Opinion
Case No. 2:04-CV-935 PGC.
May 31, 2005
ORDER
Plaintiff, Dan Henry Tijerina, an inmate at the Utah State Prison, filed a pro se civil rights complaint under 42 U.S.C. § 1983. See 42 U.S.C.S. § 1983 (2005). Plaintiff's application to proceed in forma pauperis under 28 U.S.C. § 1915 was granted, although Plaintiff later paid the filing fee in full. This case is now before the Court for screening of Plaintiff's complaint under 28 U.S.C. §§ 1915 and 1915A, see id. §§ 1915-1915A, and consideration of Plaintiff's motions for appointed counsel and preliminary injunctive relief.
ANALYSIS I. Appointed Counsel
Plaintiffs in civil cases generally do not have a constitutional right to counsel. See Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Bee v. Utah State Prison, 823 F.2d 397, 399 (10th Cir. 1987). However, the court may, in its discretion, appoint counsel for indigent inmates under 28 U.S.C. § 1915(e)(1). See 28 U.S.C.S. § 1915(e)(1) (2005); Carper, 54 F.3d at 617; Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). "The burden is upon the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel." McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). When deciding whether to appoint counsel, the district court should consider a variety of factors, "including `the merits of the litigant's claims, the nature of the factual issues raised in the claims, the litigant's ability to present his claims, and the complexity of the legal issues raised by the claims.'" Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting Williams, 926 F.2d at 996); accord McCarthy, 753 F.2d at 838-39.
Plaintiff's primary argument in favor of appointed counsel is that he is unable to adequately present his claims due to his lack of legal training and limited access to legal resources. Plaintiff also asserts that his claims have been found to have merit as demonstrated by the Tenth Circuit's rulings in a related case.
At this stage of the litigation the primary issue before the Court is the legal sufficiency of Plaintiff's allegations. Because no special legal training is required to recount the facts surrounding an alleged injury, pro se litigants may be expected to state such facts without any legal assistance. See Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). Although the legal issues presented in this case are somewhat complex, Plaintiff has clearly demonstrated the ability to adequately present his claims at this stage of the litigation. Plaintiff has filed numerous pleadings both here, and in the Tenth Circuit, with references to relevant statutes, rules and case law.
The Court also disagrees with Plaintiff's assertion that the Tenth Circuit has deemed his claims to have sufficient merit to warrant appointed counsel. As discussed in more detail below, Plaintiff alleged the same facts presented here in a prior case which was dismissed for failure to state a claim. On appeal, the Tenth Circuit remanded one of the claims for dismissal without prejudice based on Plaintiff's failure to exhaust administrative remedies. Although the Tenth Circuit concluded that Plaintiff's Fifth Amendment compulsion claim should not have been dismissed with prejudice, it did not make any determination regarding the merits of that claim. Tijerina, Sr. v. Offender Mgmt. Review Comm., Nos. 03-4054, 03-4134, 91 Fed. Appx. 86, 2004 WL 161540, at *91 (10th Cir. Jan. 28, 2004) ("We find it unnecessary to decide at this point, however, whether Appellant's allegations are sufficient to state a claim . . .").
The Court concludes that Plaintiff has not met his burden of showing that appointment of counsel is warranted in this case. If, as this case progresses, it becomes apparent that appointed counsel is necessary the Court will revisit this issue sua sponte. Thus, the Court denies Plaintiff's motion for appointed counsel at this time and proceeds to screening.
II. Screening Analysis A. Standard of Review
Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to screen complaints filed by persons proceeding in forma pauperis. Title 28 U.S.C. § 1915A requires the Court to screen "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." See 28 U.S.C.S. §§ 1915- 1915A (2005). Each of these statutes require the district court to dismiss claims in a civil complaint if they are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id."Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 806 (10th Cir. 1999). When reviewing the sufficiency of a complaint the Court "presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
Because Plaintiff is proceeding pro se the Court must construe his pleadings liberally and hold them to a less stringent standard than formal pleadings drafted by lawyers. Id. However, "[t]he broad reading of the plaintiff's complaint does not relieve [him] of the burden of alleging sufficient facts on which a recognized legal claim could be based." Id. While Plaintiff need not describe every fact in specific detail, "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Id.
B. Claim Preclusion
The allegations in Plaintiff's complaint are nearly identical to those presented in a previous case filed by Plaintiff in this Court. In Tijerina, Sr. v. Offender Mgmt. Review Comm., No. 2:02cv1066 PGC (D. Utah Feb. 7, 2003), Plaintiff sued the prison's OMR Committee alleging essentially the same facts presented in this case. The Court ultimately dismissed that case in its entirety for failure to state a claim. On appeal, the Tenth Circuit distilled Plaintiff's numerous allegations into the following four claims:
(1) that the withdrawal of ordinary privileges — such as whether he can work, how long he can be out of his cell, how many visits he can have, and how many phone calls he can make — based on his refusal to participate in sex therapy compels him to incriminate himself and violates his rights under the Fifth and Fourteenth Amendments; (2) that the manner in which the OMR Committee withdraws privileges violates his Fourteenth Amendment due-process rights; (3) that conditioning the availability of parole on his participation in sex therapy, which includes the possibility of new charges being brought against him based on admissions he might make, amounts to unconstitutional compulsion in violation of the Fifth and Fourteenth Amendments; and (4) that applying the OMR program to him violates the Ex Post Facto Clause because he was convicted before the program was initiated.Tijerina, Sr. v. Offender Mgmt. Review Comm., Nos. 03-4054, 03-4134, 91 Fed. Appx. 86, 2004 WL 161540, at *89-90 (10th Cir. Jan. 28, 2004). The appeals court upheld the dismissal with prejudice of each of Plaintiff's claims except the third, which was remanded for dismissal without prejudice based on Plaintiff's failure to exhaust available administrative remedies.
Following the district court's dismissal of Plaintiff's third claim without prejudice in accordance with the Tenth Circuit's mandate, Plaintiff pursued that claim through the prison's administrative grievance process. Having now fully exhausted all available administrative remedies, Plaintiff has properly renewed that claim in this case. However, Plaintiff's complaint also includes many of the claims from his original case which were previously dismissed with prejudice.
Under the doctrine of claim preclusion (res judicata) "[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Federated Dep't. Stores v. Moitie, 452 U.S. 394, 398, 101 S. Ct. 2424, 2428 (1981); see also Baker v. General Motors Corp., 522 U.S. 222, 233, n. 5, 118 S. Ct. 657, 664, n. 5 (1998) ("a valid final adjudication of a claim precludes a second action on that claim or any part of it"). Claim preclusion is an affirmative defense which generally must be pleaded. See Federal Rules of Civil Procedure Rule 8C; see also Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U.S. 313, 350, 91 S. Ct. 1434, 1453 (1971). However, "if a court is on notice that it has previously decided the issue presented, the court may dismiss the action sua sponte, even though the defense has not been raised." United States v. Sioux Nation, 448 U.S. 371, 432, 100 S. Ct. 2716 (1980).
The Court concludes that each of the claims presented in this case are closely related, if not identical, to those raised in Plaintiff's previous § 1983 suit against the OMR Committee. Thus, Plaintiff's claim that conditioning the availability of parole on his participation in sex therapy amounts to unconstitutional compulsion in violation of the Fifth and Fourteenth Amendments is the only claim which is now properly before the Court. All other claims presented in this case were either previously dismissed with prejudice, or are so closely related to those dismissed claims that they should have been raised in Plaintiff's previous suit. Thus, the Court will only screen Plaintiff's remaining claim.
C. Improper Defendants-Immunity
Plaintiff's complaint names numerous prison officials as defendants in both their official and individual capacities, including the present and former wardens and assistant wardens of the Utah State Prison, as well as numerous members of the prison's Offender Management Review (O.M.R.) Committee. Plaintiff seeks compensatory and punitive damages against each defendant, and an injunction prohibiting corrections officials from compelling Plaintiff to participate in sex therapy.
In order to state a viable civil rights claim under 42 U.S.C. § 1983 a plaintiff must show an "`affirmative link'" between the harm he allegedly suffered and the actions of each named defendant. See Anaya v. Crossroads Managed Care Sys. Inc., 973 F. Supp. 1228, 1248 (D. Colo. 1997) (citation omitted), rev'd on other grounds, 195 F.3d 584 (10th Cir. 1999). Liability for a civil rights violation cannot be based on respondeat superior. See West v. Atkins, 487 U.S. 42, 54 n. 12, 108 S. Ct. 2250, 2258 n. 12 (1988); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) ("[S]upervisor status by itself is insufficient to support liability. Rather, `[p]ersonal participation is an essential allegation in a § 1983 claim.'") (citations omitted) (second alteration in original).
In addition, civil rights claims which seek money damages from state officials in their official capacities are barred under the Eleventh Amendment. "The Eleventh Amendment prohibits federal courts from exercising jurisdiction over suits involving a citizen seeking damages from a state, except where Congress has specifically granted jurisdiction." Russ v. Uppah, 972 F.2d 300, 302 (10th Cir. 1992). And, "suits against state officials in their official capacity are in essence suits against the state." Id.; see also, Harris v. Champion, 51 F.3d 901, 905-06 (10th Cir. 1995). Congress did not abrogate Eleventh Amendment immunity when it enacted section 1983. Id. at 303.
Finally, government officials sued in their individual capacities are entitled to qualified immunity against claims for monetary damages. The doctrine of qualified immunity provides that "[w]hen government officials are performing discretionary functions, they will not be held liable for their conduct unless their actions violate `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir. 1988) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). Qualified immunity is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go trial." Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Thus, immunity questions should be addressed at the earliest possible stage in litigation. Id. (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
Plaintiff's complaint fails to state claim against the named Defendants based on the principles discussed above. First, Plaintiff's complaint does not allege specific facts linking each of the named defendants to the alleged violation of his Fifth Amendment rights. Second, each of the defendants named in their individual capacities are entitled to qualified immunity from money damages because the rights Plaintiff claims were violated were not clearly established at the time of the alleged violation. As will be discussed later, the case law governing Plaintiff's claims remains unsettled, and does not definitively establish the right asserted by Plaintiff. And, third, to the extent that Plaintiff seeks money damages against the named defendants in their official capacities his claims are barred under the Eleventh Amendment.
Under these circumstances, Plaintiff's complaint would ordinarily be dismissed for failure to name a proper defendant. However, for screening purposes the Court will liberally construe Plaintiff's complaint as a suit against the Director of the Utah Department of Corrections, seeking only injunctive relief. If the Court concludes that Plaintiff's remaining claim has sufficient merit to survive screening then the Director of the Department of Corrections will be joined as the sole defendant in this case under Rule 19(a). See Fed.R.Civ.P. 19(a).
D. Compelled Self-Incrimination
In his only surviving claim, Plaintiff alleges that Utah State Prison officials are compelling him to incriminate himself, in violation of the Fifth and Fourteenth Amendments, by conditioning his eligibility for parole on participation in a sex therapy program in which he will be required to admit prior bad acts and risk being subjected to new criminal charges for those acts which are illegal.
i. Alleged Facts
For screening purposes the Court relies only upon the facts alleged in Plaintiff's complaint, as well as information contained in the attached exhibits. All facts have been liberally construed in Plaintiff's favor.
Plaintiff alleges that as part of his M.A.P. curriculum he was assigned to complete the Sex Offender Treatment Program (S.O.T.P.). Plaintiff refused to sign up for the program because he did not want to provide a sexual history which might incriminate him. In June of 2003 Plaintiff came before the parole board for a Redetermination Hearing in which he sought modification of his originally scheduled parole rehearing date of September 12, 2012. As part of the Redetermination Hearing process the O.M.R. committee submitted a report to the Board recommending no change in Plaintiff's parole rehearing date based on Plaintiff's failure to earn his high school diploma, and failure to get on the S.O.T.P. waiting list. The O.M.R. report also stated that during an interview for enrollment in S.O.T.P. Plaintiff had refused treatment. Although it appears that Plaintiff subsequently enrolled in S.O.T.P. he was removed from the program in December of 2003 for lack of progress, minimal participation, and failure to make a written or verbal disclosure of his past sexual history. Plaintiff was informed that he will not be allowed to sign up for S.O.T.P. again until November of 2005.
Plaintiff's complaint alleges that the O.M.R. committee continues to threaten him with negative reports/recommendations to the parole board if he insists on not participating in S.O.T.P., and that the Board "will deny [him] a parole date" unless he completes the program. Thus, Plaintiff asserts he is being compelled to incriminate himself in violation of the Fifth and Fourteenth Amendments.
ii. Legal Standard
The Fifth Amendment prohibits any person from being "compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This prohibition "not only permits a person to refuse 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, 104 S. Ct. 1136 (1984) (quoting Lekowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, (1973)). In addition, it is well settled that prisoners do not forfeit their privilege against compelled self-incrimination as a result of their conviction or confinement. Id. at 426.Two criteria must be met in order for the privilege against self-incrimination to apply: First, the witness must reasonably believe that his statements may be used to incriminate him. Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814 (1951). And, second, the statements must be compelled. Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S. Ct. 2132 (1977). Compulsion exists when some factor denies the individual the "free choice to admit, to deny, or to refuse to answer." Lisenba v. California, 314 U.S. 219, 241, 62 S. Ct. 280 (1941).
The primary issue in this case then is whether conditioning eligibility for parole on participation in sex therapy, in which the participant will be required to admits prior bad acts and risk being subjected to new criminal charges, amounts to unconstitutional compulsion. Not only is this question a matter of first impression in this circuit, but the law in this area remains unsettled.
In Lile v. McKune, 224 F.3d 1175 (10th Cir. 2000), the Tenth Circuit addressed the closely related question of whether Kansas's sex offender treatment program, which provided that inmates who refused to participate as ordered would automatically lose privileges and be transferred to more restrictive housing, violated the Fifth Amendment. Applying the balancing test laid out in Turner v. Safely, 482 U.S. 78, 107 S. Ct. 2254 (1987), the Tenth Circuit concluded that the sanctions imposed upon Lile placed an unreasonable burden on his Fifth Amendment right against compelled self-incrimination.
That decision was subsequently reversed by the Supreme Court in a sharply divided opinion in McKune v. Lile, 536 U.S. 24, 122 S. Ct. 2017 (2002). In the plurality opinion, four justices relied upon the standard elaborated in Sandin v. Conner, 15 U.S. 472, 484, 115 S. Ct. 2293 (1995), to find that the Kansas program "does not compel prisoners to incriminate themselves in violation of the Constitution." McKune, at 2026 (plurality opinion). In a separate concurrence, Justice O'Connor agreed with the result reached by the plurality, but rejected their application of the Sandin "atypical and significant hardship" analysis. See id. at 2032-33 (O"Connor, J., concurring in the judgment). The four dissenting justices would have found the Kansas program unconstitutional under the traditional balancing test. See id. at 2035 (Stevens, J., dissenting).
Because the holding of a fragmented Supreme Court opinion is the "position taken by those Members who concurred in the judgments on the narrowest grounds," Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993 (1977), "Justice O'Connor's narrower position in her concurrence represents the holding of the plurality decision" in McKune. Reed v. McKune, 298 F.3d 9, 95 (10th Cir. 2002). Thus, the Tenth Circuit has construed McKune to hold only that "the withdrawal of ordinary privileges based on a prisoner's refusal to participate in sex therapy and admit bad acts without immunity does not constitute compulsion for the purposes of the Fifth Amendment privilege against self-incrimination." Tijerina, Sr. v. Offender Mgmt. Review Comm., Nos. 03-4054, 03-4134, 91 Fed. Appx. 86, 2004 WL 161540, at *91 (10th Cir. Jan. 28, 2004) (emphasis added).
McKune's narrow holding unfortunately provides little guidance for deciding the issue presented in this case. Faced with essentially the same issue presented here, the First Circuit noted that Justice O'Connor's narrow concurrence in McKune "does not purport to lay out any abstract analysis or unifying theory that would prefigure her views regarding the constitutionality of [a similar] program." Ainsworth v. Stanley, 317 F.3d 1, 4 (1st Cir. 2002). The Ainsworth court ultimately held that "the reduced likelihood of parole for refusing to participate in [New Hampshire's sex offender treatment program] does not constitute a penalty sufficient to compel incriminating speech in violation of the Fifth Amendment." Id. at 6. However, that conclusion was reached on summary judgment after development of a substantial evidentiary record.
Given the absence of any controlling legal authority on this question within this circuit, and the extremely limited factual record in this case, the Court cannot conclude that Plaintiff's Fifth Amendment claim is subject to dismissal on screening under 28 U.S.C. § 1915. Thus, the Court concludes that Plaintiff's complaint must be served upon the Director of the Utah Department of Corrections for preparation of a Martinez report addressing Plaintiff's Fifth Amendment claim. See Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir. 1987). The report should include detailed information about the objectives and operation of the prison's Offender Management Review and Sex Offender Treatment programs. Special attention should be given to whether participation in these programs is truly voluntary, and whether non-participation affects an inmate's likelihood of being paroled.
In Martinez the Tenth Circuit approved the district court's practice of ordering the prison administration to prepare a report to be included in the pleadings in cases where a prisoner has filed suit alleging a constitutional violation.
III. Motion for Preliminary Injunction
A preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the right to relief is clear and unequivocal. SCFC ILC, Inc. v. VISA USA, Inc, 936 F.2d 1096, 1098 (10th Cir. 1991). To obtain a temporary restraining order or a preliminary injunction in federal court, the movant has the burden of establishing that:
(1) the party will suffer irreparable injury unless the injunction issues; (2) the threatened injury to the moving party outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood that the moving party will eventually prevail on the merits.Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992).
Plaintiff has not made the allegations required and cannot make the showing which would support a preliminary injunction. First, Plaintiff cannot show that he will suffer irreparable injury unless the injunction issues. The primary injury alleged by Plaintiff is the possibility that he will continue to be denied parole without a favorable ruling on his Fifth Amendment claim. However, Plaintiff's next rehearing is currently set for the year 2012, making it highly unlikely that such an injury will occur prior to the resolution of this case. Second, Plaintiff cannot show that he has a substantial likelihood of eventually prevailing on the merits of his claim. As previous discussed, the law applicable to this case remains unsettled, and the factual record is not sufficiently developed to make any determination as to the merits of Plaintiff's claim. Thus, the Court concludes that Plaintiff is not entitled to preliminary injunctive relief at this time.
ORDER
Based on the foregoing analysis, IT IS HEREBY ORDERED that:
(1) Plaintiff's motion for appointed counsel is denied;
(2) Plaintiff's motion for a preliminary injunction is denied;
(3) each of Plaintiff's causes of action, with the exception of the Fifth Amendment claim discussed in Part II-D, supra, are dismissed as res judicata;
(4) Plaintiff's claim for money damages against the named defendants are barred under the doctrines of Eleventh Amendment and qualified immunity, therefore, each of the named Defendants are dismissed from this case;
(5) Scott V. Carver, Director of the Utah Department of Corrections, is joined as the sole Defendant in this case under Rule 19(a);
(6) the United States Marshal shall serve a summons, a copy of Plaintiff's complaint, and a copy of this order, upon Defendant; and,
(7) the Utah Department of Corrections is directed to prepare a Martinez report addressing Plaintiff's remaining Fifth Amendment claim for injunctive relief. The report shall be filed within sixty days of this Order. Plaintiff may file a response within thirty days after being served with the Martinez report.