Opinion
Case No. 98-3418-JWL.
July 17, 2000.
MEMORANDUM AND ORDER
Plaintiff Luke Reed, a prisoner currently incarcerated at the Norton Correctional Facility (NCF), filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his constitutional rights by reducing his inmate incentive level after he refused to participate in a rehabilitative program offered by the correctional facility. Presently before the court is defendant's motion for summary judgment (doc. 18). For the reasons set forth in detail below, defendant's motion is granted. Plaintiffs complaint is dismissed in its entirety.
At all times relevant to this action, Mr. Reed was incarcerated at the Lansing Correctional Facility (LCF).
In accordance with the applicable summary judgment standard, the following facts are either uncontroverted or related in the light most favorable to plaintiff.
Following a conviction on charges of aggravated kidnaping and rape in Sedgwick County, Kansas, plaintiff was sentenced to serve a life term in prison on October 12, 1982.
Effective January 1, 1996, section 11-101 of the KDOC Internal Management Policy and Procedure (IMPP) established a system of privileges and incentives available to those who, pursuant to suggestions by KDOC personnel, wished to participate in certain rehabilitative programs. As of IMPP 11-101's effective date, all inmates were categorized at incentive Level III, the highest privilege level established by the incentive scheme. Pursuant to section IV.B.2 of IMPP 11-101, however, inmates refusing to participate in the SATP were automatically reduced to incentive Level I. A reduction from Level III to Level I results in a marked alteration in and/or withholding of certain privileges. For instance, restrictions are placed on the inmate's visitation rights, the inmate is disqualified from holding certain types of jobs within the prison, spending limitations are placed on the inmate at the prison's "canteen," and the amount and type of personal property the inmate is allowed to possess in his cell is severely reduced. Additionally, such a reduction of applicable incentive level typically involves an alteration in the inmate's security status, i.e., an inmate may be transferred from medium security housing to the maximum security unit.
To participate in the SATP program, an eligible inmate is required to sign an "Admission of Guilt" form, thereby accepting responsibility for the sexual offense for which he or she was convicted. Each SATP participant is also required to document his or her sexual history in writing, disclosing all prior sexual activities in which he or she was engaged, without regard to whether those activities were chargeable criminal offenses. The candidate is then subjected to a polygraph examination regarding his or her disclosures, the results of which are apparently used to facilitate the rehabilitation process.
On May 28, 1997, Mr. Reed agreed to enter into an inmate program plan to complete the Sexual Abuse Treatment Program (SATP) and the Vocational Education Program. On August 28, 1997, however, plaintiff signed a Sexual Abuse Treatment Program Refusal to Submit to Treatment Form, thereby reneging on his initial agreement to complete the recommended program plan. As a result of his refusal to participate in the SATP, Mr. Reed's incentive level was reduced from Level III to Level I. Mr. Reed was transferred from the medium security unit to maximum security unit, and as a result of being relegated to incentive Level I, he was deprived of the various freedoms and liberties associated with his previous Level III classification.
On April 8, 1998, plaintiffs incentive level was upgraded to Level II, apparently as a result of Mr. Reed's good behavior following the previous incentive level reduction. Mr. Reed's incentive level status was again reduced at some point thereafter due to Mr. Reed's submission of a second Sexual Abuse Treatment Program Refusal to Submit to Treatment form.
It is unclear precisely when Mr. Reed refused to participate in the SATP program for the second time. Although the refusal form is dated November 24, 1997, Mr. Reed's security status is not shown as being altered from Level II, which he attained on April 8, 1998, to Level I until May 5, 1999. Because he did not attain the higher incentive level until April of 1998, it appears that the second form indicating that the second level decrease occurred on November 24, 1997 (some five months before he attained Level II) is misdated — indeed, it would be impossible for Mr. Reed's incentive level to be reduced from Level II to Level I before he had attained the increased level. Mr. Reed's papers are unenlightening with respect to the apparent discrepancy in these dates. The actual dates are, however, ummportant to the issues raised here, i.e., whether the SATP constitutes an ex post facto violation or abridges Mr. Reed's Fifth Amendment rights, and the court will therefore not consider the matter further.
On December 21, 1998, plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his constitutional rights by requiring him to participate in the SATP, and by reducing his incentive level as a result of his refusal to complete the recommended treatment program. Defendants move for summary judgment on each of plaintiffs claims.
II. Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith. Radio Corp., 475 u.s. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
When a plaintiff appears pro se, as is the case here, the court construes his pleadings liberally and judges them against a less stringent standard than pleadings drawn by attorneys. See, e.g., Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Hall v. Belimon, 935 F.2d 1106, 1110 (10th Cir. 1991)). That pro se pleadings are to be accorded liberal construction does not, however, mean that the court is required, or even authorized, to assume the role of advocate for the pro se party. Hall, 935 F.2d at 1110 ([W]e do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant.")
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Analysis
A. Res Judicata
Defendants argue that plaintiffs prior state habeas corpus action precludes this § 1983 action. The court disagrees.
On June 26, 1996, Mr. Reed filed a petition for writ of habeas corpus in the district court of Leavenworth County, Kansas, challenging defendants' actions in allegedly forcing him to participate in the SATP. Mr. Reed's petition was dismissed by the district court on August 13, 1997. On September 22, 1997, Mr. Reed's appeal of the district court's order was transferred from the Kansas Court of Appeals to the Kansas Supreme Court. On February 2, 1999, the Kansas Supreme Court granted Mr. Reed's motion to voluntarily dismiss his appeal. Mr. Reed filed the present civil rights action seeking monetary damages pursuant to 42 U.S.C. § 1983 in this court on December 21, 1998.
Specifically, Mr. Reed seeks compensatory damages in the amount of $150,232.89. Also included in his § 1983 complaint is a prayer for injunctive relief in the form of an order directing defendants to refrain from requiring plaintiff to participate in the SATP, as well as an order directing defendants to release plaintiff on parole. To the extent that plaintiffs claims for these forms of injunctive relief in the previous state court habeas proceedings were asserted and rejected, they are barred by the doctrine of res judicata, and are not properly assertable in this action.
In Rhodes v. Hannigan, 12 F.3d 989 (10th Cir. 1993), the Tenth Circuit held that a state inmate's § 1983 action is not barred by a previous state court habeas proceeding, even where the claims asserted in both actions arise out of the same set of facts. Rhodes, 12 F.3d at 991 (citing Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)). This is true, the Tenth Circuit reasoned, because "a petition for habeas corpus and [a] § 1983 action are premised on different wrongs and request different relief." Id. Indeed, whereas a habeas corpus proceeding "attacks the fact or duration of a prisoner's confinement and seeks the remedy of immediate release or a shortened period of confinement . . . . a civil rights action . . . attacks the conditions of the prisoner's confinement and requests monetary compensation for such conditions." Id. (citation omitted). Noting the fundamental differences in the types of actions as well as its longstanding rule that "although a § 1983 action and a habeas corpus action can be joined, there is no requirement that a prisoner do so," the Tenth Circuit held that a judgment in an inmate's state court habeas action did not preclude his subsequently-filed § 1983 action for damages in federal court. Id. at 992.
In this case, plaintiff seeks compensation in the form of monetary damages for the constitutional deprivations he has allegedly suffered at the hands of the defendants. The court concludes that, under the principles announced in Hannigan, the judgment rendered with respect to plaintiffs state court habeas petition does not bar his § 1983 claims here. Defendants' motion for summary judgment on this basis is, therefore, denied.
In his original complaint, in addition to his ex post facto claim, plaintiff alleged that defendants violated his Fourth, Fifth, Ninth, and Fourteenth Amendment rights. Defendants moved for summary judgment on each of plaintiffs constitutional claims. In his response to defendants' motion, although in the "Nature of the Case" section plaintiff states that he "further alleges that the defendants deprived him of his rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments," P1. Mem. in Opp. at 2, the only substantive issues addressed by plaintiff in his brief concern defendants' res judicata/collateral estoppel argument, the ex post facto allegation, and his Fifth Amendment claim.
As a general rule, arguments not addressed by the non-movant in response to a motion for summary judgment are deemed abandoned. See Wesley v. Don Stein Buick, Inc., 42 F. Supp.2d 1192, 1195 n. 2 (D. Kan. 1999). Although the court must liberally construe plaintiffs papers due to his status as a pro se litigant, the court is not required to construct and advance otherwise unraised arguments on plaintiffs behalf. See, e.g., Bellmon, 935 F.2d at 1110 (despite the less stringent standard to which pro se pleadings are entitled, "we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant.") Thus, the court will not consider the merits of any arguments that could have been made with respect to whether the Fourth, Ninth and Fourteenth Amendments are implicated by the rehabilitative program at issue here.
The court notes that, even if it were to sua sponte advance arguments on plaintiffs behalf with respect to any possible Fourth, Ninth, or Fourteenth Amendment claims that could have been asserted in response to defendant's motion, it would likely reject them for the reasons stated by other courts that have recently addressed the issues under similar (if not identical) sexual abuse/sex offender treatment programs. See, e.g., Neal v. Shimoda, 131 F.3d 818, 831 (9th Cir. 1997) (although Hawaii's SOTP afforded inmate liberty interest in not being labeled a "sex offender" which in turn triggered requirement that he successfully complete SOTP as condition to parole, because inmate was convicted of attempted rape which is "obviously a sex offense," he received all the process to which he was due); Lile v. McKune, 24 F. Supp.2d 1152, 1164 (D. Kan. 1998) (although Kansas' SATP plethysmograph testing "intrudes upon plaintiffs constitutional right to privacy and bodily integrity, . . . [prison officials'] governmental interest in rehabilitation outweighs plaintiffs right to be free from such intrusion.")
In his papers, plaintiff challenges the constitutionality of the SATP and its implementing administrative regulations. First, plaintiff claims that, because he was sentenced prior to the inception of the SATP, the fact that he is required to participate in the program or face adverse consequences constitutes an ex post facto law. Second, plaintiff argues that two of the prerequisites to participating in the SATP, namely the requirements that he complete an admission of responsibility form admitting the crimes for which he was sentenced and divulge all aspects of his sexual history, including any uncharged sexual crimes he has previously committed, violate his Fifth Amendment right to be free from self-incrimination. The court considers each argument in turn.
1. Ex Post Facto
Pursuant to K.S.A. § 75-5210a, the secretary of corrections "shall enter into a written agreement with the inmate specifying those educational, vocational, mental health or other programs which the secretary determines the inmate must satisfactorily complete in order to be prepared for release on parole or postrelease supervision." K.S.A. § 75-5210(a). Section 22-3717(g)(2) provides that successful completion of any program plan entered into under K.S.A. § 75-5210a is required as a condition to parole. K.S.A. § 22-3717(g)(2).
Sections 75-5210a and 22-3717(g)(2) were originally enacted by the Kansas legislature in 1988. Mr. Reed was sentenced on October 12, 1982, for crimes committed on June 7, 1982. Plaintiff argues that, as applied to him, K.S.A. § 75-5210a, when read in conjunction with K.S.A. § 22-3717, both of which were adopted well after the time he committed the crimes for which he is serving a life sentence, constitute ex post facto laws because they alter his eligibility for release on parole.
The ex post facto clause of Article I of the United States Constitution prohibits any state, federal, or local legislature from enacting a law which: (1) punishes an act which was innocent at the time it was committed; or (2) retroactively increases punishment for a crime after its commission; and/or (3) retroactively deprives one of a defense available at the time that an offense was committed. Collins v. Youngblood, 497 U.S. 37, 42 (1990). Thus, to run afoul of the ex post facto clause, the relevant law must be retrospective in its operation, and must "disadvantage the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime." Fultz v. Embry, 158 F.3d 1101, 1102 (10th Cir. 1998) (quoting Lynce v. Mathis, 519 U.S. 433, 441 (1997)).
The court notes that, in this case, it is entirely unclear whether plaintiff has been in the past denied parole solely because of his failure to complete the SATP. It is further unclear whether plaintiffs sentence will in the future be affected by his refusal to participate in the SATP. More specifically, whereas the defendants maintain that plaintiffs failure to complete the SATP can have no affect on the duration of his sentence, plaintiff disagrees. Both contentions are largely unsupported by any facts set forth in the record, however. With respect to defendants' contention that plaintiff has "passed his parole eligibility date on a life sentence . . . . [t]hus, his refusal to participate in the recommended SATP would not adversely affect his sentences in any manner," Def. Mem. in Supp. at 3-4, ¶ 7, the only reference made to facts in the record is the defendants' citation to the Martinez report, where an identical assertion is made, but the factual basis for such a statement is not identified. See Martinez Rep., attached to Def. Answer, at 3. For his part, although plaintiff controverts defendants' contention that his eligibility for parole is not conditioned upon his completion of a program plan, the exhibit to which he refers the court in support of that assertion does not address the issue. See P1. Mem. in Opp. at 2, ¶ 7.
A thorough review of all of the papers filed in this case reveals only one other document relating to the issue of plaintiffs eligibility for parole. In a document entitled "Kansas Parole Board Action Notice" attached to, but not referenced in, plaintiffs complaint, it appears that Mr. Reed was "passed" for parole until June 1999. The reasons cited for the parole "pass" are: "serious nature [sic] circumstances of crime; history of crim[inal] acts; [and] non-participation in programs." Whether Mr. Reed has been again considered for parole is unclear from the record.
The evidence in the summary judgment record is wholly inconclusive as to whether Mr. Reed's refusal to participate in the SATP is the only reason why Mr. Reed remains in prison. Instead, at least insofar as his May 1997 hearing is concerned, it is clear that the board premised its denial on factors other than his refusal to participate in the SATP, i.e., seriousness of the crime for which he sentenced, and his history of criminal acts. While his refusal to participate in the SATP was apparently considered by the board in its 1997 decision, the record does not indicate that Mr. Reed would have been paroled even if he had completed the SATP. The court cannot simply conclude that, as a matter of law, plaintiff is not currently out on parole because he has failed to complete the SATP. Thus, because Mr. Reed's ex post facto claim is premised on the contention that his sentence has been retroactively increased as a direct result of his refusal to participate in the SATP, and further because nothing in the record supports that assertion, plaintiff has failed to demonstrate an issue of material fact for trial with respect to his ex post facto claim.
Moreover, in light of the Tenth Circuit's recent decision in Chambers v. Colorado Dept. of Corrections, 205 F.3d 1237 (10th Cir. 2000), the court concludes that defendants are entitled to summary judgment on Mr. Reed's ex post facto claim in any event. In Chambers, the Tenth Circuit held that, because an inmate "possesses no vested right in a particular parole date or parole hearing eligibility date," no ex post facto violation occurs, even if the inmate's failure to participate in Colorado's Sexual Offender Treatment Program (SOTP) results in a reduction of plaintiffs earned time credits, which, in turn, alters the dates on which the inmate would otherwise be eligible for parole. Id. at 1242. The program at issue in Chambers did not criminalize an activity which was legal at the time it was undertaken, nor retroactively increase the punishment for a previously-committed crime. Id. "Thus, because application of the SOTP "did not affect the legal consequences of [the plaintiffs] crime or increase his punishment,' there is no ex post facto violation." Id. (quoting Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998)).
The court recognizes that the Colorado SOTP addressed in Chambers differs from the SATP at issue here in that failure to successfully complete the SATP under Kansas law impacts an inmate's eligibility for parole, see K.S.A. § 22-3717(g)(2), as opposed to Colorado's regime of reducing earned-time credits for non-participation in its SOTP, see Chambers, 205 F.3d at 1240. Although the Colorado program did not specifically condition an inmate's parole eligibility upon the successful completion of the treatment program, however, there is no suggestion that such a situation would affect the result reached in Chambers. Indeed, the Chambers court quoted, with apparent approval, the Ninth Circuit's rejection of a claim that Hawaii's SOTP program, which conditioned parole eligibility upon an inmate's participation in the SOTP, violated the expost facto clause. Id. at 1243 ("The Ninth Circuit concluded there was no ex post facto violation because the "Supreme Court has held that such mandatory treatment programs following an inmate's classification as a sex offender based on conduct which occurred prior to the program's beginning do not violate the Ex Post Facto Clause."' (quoting Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir. 1997)). sA set forth above, it is unclear from the record before the court whether plaintiff has been denied parole on the sole basis of his failure to participate in the SATP, and thus it is unclear whether the facts here would even support an ex post facto claim in the first place. Moreover, even if plaintiff were able to adduce evidence that he had been denied parole solely on the basis that he failed to complete the SATP, because he "possesses no vested right in a particular parole date or parole hearing eligibility date," Chambers, 205 F.3d at 1242, the court concludes that his ex post facto claim would fail in any event. In short, because there is no evidence here that plaintiffs punishment has been increased, or that the legal consequences of plaintiffs crime are affected, by his failure to participate in the SATP, defendants' motion for summary judgment with resnect to Mr. Reed's expost facto claim is granted.
2. Fifth Amendment
The court next considers Mr. Reed's argument that the automatic imposition of adverse regulatory consequences on the basis of his refusal to participate in the SATP violates his Fifth Amendment right to be free from compelled self-incrimination. It is undisputed that plaintiff may not participate in the SATP unless he not only admits that he is guilty of the crimes for which he was sentenced, but also furnishes a detailed sexual history, including all prior sexual activity which may or may not involve the commission of uncharged criminal acts. It is further uncontroverted that SATP participants are granted no immunity for the disclosures offered pursuant to the SATP's requirements. Because Mr. Reed has asserted his Fifth Amendment right against self-incrimination as the reason for his refusal to participate in the SAT?, and further because IMP? 11-101 operates to reduce his incentive level as a result of his refusal to complete the program, Mr. Reed argues that he is being unconstitutionally punished for asserting his Fifth Amendment rights.
The Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that "[n]o person. . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. v. The Fifth Amendment not only protects an individual from being forced to "testify against himself at a criminal trial in which he is a defendant, but also "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."' Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). Where, however, the individual's disclosure to government officials is voluntary, the privilege is waived, and no Fifth Amendment violation occurs. United States v. Washington, 431 U.S. 181, 187 (1977).
To date, at least three federal district judges in the District of Kansas have considered whether the requirements for participation in Kansas' SAT?, as well as whether the administrative consequences triggered by an inmate's refusal to complete the SATP, implicate the Fifth Amendment's protection against self-incrimination. See, e.g., Searcy v. Simmons, 97 F. Supp.2d 1055, — , 2000 WL 572022, at *3-*4 (D. Kan. 2000) (Vratil, J.) (no Fifth Amendment violation); Lile v. McKune, 24 F. Supp.2d 1152 (D. Kan. 1998) (Saffels, J.) (SATP prerequisites violate inmate's Fifth Amendment rights), Kirkpatrick v. Simmons, No. 96-3140-MLB (D. Kan. Jun. 24, 1998) (doc. 26) (Belot, J. adopting report and recommendation filed June 12, 1998 by Karen Humphreys, Magistrate Judge (doc. 25)) (no Fifth Amendment violation). With respect to this question, the court finds Judge Vratil's thoughtful analysis of the Fifth Amendment issue in Searcy particularly persuasive. See Searcy, 97 F. Supp. at — , 2000 WL 572022, at *3-*4 As a result, the court reaches the conclusion that, in light of the Supreme Court's recent decision in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998), Mr. Reed's Fifth Amendment claim must fail.
In Woodard, the Court analyzed Ohio's clemency hearings, and held that the requirement that a death row inmate admit responsibility for the crime with which he was charged in an effort to improve his chances of receiving clemency did not offend the Fifth Amendment. Id. at 285-87. As here, no immunity was extended to any incriminating information divulged during clemency interviews. Id. Because the decision to participate in a clemency interview is voluntary, the Supreme Court concluded, any statements made by the inmate at that time are not "'compelled' within the meaning of the Fifth Amendment." Id. at 286 ("It is difficult to see how a voluntary interview could 'compel' respondent to speak.")
While it is true that prison officials may not penalize the plaintiff for asserting his Fifth Amendment right to be free from compulsory self-incrimination, "prison officials may constitutionally deny benefits to a prisoner who, by invoking his privilege against self-incrimination, refuses to make statements necessary for his rehabilitation, as long as their denial is based on the prisoner's refusal to participate in his rehabilitation and not his invocation of his privilege." Doe v. Sauer, 186 F.3d 903, 906 (8th Cir. 1999) (denial of parole on basis of failure to complete Iowa's SOTP permissible). Here, it is uncontested that plaintiff has the right to refuse to complete any rehabilitative programs recommended by prison officials. That the plaintiffs refusal to take part in the SATP triggers a reduction in incentive level status does not transform his decision not to participate into an involuntary one. So long as the denial of privileges is premised upon Mr. Reed's choice to refuse to take advantage of the rehabilitation programs offered by the correctional facility, rather than upon his assertion of his Fifth Amendment rights, no constitutional violation has occurred. Accordingly, the court concludes that defendants are entitled to summary judgment with respect to plaintiffs Fifth Amendment claim. IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion for summary judgment (doc. 18) is granted. Plaintiffs complaint is dismissed in its entirety.
The court notes that, in Bankes v. Simmons, 265 Kan. 341, 963 P.2d 412 (Kan. 1998), the Kansas Supreme Court found that the SATP's participation requirements did not encroach upon an inmate's Fifth Amendment rights, explaining that statements elicited from SATP participants may not be used against the inmates in subsequent criminal proceedings. See Bankes, 265 Kan. at 352-53, 963 P.2d at 420 ("Thus, respondents, in administering their Sexual Abuse Treatment Program, can insist that the petitioner admit responsibility, so long as his or her admission is not used against the petitioner in later criminal proceedings.")
In their papers, defendants moved for summary judgment on plaintiffs constitutional claims on the additional basis that the doctrine of qualified immunity shields them from liability for any constitutional deprivation their actions may have effected upon plaintiff. The qualified immunity doctrine shields government officials from personal liability under 42 U.S.C. § 1983 "unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known."' Baptiste v. JCPenney Co., Inc., 147 F.3d 1252, 1255 (10th Cir. 1998). Where the defense of qualified immunity is raised, the first step in analyzing plaintiffs 42 U.S.C. § 1983 claim "is to identify the exact contours of the underlying right said to have been violated." County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998). Because the court concludes that plaintiff has failed to state a claim of constitutional dimension, the court need not address the second prong of the qualified immunity defense, i.e. whether the constitutional right implicated by plaintiffs claims is "clearly established." Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 516 n. 6 (10th Cir. 1998) ("[I]f the plaintiff has not sufficiently alleged the violation of a constitutional right, then we need not proceed to the second inquiry (whether the right is clearly established).").