                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          DEC 22 2003
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 ANTHONY RANDAZZO
 MCBAYNE,

          Plaintiff - Appellant,                       No. 03-1228
                                                    (D.C. No. 03-Z-549)
 v.                                                      (D. Colo.)

 MICHAEL V. PUGH, in his individual
 capacity, Former Warden, ADX-
 Florence; DANIEL SHOFF, in his
 individual capacity, Former S.I.A.,
 ADX-Florence; MARK COLLINS, in
 his individual capacity, ADX-
 Florence,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **


      Plaintiff-Appellant Anthony McBayne, a federal prisoner incarcerated at


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
United States Penitentiary (USP) in Florence, Colorado, appeals from the district

court’s dismissal of his complaint for damages filed pursuant to Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The

district court dismissed the complaint as legally frivolous under the standard set

forth in 28 U.S.C. § 1915A(b). Because we agree with the district court that Mr.

McBayne has not alleged a violation of a protected constitutional right, we affirm

the dismissal of this action as frivolous under § 1915A(b).

      Mr. McBayne is a federal prisoner who from 1997 to 2001 was incarcerated

at USP Florence, Colorado. Upon arrival at USP Florence in 1997, Mr. McBayne

was accepted into the pre-transfer program through which inmates may earn a

transfer to a lower security facility. Mr. McBayne alleges that in December 2000,

prison officials approached him requesting his assistance with an ongoing

investigation into allegations that prison guards were accepting money and gifts

from inmates in exchange for contraband. Mr. McBayne denied any culpability

and refused to cooperate. Following his refusal, Mr. McBayne was issued two

reports of misconduct, which caused his removal from the pre-transfer program.

The two misconduct reports were later dismissed and Mr. McBayne was reinstated

to the pre-transfer program. He was subsequently transferred to USP Allenwood,

Pennsylvania.

      Mr. McBayne further alleges that once he arrived at Allenwood, federal


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investigators continued to request his assistance with their ongoing investigation.

He continued to refuse. In April 2002, Mr. McBayne was transferred back to USP

Florence because of his continued refusal to cooperate with investigators. The

specific reason for the transfer was his refusal to take a polygraph exam

concerning information he previously provided. R. Doc. 4, Ex. 8.

      To succeed in a Bivens action, Mr. McBayne must demonstrate that federal

officials violated his constitutional rights while acting under color of federal law.

Dry v. United States, 235 F.3d 1249, 1255 (10th Cir. 2000). Specifically, Mr.

McBayne alleges that defendants retaliated against him because he elected to

exercise his constitutional right against self-incrimination as guaranteed by the

Fifth Amendment.

      The district court dismissed the majority of Mr. McBayne’s claims due to

his failure to exhaust administrative remedies before filing suit as required by 42

U.S.C. § 1997e(a). See Porter v. Nussle, 534 U.S. 516, 532 (2002). Mr.

McBayne appeals this determination, but a review of the record indicates that the

district court was correct that Mr. McBayne had failed to exhaust remedies for

every claim except that of retaliatory treatment by prison staff for exercise of his

constitutional right against self-incrimination. We therefore consider only that

claim on appeal.

      Though commitment to a penal facility may limit an inmate in the exercise


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of his constitutional rights, inmates may not be retaliated against for exercising

those constitutional rights they do retain. Frazier v. DuBois, 922 F.2d 560, 561

(10th Cir. 1990). An inmate must prove that “but for” the retaliatory motive, the

adverse action would not have occurred. Peterson v. Shanks, 149 F.3d 1140,

1144 (10th Cir. 1998). In his pro se brief, Mr. McBayne alleges that, contrary to

the holding of the district court, his refusal to cooperate with federal investigators

constituted an invocation of his Fifth Amendment right against self-incrimination

and was motivated by a desire to avoid criminal prosecution. For two reasons, we

disagree. First, Mr. McBayne did not invoke his Fifth Amendment rights at the

time of his initial questioning and he may not resurrect them now. Second, the

district court reasonably interpreted Mr. McBayne’s claim to assert a right not to

cooperate with authorities, rather than a violation of any constitutional right.

      The fact that Mr. McBayne is a federal prisoner does not serve to strip him

of his privilege against self incrimination. McKune v. Lile, 536 U.S. 24, 36

(2002) (plurality opinion). Fifth Amendment protections, however, may not be

invoked retroactively. See Roberts v. United States, 445 U.S. 552, 559 (1980)

(“The Fifth Amendment privilege against compelled self-incrimination is not self-

executing. At least where the Government has no substantial reason to believe

that the requested disclosures are likely to be incriminating, the privilege may not

be relied upon unless it is invoked in a timely fashion.”); United States v. Rogers,


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921 F.2d 975, 979 (10th Cir. 1990). Plaintiff admits to cooperating with the

authorities and giving a statement, but then refusing to sign a statement, take any

polygraph exam, or further cooperate. R. Doc. 5 at 20-23, 25, 27-28, 31-32, 36.

      On May 2, 2002, Mr. McBayne wrote a letter reminding the warden that

McBayne had “a constitutional right not to be a witness against [him]self and not

to cooperate with any law enforcement agents in their investigation where [he]

may be a defendant.” R. Doc. 4, Ex. 7 at 2. However, in his lengthy affidavit of

March 3, 2003, Mr. McBayne repeatedly states that he denied any involvement in

the offenses being investigated. See, e.g., R. Doc. 5 at 1, 4. Consistent with 42

U.S.C. § 1915A, we think it was reasonable for the district court to construe Mr.

McBayne’s complaint as asserting a right not to cooperate with law enforcement

authorities, rather than asserting a right to be free of compulsory self-

incrimination. Plainly, a “right to remain silent” does not encompass the former,

as concealment of crime has always been disfavored. See 18 U.S.C. § 4

(misprision of a felony); Roberts, 445 U.S. at 557-58; Branzburg v. Hays, 408

U.S. 665, 696-97 (1972).

      Therefore, we AFFIRM the district court’s dismissal of Mr. McBayne’s

action. Mr. McBayne is granted leave to proceed in forma pauperis. We would




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remind Mr. McBayne that he must continue to make payments until the entire

filing fee has been paid.


                                    Entered for the Court


                                    Paul J. Kelly, Jr.
                                    Circuit Judge




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