                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1065
                                    ___________

Randy Lee Closs,                         *
                                         *
      Appellee,                          *
                                         * Appeal from the United States
             v.                          * District Court for the District of
                                         * South Dakota.
Douglas Weber, Warden of the             *
South Dakota State Penitentiary,         *
                                         *
      Appellant.                         *
                                    ___________

                             Submitted: October 19, 2000

                                   Filed: January 30, 2001
                                    ___________

Before WOLLMAN, Chief Judge, and BEAM and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                              ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Fourteen years after his conviction in state court, Randy Closs was granted a
conditional parole. The parole agreement, which he signed, stated that "[i]n
consideration" of being granted parole he would comply with instructions regarding his
parole supervision and with other "special limitations and conditions." Mr. Closs had
a long-term diagnosis of schizophrenia, and as part of the "special limitations and
conditions" of his parole he agreed to "[b]egin and maintain psychological or
psychiatric treatment at a facility or with a psychologist or psychiatrist approved by the
[Board of Pardons and Parole]."

        In compliance with the parole agreement, Mr. Closs voluntarily entered a board-
approved mental health facility for psychiatric treatment. At the facility, his attending
psychiatrist prescribed a psychotropic drug for him. Psychotropic drugs are "commonly
used in treating mental disorders such as schizophrenia" by altering the chemical
balance in the brain, see Washington v. Harper, 494 U.S. 210, 214 (1990). Mr. Closs
initially refused to take the prescribed medication. After his parole agent reportedly
explained to him that "cooperation with his treatment was imperative and that any
future refusal to do so would ... result in a [parole] violation," he took the drug for
about two days. On the next day, Mr. Closs refused a scheduled increase in his
medication, and for the next two days he refused to take the medication at all. The
facility then discharged him to his parole agent.

        At his parole violation hearing, Mr. Closs testified that the parole agreement did
not require him to take medication, and that he quit taking the medicine because it
caused him side effects, including a dry mouth, stiff muscles, and drowsiness. The
board concluded that he had violated his parole conditions by failing to comply with
"all instructions affecting [his] supervision." As a result, the board revoked Mr. Closs's
parole and reduced his good-time credits by two years. See S.D. Codified Laws
§ 24-15-24.

       Mr. Closs petitioned for a writ of habeas corpus in state court, see S.D. Codified
Laws § 21-27-1, contending that his parole revocation violated due process. The state
court denied Mr. Closs's petition without opinion, but it granted him a certificate of
probable cause to appeal. See S.D. Codified Laws § 21-27-18.1. The state supreme
court affirmed without opinion the trial court's denial of Mr. Closs's habeas petition.
See Closs v. Weber, 596 N.W.2d 734 (S.D. 1999).

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       Mr. Closs then filed a petition under 28 U.S.C. § 2254 in federal court, claiming
that he had a right not to take his medication, that his due process rights were therefore
violated when the board revoked his parole for failure to take his medication while in
a mental health facility, and that state law regarding mental health treatment was not
followed. The district court granted Mr. Closs's § 2254 petition in part and ordered that
his good-time credits be restored to him. See Closs v. Weber, 87 F. Supp. 2d 921, 936
(D. S.D. 1999).

       The board, through the warden of the South Dakota State Penitentiary, appeals
the district court's order. We reverse.

                                            I.
       We review the district court's conclusions of law de novo. See Whitmore v.
Kemna, 213 F.3d 431, 432 (8th Cir. 2000). The relevant facts in this case are
undisputed, and therefore, with regard to any claim adjudicated on the merits in state
court and rejected there, we may affirm the district court's grant of a writ of habeas
corpus only if the state court adjudication "resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the [United States] Supreme Court," see 28 U.S.C. § 2254(d)(1); see
also Evans v. Rogerson, 223 F.3d 869, 871-72 (8th Cir. 2000). "[C]learly established
Federal law, as determined by the Supreme Court," refers to the Supreme Court's
holdings, not dicta, that were in existence at the time of the state court's decision. See
Taylor v. Williams, 120 S. Ct. 1495, 1523 (2000). The summary nature of a state
court's decision does not affect the applicable standard of review under § 2254(d)(1).
See James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999), cert. denied, 120 S. Ct.
994 (2000).




                                           -3-
        Under § 2254(d)(1), a state court decision is "contrary to" established federal
law if it contradicts the governing Supreme Court cases on a question of law or if, when
confronting facts "materially indistinguishable," Williams, 120 S. Ct. at 1520, from the
facts addressed in a Supreme Court decision, it reaches a different result. See id. at
1519-20, 1522. We have located no Supreme Court legal determination contradicted
by the state court's decision in this case, and the Supreme Court has not confronted
facts indistinguishable from those presented here. We therefore conclude that the state
court's denial of Mr. Closs's habeas corpus petition was not "contrary to" clearly
established federal law, see § 2254(d)(1).

       Because the state court's decision was not contrary to Supreme Court precedent,
we may uphold the district court's grant of relief to Mr. Closs only if the state court
decision involved an "unreasonable application" of federal law under § 2254(d)(1). A
writ may not issue based on the state court's "unreasonable application" of Supreme
Court precedent, id., solely because a federal court concludes that the state court
decision erroneously applied the law; the state court's erroneous application of the law
"must also be unreasonable," see Williams, 120 S. Ct. at 1522. Whether the state
court's application of federal law was unreasonable is an objective inquiry. See id. at
1521.

                                            II.
       Although the Supreme Court has not addressed the treatment of mentally ill
parolees, the Court, prior to Mr. Closs's 1997 parole date, had considered the
fourteenth amendment due process rights of state prisoners who are involuntarily
treated for mental illness. In Vitek v. Jones, 445 U.S. 480, 491 (1980), the Court held
that the due process clause requires that "appropriate procedural protections" be
observed before a state prisoner may be involuntarily transferred to a mental hospital.




                                          -4-
        With regard to medication, the Court held ten years after Vitek that a state prison
policy may confer upon prisoners "a right to be free from the arbitrary administration"
of psychotropic drugs, Harper, 494 U.S. at 221, and that the due process clause itself
provides inmates "a significant liberty interest in avoiding the unwanted administration"
of these drugs, id. at 221-22. The Court concluded that the constitutional right to
refuse psychotropic medications may be overcome if the inmate has a serious mental
illness and is dangerous, and if the treatment is in his or her best medical interest, see
id. at 227; see also Riggins v. Nevada, 504 U.S. 127, 137 (1992). In Riggins, 504 U.S.
at 135, the Court confirmed that prisoners may not be given such drugs forcibly absent
"a finding of overriding justification and a determination of medical appropriateness."

       The Court in Harper, 494 U.S. at 228, also addressed what process is due to
ensure that the decision to medicate an inmate forcibly "is neither arbitrary nor
erroneous." Although the Court did not specify the specific procedural protections that
are mandated by the due process clause, it concluded that the procedures provided by
the state in that case (including notice, a hearing, and decision makers who were not
involved in the inmate's treatment) were adequate. See id. at 216, 236.

        In Mr. Closs's case, as in Harper, the state requires that certain procedures be
followed before the "involuntary treatment" of inmates with psychotropic medication,
see S.D. Codified Laws § 24-2-33, and we note that parolees remain "inmate[s]" under
state law until their terms of imprisonment expire, see S.D. Codified Laws § 24-15-1.1.
In addition, the state prohibits the forcible administration of psychotropic medication,
absent an emergency, to anyone admitted to a mental institution. See S.D. Codified
Laws § 27A-12-3.12, § 27A-12-3.23.

                                             III.
       The Supreme Court cases that we cite above establish that prisoners have a
liberty interest in being free from being forcibly medicated with psychotropic drugs and

                                           -5-
that procedural protections must be provided to prisoners before this liberty interest
may be taken from them. We believe, however, that the state court could reasonably
have concluded that such protections were inapplicable to Mr. Closs's circumstances.

       First, we believe that the state court could reasonably have decided that it was
not required to rely upon the above cases because Mr. Closs, rather than being forcibly
medicated, agreed to treatment that included prescribed medication. Although
Mr. Closs correctly stated that the parole agreement did not require him to take
prescribed medication, the agreement did provide that he would maintain
board-approved mental health treatment. We believe that the state court could have
determined as a matter of law that under the facts presented here the parole agreement
to maintain "treatment" necessarily included an agreement to take the drugs that were
prescribed as an integral part of that treatment. Cf. Franceschi v. American Motorists
Insurance Co., 852 F.2d 1217, 1220 (9th Cir. 1988) ("treatment" includes management
of illness by administration of drugs). As the district court stated, "the phrase
'psychiatric treatment' certainly includes the possibility of administration of
psychotropic medications," Closs, 87 F. Supp. 2d at 935. Psychotropic drugs are used
to treat schizophrenia, see Harper, 494 U.S. at 214, and Mr. Closs had been treated
with psychotropic drugs in the past.

       In addition, there was no evidence that Mr. Closs was forced to agree to the
parole terms or that he objected to the treatment condition when it was imposed, and
state law specifically provides that an inmate is "not required to accept a conditional
parole," see S.D. Codified Laws § 24-15-1.1. The board's decision whether to grant
parole to Mr. Closs was discretionary, moreover, see id., and he therefore had no
protected liberty interest in receiving it, see Greenholtz v. Inmates of Nebraska Penal
and Correctional Complex, 442 U.S. 1, 7 (1979); see also Dace v. Mickelson, 816
F.2d 1277, 1282-83 (8th Cir. 1987) (en banc). Thus in return for receiving the
discretionary benefit of parole, Mr. Closs agreed, inter alia, to maintain

                                          -6-
board-approved treatment for his mental illness. Cf. Felce v. Fiedler, 974 F.2d 1484,
1494, 1501 (7th Cir. 1992) (holding that due process clause requires procedural
protections before conditioning mandatory parole on taking psychotropic drugs, but
finding that the right was not "clearly established" at the time of the events in that case).
We also note that when Mr. Closs refused to take his medication, psychotropic drugs
were not forcibly administered to him.

      Although it may be that arbitrary parole conditions violate the Constitution, see
Preston v. Piggman, 496 F.2d 270, 273, 275 (6th Cir. 1974), we do not believe that
under the particular facts presented here, the state court was required to conclude that
the board had arbitrarily required Mr. Closs to maintain mental health treatment that
included psychotropic medication. The Supreme Court has observed that parolees do
not enjoy "the absolute liberty to which every citizen is entitled, but only ... the
conditional liberty properly dependent on observance of special parole restrictions,"
Morrissey v. Brewer, 408 U.S. 471, 480 (1972). Conditions of parole serve the
purpose of prohibiting "behavior that is dangerous to the restoration of the individual
into normal society," id. at 478; see also S.D. Codified Laws § 24-15-11 (parole
agreement may include "reasonable restrictions ... designed to continue the parolee's
rehabilitation"). To accomplish the purposes of parole, those released early from prison
may be subjected to substantial restrictions on their conduct. See Morrissey, 408 U.S.
at 478.

       Here Mr. Closs had a long-term diagnosis of schizophrenia and related
hospitalizations, and he had previously been placed on psychotropic medication for his
condition. His prison physician was concerned that he would have difficulty
functioning in society upon his release and recommended that he receive inpatient
treatment. Furthermore, there was evidence that when Mr. Closs took his medication
his social skills improved and he was less likely to be orally aggressive and to throw
things. Given these facts, we do not believe that the state court was required to

                                            -7-
conclude that the condition imposed was unconstitutional. Cf. United States v. Cooper,
171 F.3d 582, 587 (8th Cir. 1999) (finding "without merit" defendant's challenge to
supervised-release condition that required him to undergo mental health treatment if
"deemed appropriate," where defendant had history of "major depression, refusal to
take anti-depressant medications, and conduct dangerous to himself and others");
United States v. Wilson, 154 F.3d 658, 667 (7th Cir. 1998), cert. denied, 525 U.S.
1081 (1999) (trial court acted within its discretion by ordering defendant during
supervised release to participate in mental health program and take prescribed
medications, based on defendant's history of emotional disturbance, erratic behavior,
mood swings, and depression); and United States v. Gallo, 20 F.3d 7, 9, 11-12, 15 (1st
Cir. 1994) (upholding condition that required probationer suffering from paranoid
schizophrenia to enter inpatient treatment, and permitting probation revocation after
probationer "made it plain," id. at 15, that he would not take his medications or submit
to inpatient treatment).

      Under 28 U.S.C. § 2254(d)(1), we need not decide whether the due process
clause actually requires procedural protections before parole is conditioned on the
taking of psychotropic medication, because we conclude that the state court, by
denying Mr. Closs's habeas petition, did not unreasonably apply Supreme Court
precedent. The state court could have concluded that Mr. Closs's parole agreement
conditioned his parole on his taking psychotropic drugs if they were prescribed, that
when he refused to do so he violated a valid condition of his parole, and that his due
process rights were not violated by the parole revocation.

                                         IV.
      With respect to Mr. Closs's loss of good-time credits, under state law the board
has the discretion to reduce a parolee's good-time credits once it decides that the
parolee has violated the conditions of his or her parole. See S.D. Codified Laws
§ 24-15-24. We note that at his parole violation hearing, Mr. Closs testified that he

                                          -8-
understood that he could lose his good-time credits if the board concluded that he had
violated the terms of his parole agreement, and his good-time credits are not mentioned
specifically in his state habeas petition or in his petition under 28 U.S.C. § 2254.
Because we believe that the state court could properly have upheld the decision to
revoke Mr. Closs's parole, we also conclude that the state court could reasonably have
upheld the board's decision to reduce Mr. Closs's good-time credits under S.D.
Codified Laws § 24-15-24, a statute that Mr. Closs has not challenged.

                                             V.
        With regard to the retaliation claim referred to by the district court, we conclude
after reviewing the record that Mr. Closs did not assert a retaliation claim as a separate
ground for relief in either his state habeas petition or his petition under 28 U.S.C.
§ 2254, and he does not rely on such a claim in this appeal. Insofar as Mr. Closs, by
relying on state statutes in state and federal court, attempts to allege a state-law claim,
we are limited as a federal habeas court to deciding whether "the Constitution or laws
or treaties of the United States" have been violated, see § 2254(a); see also Reed v.
Farley, 512 U.S. 339, 345-46 (1994). We have not found, nor have the parties cited
to us, authority under which we may examine issues of state law in this action. See
Cole v. Young, 817 F.2d 412, 416 (7th Cir. 1987); see also United States ex rel.
Hoover v. Franzen, 669 F.2d 433, 436-37 (7th Cir. 1982) (neither the habeas corpus
statutes nor principles of pendent jurisdiction allow collateral review of questions of
state law).

                                             VI.
       For the reasons stated, we reverse the district court's order, and we remand the
case to the district court for the entry of an order denying Mr. Closs's petition under 28
U.S.C. § 2254.




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A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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