNOR; and the
COLORADO DEPARTMENT OF
CORRECTIONS AND ALL AGENTS
THEREOF,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 98-D-1857)

Robert Foster, University of Denver College of Law, Denver, Colorado, (Stephen
Cribari and Megan Curtis, University of Denver College of Law, with him on the
briefs) for the Plaintiff-Appellant.

Paul S. Sanzo, First Assistant Attorney General, State of Colorado (Ken Salazar,
Attorney General of Colorado and Joseph P. Sanchez, Assistant Attorney General,
with him on the briefs), for the Defendants-Appellees.
Before HENRY and McKAY , Circuit Judges, and OBERDORFER, Senior
District Judge. *

HENRY, Circuit Judge.

Charles Joseph Wirsching appeals the district court’s order granting

summary judgment against him and in favor of the defendants on his 42 U.S.C. §

1983 civil rights claim. Mr. Wirsching, who until April 25, 2003 was

incarcerated by the Colorado Department of Corrections (CDOC) on a conviction

for sexual assault of a minor, alleges that CDOC officials violated his

constitutional rights by directing him to participate in a sexual offender treatment

program requiring him to admit that he had committed the assault and by

imposing certain adverse consequences upon him when he refused to participate.

In particular, Mr. Wirsching contends that the CDOC officials’ refusal to allow

visitation with his minor child violated the First and Fourteenth Amendments. He

further contends that, by depriving him of opportunity to earn good time credits at

the higher rate available to prisoners who participated in the treatment program,

CDOC officials violated the Fifth Amendment’s prohibition against compelling

self-incriminating testimony. Mr. Wirsching also asserts that CDOC officials

*
The Honorable Louis F. Oberdorfer, United States Senior District Judge
for the District of Columbia, sitting by designation.

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violated the Double Jeopardy Clause of the Fifth Amendment as well as the

Eighth Amendment, Ninth Amendment, and the Due Process and Equal Protection

clauses of the Fourteenth Amendment.

We begin our analysis by considering two threshold issues: (1) whether Mr.

Wirsching’s release from prison renders his claims moot; and (2) whether Mr.

Wirsching has waived the right to appeal by failing to object to the magistrate’s

recommendation to enter summary judgment against him. As to the first issue, we

conclude that Mr. Wirsching’s release from prison moots his claims for

declaratory and injunctive relief but not his claims for damages. As to the second

issue, we conclude that in spite of Mr. Wirsching’s failure to object to the

magistrate’s report and recommendation, the interests of justice warrant our

consideration of the merits of this appeal.

On the merits of Mr. Wirsching’s damages claims, we conclude that the

district court properly granted summary judgment to the defendant CDOC

officials. In particular, with regard to Mr. Wirsching’s challenge to the denial of

visitation with his minor child, we hold that Mr. Wirsching has failed to establish

that prison officials violated his rights under the First and Fourteenth

Amendments. We base that conclusion primarily upon the deference we afford to

prison administrators in these matters, see Turner v. Safely , 482 U.S. 78, 89

(1987), as well as the evidence offered by CDOC officials in support of the policy

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of restricting Mr. Wirsching’s visitation privileges. As to Mr. Wirsching’s Fifth

Amendment compulsion claim, we apply the Supreme Court’s decision in

McKune v. Lile, 536 U.S. 24 (2002) and conclude that the consequences of Mr.

Wirsching’s refusal to admit that he had committed a sexual assault were not so

severe as to likely compel him to be a witness against himself. Finally, we hold

that Mr. Wirsching’s remaining claims also lack merit.

I. BACKGROUND

The relevant facts are not in dispute. In 1997, Mr. Wirsching pleaded

guilty in the District Court of El Paso County, Colorado to a charge of attempted

sexual assault of a child. The court sentenced Mr. Wirsching to eight years’

incarceration. Mr. Wirsching had previously been convicted of second-degree

assault.

The Colorado Department of Corrections has a treatment program for sex

offenders. Following Mr. Wirsching’s incarceration, prison staff recommended

that he participate in the program. One of the requirements for participation is

that the inmate admit that he has engaged in the conduct that led to his

classification as a sex offender. 2 Mr. Wirsching refused to admit that he had

2
See Rec. doc. 28, attach. 2 (CDOC Reg. No. 700-19 ¶ IV(F)(3)(4)
(requiring prisoner’s participating in the treatment program to “admit to sexually
(continued...)

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engaged in the sexual assault of which he had been convicted. As a result, prison

officials did not admit him into the treatment program.

CDOC regulations provide that inmates who refuse to participate in labor,

educational, or work programs, or who refuse to undergo recommended treatment

programs are placed on Restricted Privileges Status. Here, that status affected

Mr. Wirsching as follows: (1) he could not have a television or a radio in his cell;

(2) he could not use tobacco; (3) he had no canteen privileges; (4) certain

personal property was removed from his cell; (5) he could not engage in

recreation with other prisoners; and (6) he was required to wear orange pants.

Mr. Wirsching’s refusal to participate in the treatment program also

affected his opportunity to earn good time credits. Under a Colorado statute,

inmates are entitled to earn these credits at the highest rate (ten days for each

month of incarceration) only if they “progress towards the goals and programs

established by the Colorado diagnostic program.” Col. Rev. Stat. § 17-22.5-405.

Under this provision, it appears that Mr. Wirsching’s refusal would constitute a

lack of progress in the view of CDOC officials.

Finally, Mr. Wirsching’s Restricted Privileges Status also limited his

visitation with family members. When Mr. Wirsching asked that his three-year

2
(...continued)
abusive behavior and be willing to discuss it” and “acknowledge that she/he has a
current problem in the area of sexual abuse.”

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old daughter be allowed to visit him in prison, CDOC officials denied his request.

They invoked the following regulation:

Visitors will be excluded from the visiting list with
authorization from the Administrative Head if they:

a. Are the victim of the sex offender they are
attempting to visit, except under
circumstances approved in advance and in
writing by the sex offender treatment staff;

b. Are under the age of eighteen (18) visiting
an offender who has been convicted at any
time of sexual assault on a child, incest, or
aggravated incest unless approved in advance
and in writing by the sex offender treatment
staff;

c. Are victims of the offender or are children
under the age of eighteen (18) years of age, if
such visits would be contrary to the
rehabilitation of the offender as documented
by mental health staff who will evaluate the
offender and make recommendations
regarding visits which may be detrimental to
the offender’s rehabilitation.

d. Sex offenders who have perpetrated
against children shall not loiter near children
in the visiting room or participate in any
volunteer activity that involves contact with
children except under circumstances
approved in advance and in writing by the sex
offender treatment staff.

Rec. doc. 28, attach. 3 (Admin. Reg. 300-01) ¶ (IV) (A) (8)). According to the

CDOC officials, Mr. Wirsching’s refusal to participate in the treatment program

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for sex offenders meant that they could not properly evaluate him to determine if

his daughter’s visits would be “detrimental to [his] rehabilitation.” Id. (Admin.

Reg. 300-01(IV)(A)(8)(c)). They denied his continuing requests for visitation

privileges with his daughter.

Proceeding pro se, Mr. Wirsching filed this civil rights action alleging that

the CDOC’s refusal to allow visitation with his children violated his right to

familial association under the First Amendment, his Fifth Amendment right

against double jeopardy, his Eighth Amendment right to be free from cruel and

unusual punishment, his Ninth Amendment rights, and his right to due process

and equal protection under the Fourteenth Amendment. He also asserted that the

denial of visitation privileges and the denial of the opportunity to earn good time

credits at the higher rate available to other prisoners constituted an impermissible

punishment for his refusal to incriminate himself. According to Mr. Wirsching,

this punishment violated the Fifth Amendment’s Self-Incrimination Clause.

In his request for relief, Mr. Wirsching asked the court “to issue an Order

granting him and all future prisoners equal rights and privileges as . . . afforded to

other inmates.” Rec. doc. 3, at 6 (Complaint filed Aug. 26, 1998). He also

requested an “Order granting him relief from Sentence and Judgment of

Conviction, and such other relief as this Court may deem appropriate.” Id. In a

subsequent pleading, Mr. Wirsching requested damages. See Rec. doc 40, at 14.

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 The defendant CDOC officials filed a motion for summary judgment on all

of Mr. Wirsching’s claims. A magistrate judge issued a recommendation

concluding that summary judgment to the defendants was warranted. Mr.

Wirsching did not file an objection to the recommendation, and the district court

then adopted the recommendation and entered judgment for the defendants.

Proceeding pro se, Mr. Wirsching appealed the grant of summary judgment

against him. This Court appointed counsel for Mr. Wirsching and then asked for

supplemental briefing regarding the Supreme Court’s decision in McKune v. Lile,

536 U.S. 24 (2002). Following the oral argument in this case, Mr. Wirsching’s

counsel informed the court that, on April 25, 2003, Mr. Wirsching was released

from incarceration.

II. DISCUSSION

On appeal, Mr. Wirsching challenges the district court’s grant of summary

judgment as to all of his claims. We review the grant of summary judgment de

novo, applying the same standard as the district court pursuant to Rule 56(c) of

the Federal Rules of Civil Procedure. See United States v. AMR Corp., 335 F.3d

1109, 1113 (10th Cir.2003). Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

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that the moving party is entitled to a judgment as a matter of law.” We view the

record in the light most favorable to the nonmoving party. See AMR Corp., 335

F.3d at 1113.

However, before we may proceed to the merits, we must address two

threshold issues: (1) whether Mr. Wirsching’s release from prison renders his

claims moot; and (2) whether Mr. Wirsching has waived the right to appeal by

failing to object to the magistrate judge’s recommendation.

A. Mootness

Under Article III of the United States Constitution, federal courts may

adjudicate only “cases or controversies.” As a result, we must “decline to

exercise jurisdiction where the award of any requested relief would be moot—i.e.

where the controversy is no longer live and ongoing.” Cox v. Phelps Dodge

Corp., 43 F.3d 1345, 1348 (10th Cir. 1994) (citing Lewis v. Continental Bank

Corp., 494 U.S. 472, 477-78 (1990)). “The touchstone of the mootness inquiry is

whether the controversy continues to ‘touch the legal relations of parties having

adverse legal interests’ in the outcome of the case,” and this legal interest must

be “more than simply the satisfaction of a declaration that a person was

wronged.” Cox, 43 F.3d at 1348 (quoting DeFunis v. Odegarrd, 416 U.S. 312,

317 (1974) (per curiam)). Generally, it is “the settling of some dispute which

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affects the behavior of the defendant toward the plaintiff” that distinguishes a

case or controversy from an advisory opinion. Id. at 1348 (quoting Hewitt v.

Helms, 482 U.S. 755, 761 (1987)).

Here, following the parties and the district court, we read Mr. Wirsching’s

complaint as asserting a 42 U.S.C. § 1983 action for (1) declaratory and

injunctive relief and (2) damages. As to the former, there is no indication in the

record that the remedies that Mr. Wirsching has sought—an order allowing

visitation with his children and the opportunity to earn good time credits at a

higher rate—would have any effect on the defendant CDOC officials’ behavior.

Following Mr. Wirsching’s release from prison, “the entry of a declaratory

judgment [and injunctive relief] in [Mr. Wirsching’s] favor would amount to

nothing more than a declaration that he was wronged.” Green v. Branson, 108

F.3d 1296, 1299 (10th Cir. 1997). Accordingly, we conclude that Mr.

Wirsching’s claims for declaratory and injunctive relief are now moot. See id.

(finding prisoner’s claims for declaratory and injunctive relief moot, in light of

his release from incarceration, and collecting cases).

In contrast, Mr. Wirsching’s damages claims are not moot. Despite Mr.

Wirsching’s release from prison, those claims “remain viable because a judgment

for damages in his favor would alter the defendants’ behavior by forcing them to

pay an amount of money they otherwise would not have paid.” Id. Because we

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read Mr. Wirsching’s complaint as seeking damages for all of the constitutional

violations he has alleged, there is a case or controversy regarding all of those

alleged violations.

B. Failure to Object to the Magistrate Judge’s Recommendation

The magistrate judge’s recommendation contained a section stating that the

parties had ten days from the date of service to file written objections. The

recommendation further stated that “[f]ailure to file written objections to the

proposed findings and recommendations . . . may bar the aggrieved party from

appealing the factual findings . . . that are accepted or adopted by the District

Judge” and that “failure to file written objections concerning legal questions

addressed in the recommendation generally operates as a waiver of appellate

review of those legal questions.” Rec. doc. 61 attach. (Recommendation of

United States Magistrate Judge, filed Aug. 16, 2000). The recommendation

included a certificate of mailing indicating that it was sent to the prison address

provided by Mr. Wirsching—the same address at which he had received prior

pleadings and orders.

In Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991), this circuit

noted that “we have adopted a firm waiver rule when a party fails to object to the

findings and recommendations of the magistrate.” That rule “provides that the

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failure to make timely objection to the magistrate’s findings or recommendations

waives appellate review of both factual and legal questions.” Id. (internal

citations omitted). However, “[t]he waiver rule as a procedural bar need not be

applied when the interests of justice so dictate.” Id.

Our decisions have not defined the “interests of justice” exception with

much specificity. In some instances, we have considered whether the party

seeking to invoke the exception himself bore some responsibility for the failure to

receive the magistrate’s report and recommendation. See Theede v. United States

Dep’t of Labor, 172 F.3d 1262, 1268 (10th Cir. 1999) (noting, when the appellant

asserted that the report and recommendation had been sent to the wrong address,

that “[appellant] himself was the source of all the confusion about his proper zip

code” and that [the appellant] submitted no less than five different zip codes for

the same street address, without every formally advising the court of any change

of address or address correction”). We have also considered the appellant’s

conduct upon learning of the report and recommendation, see id. (refusing to

apply the interests of justice exception in part on the grounds that “[appellant] has

presented no evidence that he attempted to obtain the magistrate’s

recommendation upon learning about it by way of the district court’s order

adopting the recommendation and dismissing [the appellant’s ] amended

complaint”), as well as the merits of the claims asserted. See id.

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 Other circuits have adopted a similarly flexible approach. See United

States v. Brown, 79 F.3d 1499, 1504 (7th Cir. 1996) “[F]ailure to challenge

before a district judge a magistrate’s pretrial rulings . . . waives the right to attack

such rulings on appeal[;] [h]owever, . . . this rule is not jurisdictional and thus

should not be employed to defeat the ends of justice.”) (internal quotation marks

and citations omitted); Kent v. Johnson, 821 F.2d 1220, 1223 (6th Cir. 1987)

(applying the interests of justice exception). We note that the Sixth Circuit has

considered the importance of the issues raised as one factor in applying the

interests of justice exception. See Kent, 821 F.2d at 1223 (noting that an appeal

concerned “questions of considerable import” in proceeding to the merits despite

the appellant’s failure to object to the magistrate’s report).

Here, several factors persuade us that the interests of justice warrant

consideration of Mr. Wirsching’s appeal. First, there is no indication of delay on

Mr. Wirsching’s part in seeking to obtain the report and recommendation. The

record indicates that after filing a timely notice of appeal referring to the district

court’s two-page order adopting the magistrate’s report and recommendation, the

court informed Mr. Wirsching that it was considering summary dismissal of the

appeal. Mr Wirsching responded to the court that he “would love to file a brief

on the recommendations [;] the only problem is that I don’t know what those

recommendations were.” Letter, dated Nov. 15, 2000. Mr. Wirsching then

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requested a copy of the report and recommendations. In his opening brief, Mr.

Wirsching stated “I received only a two (2) page Order from the Court stating that

I was denied. There was no paperwork showing any finding of fact of conclusion

of law attached.” Aplt’s Pro se Opening Br. at 3, filed Jan. 31, 2001.

Moreover, in light of all the circumstances of this case, we find Mr.

Wirsching’s allegation that he did not receive the magistrate’s report and

recommendation to be facially plausible. Throughout the proceedings, Mr.

Wirsching has been a fairly tenacious litigant, filing a pro se complaint,

requesting on several occasions that the district court appoint counsel for him,

responding to the defendants’ motions to dismiss and for summary judgment, and

filing a supplemental brief. Failing to object to a report and recommendation that

warned him that he could lose his right to appeal is inconsistent with that conduct.

Accordingly, in light of Mr. Wirsching’s plausible contention, and the “issues of

considerable import” involved here, see Kent, 821 F.2d at 1223, we conclude that

the interests of justice support an exception to our firm waiver rule. We therefore

proceed to the merits of this appeal.

C. First Amendment and Due Process Claims Involving Denial of Visitation

Mr. Wirsching argues that the district court erred in granting summary

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judgment against him on his claims challenging the denial of visitation with his

child. He maintains that the CDOC’s no-visitation policy violated his First

Amendment rights of familial association as well as his due process rights under

the Fourteenth Amendment.

We acknowledge at the outset that the interests Mr. Wirsching asserts are

important ones. The Supreme Court has held that “parents have a liberty interest,

protected by the Constitution, in having a reasonable opportunity to develop close

relations with their children.” Hodgson v. Minnesota, 497 U.S. 417, 483 (1990)

(Scalia, J., concurring in part and dissenting in part, and citing Santosky v.

Kramer, 455 U.S. 745, 753-754 (1982); Caban v. Mohammed, 441 U.S. 380

(1979); and Stanley v. Illinois, 405 U.S. 645, 651-652 (1972)). In the prison

context, courts and commentators have observed that visitation may significantly

benefit both the prisoner and his family. See Ky. Dep’t of Corr. v. Thompson,

490 U.S. 454, 465-70 (1989) (Marshall, J., dissenting); see also Thornburgh v.

Abbott, 490 U.S. 401, 407 (1989) (stating that “[a]ccess [to prisons] is essential .

. . to families and friends of prisoners who seek to sustain relationships with

them”).

Nevertheless, “[t]he very object of imprisonment is confinement,” and

“[m]any of the liberties and privileges enjoyed by other citizens must be

surrendered by the prisoner.” Overton v. Bazzetta, 123 S. Ct. 2162, 2167 (2003).

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Prisoners do not retain rights inconsistent with proper incarceration, and “freedom

of association is among the rights least compatible with incarceration.” Id.

Accordingly, the Constitution allows prison officials to impose reasonable

restrictions upon visitation. See id.

In assessing the CDOC visitation restriction, we apply the standard set forth

in Turner v. Safley, 482 U.S. 78, 89 (1987): “a prison regulation imping[ing] on

inmates’ constitutional rights . . . is valid if it is reasonably related to legitimate

penological interests.” That deferential review follows from the principle that

“[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict

scrutiny analysis would seriously hamper their ability to anticipate security

problems and to adopt innovative solutions to the intractable problems of prison

administration.” Id.

Accordingly, we must “balance the guarantees of the Constitution with the

legitimate concerns of prison administrators,” Beerheide v. Suthers, 286 F.3d

1179, 1185 (10th Cir. 2002), asking (1) whether a rational connection exists

between the prison policy regulation and a legitimate governmental interest

advanced as its justification; (2) whether alternative means of exercising the right

are available notwithstanding the policy or regulation; (3) what effect

accommodating the exercise of the right would have on guards, other prisoners,

and prison resources generally; and (4) whether ready, easy-to-implement

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alternatives exist that would accommodate the prisoner’s rights. See Turner, 482

U.S. at 89-91. “Turner thus requires courts, on a case-by-case basis, to look

closely at the facts of a particular case and the specific regulations and interests

of the prison system in determining whether prisoners’ constitutional rights may

be curtailed.” Beerhide, 286 F.3d at 1186.

We begin our analysis with the Supreme Court’s recent decision in

Overton. There, the Supreme Court applied the four-part Turner inquiry to

Michigan’s policy banning visits between prisoners and (a) children as to whom

the prisoner’s parental rights had been terminated and (b) minors who were not

the prisoner’s children, stepchildren, grandchildren, or siblings. 3 The Court

overturned the Sixth Circuit’s decision—which had held that the policy violated

the prisoners’ First Amendment rights.

We emphasize that the policy at issue in Overton did not bar visits with the

prisoner’s own children, as does the CDOC policy challenged here by Mr.

Wirsching. Moreover, some of the institutional concerns noted by the Overton

Court are not as apparent here. Nevertheless, the Court’s application of the

Turner inquiry offers useful guidance.

The Court concluded that “the [Michigan] regulations bear a rational

3
Other Michigan visitation policies were also at issue in Overton, but, as
those other policies did not address limitations on visits with children, we do not
discuss them here.

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relation to [the Department of Corrections] valid interests in maintaining internal

security and protecting child visitors from exposure to sexual or other misconduct

or from accidental injury.” Overton, 123 S. Ct. 2167. The Court added that

“[t]he regulations promote internal security, perhaps the most legitimate of

penological goals . . . by reducing the total number of visitors and by limiting the

disruption caused by children in particular. Protecting children from harm is also

a legitimate goal.” Id.

The Court then noted that prisoners had alternative means of remaining in

contact with family members: they could communicate by letter and telephone

with those with whom they could not visit. Finally, the Court observed that

accommodating the Michigan prisoners’ demands for visitation would cause a

significant reallocation of the prison system’s resources. Moreover, the plaintiff

prisoners were unable to “point[] to some obvious regulatory alternative that fully

accommodates the asserted right while not imposing more than a de minimis cost

to the valid penological goal.” Id. at 2169.

As to the CDOC regulation at issue here, we begin with the first Turner

inquiry— whether a rational connection exists between the prison regulation and a

legitimate governmental interest advanced as its justification. See Turner, 482

U.S. at 89-90. The district court concluded that CDOC officials had identified

two legitimate penological interests to support the ban on Mr. Wirsching’s visits

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with his children: the protection of the children themselves and the furthering of

rehabilitation of convicted sex offenders like Mr. Wirsching. See Rec. doc. 61, at

5-6 (citing Werner v. McCotter, 49 F.3d 1476, 1479 (10th Cir. 1995); Mosier v.

Maynard, 937 F.2d 1521, 1525 (10th Cir. 1991)); see also Overton, 123 S. Ct. at

2167 (stating that “[p]rotecting children from harm is also a legitimate goal”).

That conclusion is supported by an affidavit from a CDOC social worker

(who is also a licensed professional counselor) offered by the defendants in

support of their motion for summary judgment. The social worker stated that

“[t]he rationale for disallowing visits with children is the potential risk for harm to

the child. Risk factors for sex offending behavior should be considered higher if

these individuals are allowed visits with children.” Rec. doc. 28, at 2 (Aff. of

Glynette Smith, filed Jan. 15, 1999). She added that the Colorado Sex Offender

Management Board Standards and Guidelines recommended that “[s]ex offenders

should have no contact with children, including their own children, unless

approved in advance and in writing by the prison treatment provider.” Id. at 3

(quoting Colorado Sex Offender Treatment Board Standards § 3.511(B)).

In response, Mr. Wirsching contends that the ban on visitation is rationally

related to neither the protection of children nor his own rehabilitation. He notes

that the record contains no evidence that he has ever harmed or attempted to harm

his young daughter and that his alleged victims “were not of a similar age or

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situation as his daughter.” Aplt’s Opening Br. at. 17. As to rehabilitation, Mr.

Wirsching cites decisions acknowledging the rehabilitative effect of prisoners’

visits with family members. See id. at 18-19 (citing, inter alia, Ramos v. Lamm,

639 F.2d 559, 581 (10th Cir. 1980)).

Mr. Wirsching’s arguments ignore the substantial deference we must accord

“to the professional judgment of prison administrators, who bear a significant

responsibility for defining the legitimate goals of a corrections system and for

determining the most appropriate means to accomplish them.” Overton, 123 S. Ct.

at 2167. Here, the CDOC has offered some evidence indicating that contact

between sex offenders and children, even their own children, may adversely affect

both the child and the offender. See Rec. doc. 28, at 2-3 (Aff. of Glynette Smith,

filed Jan. 15, 1999). Although that evidence may be debatable, and a particular

sex offender may constitute no threat whatsoever to his own children, it is

noteworthy that Mr. Wirsching himself offered no evidence to support his

challenges to the CDOC’s objectives. Moreover, as the Court noted in Overton,

“the burden . . . is not on the State to prove the validity of the prison regulations

but on the prisoner to disprove it.” Overton, 123 S. Ct. at 2168. We therefore

conclude that there is a rational connection between the CDOC policy and

legitimate governmental interests. See Turner, 482 U.S. at 89-91.

As to the second Turner inquiry— whether alternative means of exercising

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the right are available notwithstanding the policy—Mr. Wirsching acknowledges

that prison officials have allowed him to contact his children by letter and

telephone. See Aplt’s Opening Br. at 19-20. However, he contends that

“visitation offers the best method for exercising even a limited right to raising his

child while in prison.” Id. at 20. Even so, we note, alternatives “need not be ideal

. . . they need only be available.” Overton, 123 S. Ct. at 2169. Prison officials are

simply not required, as a matter of constitutional law, to provide Mr. Wirsching

with the “best method” of raising his child. Accordingly, we agree with the

district court that the fact that Mr. Wirsching may maintain contact with his

children through means other than visitation supports the reasonableness of the

CDOC policy.

As to the third and fourth Turner inquiries—the effect within the prison of

accommodating the asserted right and the availability of alternatives that would

accommodate the prisoner, see Turner, 482 U.S. at 90-91, Mr. Wirsching argues

that because the general prison population is allowed visitation with children, his

request would impose no significant additional burden on the CDOC officials. He

then proposes an alternative to the complete ban on visitation: monitored visits

with a prohibition on physical contact. He suggests that monitored visits would

not impose “more than a de miminis cost to the valid penological goal.” Overton,

123 S. Ct. at 2169; Aplt’s Br. at 22.

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 Again Mr. Wirsching’s arguments are insufficient to overcome the deference

we afford prison officials in these matters. In support of their motion for summary

judgment, the defendants offered the prison social worker’s affidavit, which stated

that visitation may be harmful to the child and may undermine the rehabilitation of

the offender and that any such visitation should be assessed by the treatment staff

before it is authorized. See Rec. doc. 28, at 2-3 (Aff. of Glynette Smith, filed Jan.

15, 1999). Mr. Wirsching offered neither any evidence to rebut that statement nor

any evidence suggesting biased or unprofessional conduct by the treatment staff.

As a result, his assertions as to the minimal effect of allowing visitation and the de

minimis cost of monitored, non-contact visits are of little weight.

In assessing Mr. Wirsching’s arguments, we do not discount the importance

of his relationship with his children. Even inside the prison walls, that

relationship is generally deserving of some form of protection. The complete ban

upon Mr. Wirsching’s visits with his children is indeed a harsh restriction,

significantly more severe than the ban on family visits upheld in Overton. 4 Prison

officials should be careful to ensure that restrictions upon visitation with a

prisoner’s children are justified by the circumstances, and they should seriously

consider less draconian restrictions—such as closely monitored, noncontact

4
As noted above, the restriction upon family visits upheld in Overton
concerned (a) children as to whom the prisoner’s parental rights had been
terminated and (b) minors who were not the prisoner’s children, stepchildren,
grandchildren, or siblings.

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visitation. Had Mr. Wirsching offered evidence as to the feasibility and minimum

institutional effect of a less restrictive visitation policy, this would be a closer

case.

Nevertheless, we are aware that the treatment of sex offenders, like many

other aspects of prison administration, presents substantial difficulties. See

McKune v. Lile, 536 U.S. 24, 33-34 (2002) (discussing the high rates of

recidivism among sex offenders and characteristics of effective treatment

programs). On this record we conclude that, in refusing to allow visits between a

convicted sex offender who refused to comply with the requirements of the

treatment program and his child, the defendants did not violate Mr. Wirsching’s

First and Fourteenth Amendment rights. Accordingly, the district court properly

granted summary judgment in favor of those officials and against Mr. Wirsching

on his damages claims.

D. Fifth Amendment Compulsion Claim

Mr. Wirsching also contends that CDOC officials violated his Fifth

Amendment rights by punishing him for refusing to comply with one of the

requirements of the treatment program—that he admit that he committed a sex

offense. He points to the denial of visitation privileges and the denial of the

opportunity to earn good time credits at the higher rate available to other

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prisoners. He maintains that these actions constituted coercion in response to his

refusal to incriminate himself.

In McKune, 536 U.S. 24, a divided Supreme Court reversed a decision of

this court applying the Fifth Amendment’s bar on compelling incriminating

testimony. This court had concluded that a Kansas policy restricting an inmate’s

privileges and transferring him to a maximum security prison after he refused to

disclose his sexual history (as required by a sex offender treatment program)

constituted impermissible compulsion. See McKune v. Lile, 224 F.3d 1175 (10th

Cir. 2000). Four justices concluded that the standard set forth in Sandin v.

Conner, 515 U.S. 472, 484 (1995), should control in determining whether the

imposition of these consequences constituted impermissible compulsion: if the

consequences constituted “atypical and significant hardship[s] on [inmates] in

relation to the ordinary incidents of prison life” then the program would violate the

Fifth Amendment. See McKune, 536 U.S. at 29-48.

Applying the Sandin standard to the facts before it, the plurality concluded

that the penalties imposed against the prisoner were significantly less than

potential penalties other inmates faced in cases where the Supreme Court ruled

that there was no Fifth Amendment violation. See McKune, 536 U.S. at 42-45.

Accordingly, the plurality concluded that the Kansas program did not violate the

plaintiff prisoner’s Fifth Amendment right against self-incrimination. Id. at 48.

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 Because she disagreed with the plurality’s application of Sandin’s “atypical

and significant hardship” standard, Justice O’Connor did not join in the plurality

opinion in McKune. However, she did agree that the consequences of the plaintiff

prisoner’s refusal to incriminate himself were not “so great as to constitute

compulsion for the purposes of the Fifth Amendment privilege against

self-incrimination.” Id. at 49-50 (O’Connor, J., concurring). Thus, she concurred

in the judgment.

As we noted in Searcy v. Simmons, 299 F.3d 1220, 1225 (10th Cir. 2002),

“[b]ecause Justice O’Connor based her conclusion on the narrower ground that the

KDOC’s policy was not compulsion under the Fifth Amendment, we view her

concurrence as the holding of the Court in McKune.” See Marks v. United States,

430 U.S. 188, 193 (1977) (stating that the holding of a fragmented Court “may be

viewed as that position taken by those Members who concurred in the judgments

on the narrowest grounds”). Accordingly, the question we must resolve is

whether, under the standard applied by Justice O’Connor in her concurring

opinion, the consequences of Mr. Wirsching’s refusal to participate in the

treatment program for sexual offenders were “so great as to constitute compulsion”

for purposes of the Fifth Amendment privilege against self-incrimination.

McKune, 530 U.S. at 49-50 (O’Connor, J., concurring).

In this regard, we note that the consequences suffered by the plaintiff

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prisoner in McKune—reduction in privileges and a transfer to a maximum security

prison—resemble most of the consequences faced by Mr. Wirsching here.

Compare McKune, 536 U.S. at 24 (describing the plaintiff prisoner’s reduction in

privileges for refusing to participate in a treatment program as involving the

curtailment of “visitation rights, earnings, work opportunities, ability to send

money to family, canteen expenditures, access to a personal television, and other

privileges” and adding that “[the prisoner] would be transferred to a

maximum-security unit, where his movement would be more limited, he would be

moved from a two-person to a four-person cell, and he would be in a potentially

more dangerous environment”) with Rec. doc. 29 at 3 (describing Mr. Wirsching’s

reduction in privileges for failure to participate in the treatment program as

including “no television or radio in the cell, no tobacco items, no canteen [except

on medical or religious grounds],” removal of property items, denial of recreation

with the general prison population, and the wearing of orange-colored, prison-

issue pants). In her concurring opinion in McKune, Justice O’Connor

characterized changes in the prisoner’s living conditions as “minor,” McKune, 536

U.S. at 51 (O’Connor, J., concurring). Following that opinion, we conclude that

the similar changes in Mr. Wirsching’s living conditions do not constitute

“compulsion” under the Fifth Amendment.

Nevertheless, Mr. Wirsching’s refusal to participate in the treatment

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program did result in two additional consequences not suffered by the plaintiff

prisoner in McKune: (1) the loss of opportunity to accrue good time credits at an

increased rate, and (2) the prohibition of visitation with his own children. See id.

at 51-52 (O’Connor, J., concurring) (distinguishing the consequences faced by the

plaintiff from those in which the prisoner faced “longer incarceration” and also

noting that, while the plaintiff’s visitation was reduced, “he still retains the ability

to see his attorney, his family, and members of the clergy”). Thus, we must

determine whether these additional adverse consequences are “serious enough to

compel [Mr. Wirsching] to be a witness against himself.” Id. at 2033-34.

This circuit’s opinion in Searcy resolves the question as to good time

credits. There, we held that the withholding of those credits to a Kansas prisoner

who refused to participate in a treatment program did not constitute compulsion.

See Searcy, 299 F.3d at 1226 (“[A]t most, foreclosing Mr. Searcy from the mere

opportunity to earn good time credits is not a new penalty, but only the

withholding of a benefit that the [Kansas Department of Corrections] is under no

obligation to give”). Thus, the plaintiff prisoner “was left with a choice: take

advantage of a benefit that the [Department of Corrections] provided or turn down

that benefit in order to avoid what he feared, perhaps legitimately, would be self-

incriminating statements.” Id. Such a choice did not constitute compulsion.

Searcy is controlling here. As in Kansas, the Department of Corrections in

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Colorado retains discretion in awarding good time credits. See Col. Rev. Stat. §

17-22.5-405 (stating that “[e]arned time, not to exceed ten days for each month of

incarceration or parole, may be deducted from the inmate’s sentence”) (emphasis

added); Duncan v. Gunter, 15 F.3d 989, 992 (10th Cir. 1994) (noting the

discretionary language in the Colorado good time credit statute). Mr. Wirsching,

like Mr. Searcy, was faced with a choice between the opportunity to earn credits at

the higher rate or declining that opportunity by refusing to participate in the

treatment program and thereby avoiding the requirement that he admit to

commiting a sex offense. “The pressure imposed upon [Mr. Wirsching] . . . d[id]

not ‘rise[] to a level where it is likely to compel a person to be a witness against

himself.’” Searcy, 299 F.3d 1227 (quoting McKune, 536 U.S. at 49 (O’Connor, J.,

concurring) (other quotation marks and citations omitted)).

As to denial of visitation privileges with his children, we note that we have

already concluded that the CDOC’s policy did not violate Mr. Wirsching’s rights

under the First Amendment and the Due Process Clause of the Fourteenth

Amendment. For similar reasons, we conclude that the CDOC’s ban on visits

between Mr. Wirsching and his children did not constitute compulsion in violation

of the Fifth Amendment.

We are not persuaded by Mr. Wirsching’s contention that the fact that he

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entered an Alford plea to sex offense for which he was incarcerated indicates that

the CDOC has compelled self-incriminating testimony. In our view, the Alford

plea does not affect the Fifth Amendment compulsion analysis.

An Alford plea is one in which a defendant may maintain his innocence

while agreeing to forego his right to a trial. See North Carolina v. Alford, 400

U.S. 25, 37 (1970) (“An individual accused of [a] crime may voluntarily,

knowingly, and understandingly consent to the imposition of a prison sentence

even if he is unwilling or unable to admit his participation in the acts constituting

the crime.”); see also United States v. Tunning, 69 F.3d 107, 110 (6th Cir. 1995)

(“In its strictest sense, then, an ‘Alford plea’ refers to a defendant who pleaded

guilty but maintained that he is innocent.”) (internal quotation marks omitted).

“However, for such a plea to be valid, it must be based on the defendant’s

intelligent conclusion that ‘the record before the judge contains strong evidence of

actual guilt.’” United States v. Maez, 915 F.2d 1466, 1467 (10th Cir. 1990)

(quoting Alford, 400 U.S. at 37); see also United States. v. Mackins, 218 F.3d 263,

268 (3rd Cir. 2000) (“As Alford and the cases which followed in its wake made

clear, however, there must always exist some factual basis for a conclusion of guilt

before a court can accept an Alford plea; indeed, a factual basis for such a

conclusion is ‘an essential part’ of an Alford plea.”).

From our reading of Justice O’Connor’s concurring opinion in McKune, we

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see no indication that whether the defendant has previously admitted or failed to

admit the sexual misconduct at issue is a factor in the compulsion analysis.

Instead, what matters are the consequences of the prisoner’s failure to admit to the

offense while he is incarcerated, and the analysis turns on the severity of those

consequences.

That reading of McKune is borne out by our approach in Searcy. There, the

defendant had pleaded nolo contendere to a charge of sexual exploitation of a

child. See Searcy, 299 F.3d at 1222. We did not discuss the fact that the

defendant had not yet admitted to sexual misconduct. 5

That Mr. Wirsching’s Alford plea is not relevant to the Fifth Amendment

analysis here is also supported by the way in which those pleas are treated in other

contexts. For example, in Blohm v. C.I.R., 994 F.2d 1542, 1554-55 (11th Cir.

1993), the Eleventh Circuit held a taxpayer who had entered into an Alford plea to

a tax evasion charge was collaterally estopped from denying fraud in a subsequent

5
“[I]n most jurisdictions . . . a nolo plea is not a factual admission that the
pleader committed a crime. Rather, it is a statement of unwillingness to contest
the government’s charges and an acceptance of the punishment that would be
meted out to a guilty person.” Olsen v. Correiro, 189 F.3d 52, 59 (1st Cir. 1999).
As the Supreme Court noted in Alford, “Throughout its history . . . the plea of
nolo contendere has been viewed not as an express admission of guilt but as a
consent by the defendant that he may be punished as if he were guilty and a
prayer for leniency.” 400 U.S. at 36 n.8.

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civil proceeding. See id. at 1554 (“[T]he collateral consequences flowing from an

Alford plea are the same as those flowing from an ordinary plea of guilt.”);

Cortese v. Black, 838 F. Supp. 485, 491 (D. Colo. 1993) (“[C]ourts treat Alford

pleas as having the same preclusive effect as a guilty plea.”), aff’d, No. 95-1429,

1996 WL 346618 (10th Cir. June 2, 1996)). Here, by requiring Mr. Wirsching to

participate in the treatment program or forego certain privileges, the CDOC treated

Mr. Wirsching’s Alford plea as it would a conviction obtained by other

means—such as a guilty plea or a jury trial. This was permissible under the Fifth

Amendment.

F. Mr. Wirsching’s Other Claims

Mr. Wirsching raises several other claims that do not require extensive

discussion. In particular, he maintains that: the CDOC’s visitation policy (1)

imposes an additional punishment for his 1982 sexual assault conviction, thereby

violating the Fifth Amendment’s Double Jeopardy Clause; (2) constitutes cruel and

unusual punishment under the Eighth Amendment; and (3) the policy violates his

equal protection rights under the Fourteenth Amendment.

For substantially the same reasons set forth by the magistrate judge, we

conclude that these arguments lack merit: As to double jeopardy, it is well

established that prison disciplinary sanctions do not implicate that Fifth

Amendment right. See Lucero v. Gunter, 17 F.3d 1347, 1351 (10th Cir. 1994). As

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to the Eighth Amendment, the Court has held that visitation with a particular

person does not constitute basic necessity, the denial of which would violate the

Eighth Amendment. See Thompson, 461 U.S. at 461; see also Overton, 123 S Ct.

at 2169 (distinguishing restrictions on visitation from the permanent withdrawal of

all visitation privileges or the arbitrary application of a ban on visitation to a

particular inmate). Finally, there is no Fourteenth Amendment violation here

either. Treating sex offenders differently than others not convicted of these crimes

is rationally related to a legitimate state objective. See Martinez v. Flowers, 164

F.3d 1257, 1261 (10th Cir. 1998) (upholding classification of violent offenders);

Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir. 1992) (holding that sex

offenders are not members of a suspect classification and that the decision to deny

them mandatory parole did not violate the Equal Protection Clause); see generally

Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir. 1995) (applying the rational basis

standard to the treatment of a prisoner and stating that “[w]hen the plaintiff is not

a member of a protected class and does not assert a fundamental right, we

determine only whether government classifications have a rational basis”).

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 III. CONCLUSION.

Accordingly, for the reasons set forth above, we DISMISS Mr. Wirsching’s

claims for declaratory and injunctive relief as moot. As to Mr. Wirsching’s claims

for damages, we AFFIRM the district court’s grant of summary judgment against

Mr. Wirsching and in favor of the CDOC.

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