Consequently, because Bollig has no protectible liberty interest, the Defendants have not deprived him of due process. In ruling that Bollig has no protectible liberty interest in being free from participating in the DEP, this court disagrees with the holding in Sundby v. Fiedler, 827 F. Supp. 580 (W.D.Wis. 1993). In that case, the court ruled that Gary Sundby, a similarly situated inmate at the Oshkosh Correctional Institution, had a limited liberty interest in being free to refuse attending the DEP.
Rehabilitation, of course, is a legitimate penological objective.See O'Lone, 482 U.S. at 348, 107 S.Ct. at 2404; see also Procunier v. Martinez, 416 U.S. 396, 413-14, 94 S.Ct. 1800, 1811-12, 40 L.Ed.2d 224 (1974); Dawson v. Scurr, 986 F.2d 257, 260 (8th Cir. 1993); United States v. Stotts, 925 F.2d 83, 86 (4th Cir. 1991); Siddiqi v. Leak, 880 F.2d 904, 909 (7th Cir. 1989); Guajardo v. Estelle, 580 F.2d 748, 762 (5th Cir. 1978); Sundby v. Fiedler, 827 F. Supp. 580, 583 (W.D.Wis. 1993); Bressman v. Farrier, 825 F. Supp.231, 235 (N.D.Iowa 1993). Decisions of the United States Court of Appeals for the Eighth Circuit, subsequent to the Court's holdings in Turner and Abbott, have routinely applied these four factors and the "reasonably related to a legitimate penological interest" test to determine whether prison regulations impermissibly impinge on prisoners' constitutional rights.
Notwithstanding these mistakes, the judge observed, the prison officials were entitled to qualified immunity from Knowlin's § 1983 claims because of uncertainty in the case law over a prisoner's right to refuse different kinds of medical treatment. Although the Supreme Court had made clear that prisoners possess a liberty interest in avoiding consequences qualitatively different from the typical conditions of confinement, see, e.g., Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990); Vitek v. Jones, 445 U.S. 480, 494, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), district courts were conflicted over the rights of prisoners to refuse to participate in rehabilitative programs, compare Sundby v. Fiedler, 827 F.Supp. 580, 583 (W.D.Wis. 1993) (liberty interest in refusing rehabilitative program), with Bollig v. Fiedler, 863 F.Supp. 841, 848-49 (E.D.Wisc. 1994) (no liberty interest in refusing rehabilitative program). And even if the case law provided a clear rule, the judge added, Knowlin had not met his burden of showing that the substance-abuse treatment resembled other treatments that would deprive him of a liberty interest.
This court has previously interpreted Washington, Vitek and Youngberg to stand for the proposition that prisoners have a "right to be free from unjustified bodily and mental intrusions." Sundby v. Fiedler, 827 F. Supp. 2d 580, 583 (W.D. Wis. 1993). More specifically, the court concluded that prisoners have a limited substantive right to refuse participation in a sex offender treatment program, even if it is "carried out without using physical restraints, injections or other bodily intrusions." Id.
Participation in a voluntary rehabilitation program which requires inmates to accept responsibility of their crimes does not offend the constitutional privilege against self-incrimination. See Russell v. Eaves, 722 F. Supp. 558, 560 (E.D.Mo. 1989) (voluntary sexual offender treatment program requiring inmates to accept responsibility for crimes did not violate Fifth Amendment), appeal dismissed, 902 F.2d 1574 (8th Cir. 1990); cf. Sundby v. Fiedler, 827 F. Supp. 580 (W.D.Wis. 1993) (inmate's limited interest in refusal to participate in sex offender treatment designed to help offenders accept responsibility outweighed by penological interest in rehabilitation). Access to law library
We first note that Morrow does not have a fundamental right to refuse treatment. See Sundby v. Fiedler, 827 F. Supp. 580, 583 (W.D. Wis. 1993) (citing Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). Second, Morrow does not have a fundamental right to receive treatment.