                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          FEB 4 2004
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 MARK E. CARROLL,

               Plaintiff-Appellant,                     No. 03-3236
          v.                                    (D.C. No. 00-CV-3402-GTV)
 CHARLES SIMMONS, Secretary of                           (D. Kansas)
 Corrections; L. E. BRUCE, Warden,
 Hutchinson Correctional Facility;
 CARLA STOVALL, Attorney General;
 DONALD DAHL; and WAYNE
 BRAWNER, Warden,

               Defendants-Appellees.


                           ORDER AND JUDGMENT           *




Before EBEL , HENRY , and HARTZ , Circuit Judges.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.   This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The 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.
      Plaintiff Mark E. Carroll, appearing pro se, appeals the dismissal of a civil

rights action in which he challenged a sexual-abuse-treatment program in Kansas

prisons. The district court dismissed the action. We affirm.

I.    BACKGROUND

      Plaintiff was convicted of rape and aggravated sodomy, and is currently

incarcerated in Hutchinson Correctional Facility in Hutchinson, Kansas, serving a

fifteen-year-to-life sentence. In light of the nature of Plaintiff’s convictions,

prison officials concluded that he should participate in the Kansas Sexual Abuse

Treatment Program (SATP). The program requires inmates to admit

responsibility for the crime for which they have been committed and to complete

a sexual history form. Plaintiff has not been permitted to participate in the

program due to his refusal to admit to his crimes and to his pursuit of habeas

relief on the ground that he is actually innocent. Because he is not enrolled in the

SATP, Plaintiff remains at incentive level one of the Kansas Department of

Corrections earnable-privilege system. He is consequently treated less favorably

than he was before he refused to participate in the SATP.

      On October 26, 2000, Plaintiff filed an action against Charles Simmons, the

Secretary of the Kansas Department of Corrections, and Louis E. Bruce, the

warden of the Hutchinson Correctional Facility, under 42 U.S.C. § 1983, alleging

that his constitutional rights were being violated by the SATP. His complaint


                                          -2-
alleged that (1) punishing him for refusing to admit his guilt amounted to a

violation of his Fifth Amendment privilege against self-incrimination; (2) Kansas

Secretary of Corrections Internal Management Policy and Procedure (IMPP) 11-

101 was improperly being applied to him retroactively; (3) he had been subjected

to harassment, defamation of character, and discrimination; (4) his property had

been taken from him; (5) he lost good-time credits and was denied a parole

hearing because he was not enrolled in the SATP; (6) he had been denied equal

protection of the law; (7) his Eighth Amendment rights had been violated; and (8)

his Fourth Amendment rights had been violated. On February 26, 2001, Plaintiff

filed an amended complaint naming as additional defendants, Carla Stovall,

Kansas Attorney General, Donald Dahl, a member of the Kansas House of

Representatives, and Wayne Brawner, Classification Administrator of the

Hutchinson Correctional Facility. The amended complaint also contained the

following new claims: (1) that Kan. Stat. Ann. §§ 22-3717 and 75-5210(a) were

improperly being applied to him retroactively; and (2) that he had been denied

privileges and immunities. The crux of Plaintiff’s complaints, however, was that

he was suffering from a violation of his Fifth Amendment rights similar to the

violation that had been found in Lile v. McCune, 224 F.3d 1175 (10th Cir. 2000).

      On January 16, 2002, Plaintiff filed a “Motion for Provisional Remedies” in

which he complained about being held under maximum-custody conditions in


                                         -3-
violation of the Eighth Amendment, and discussed issues relating to sentencing

and parole in some detail. Then, while Plaintiff’s case was pending, the Supreme

Court reversed this court’s decision in Lile, holding that the SATP did not violate

Mr. Lile’s Fifth Amendment privilege against self-incrimination. McCune v. Lile,

536 U.S. 24, 48 (2002). As a result, the district court in this case issued an order

directing Plaintiff to show cause why his claims should not be dismissed under

McCune. The order also denied Plaintiff’s “Motion for Provisional Relief,”

rejecting his attempt to amend the complaint to add new claims and noting that

Plaintiff had already amended his complaint once.

      In response to the show-cause order, Plaintiff asserted that his privilege

against self-incrimination was being violated (notwithstanding the Supreme

Court’s decision in McCune). He also contended that (1) he was being denied the

same privileges as other inmates as a result of his refusal to make a false

confession (we consider this argument to be a combination of Plaintiff’s equal-

protection claim and his claim for violation of his privilege against self-

incrimination); (2) he had suffered a loss of good-time credits, denial of parole

hearings, and a lengthening of his sentence for refusing to make a false

confession (we view this as simply a restatement of Plaintiff’s claim that his

privilege against self-incrimination had been violated); (3) Kan. Stat. Ann. §§ 22-

3717 and 75-5210(a) were being improperly applied to him retroactively; (4) his


                                          -4-
Eighth Amendment rights were being violated because his sentence had been

unlawfully lengthened, and because he had been falsely imprisoned and punished

for refusing to make a false confession; and (5) he had been subjected to double

jeopardy by the parole board’s consideration of the serious nature of the offenses

of which he had been convicted when deciding whether he should be paroled.

      On July 24, 2003, the district court concluded that “plaintiff’s claims under

the Fifth Amendment are defeated by McCune v. Lile,” and dismissed Plaintiff’s

claims. R. Doc. No. 20 at 2. The court also noted that “[t]o the extent plaintiff

pursues relief on sentencing and parole claims, the court previously denied

plaintiff leave to amend the complaint to add such claims.” Id. at 1.

      Plaintiff now appeals. As best we can understand his brief, he contends

that (1) his due process and equal protection rights are being violated because,

despite having rescinded his refusal to participate in the SATP, he is denied

advancement in level due to his pursuit of federal habeas relief based on a claim

of actual innocence; (2) he is being subjected to cruel and unusual punishment;

(3) Kansas has labeled him mentally ill without a civil commitment hearing; (4)

his due process rights have been violated as a result of his being punished for not

submitting to forced psychological treatment; (5) because he is permanently on

level-one status, he is improperly being subjected to solitary confinement; (6)

because he is unable to advance in levels, he has only minimal access to the


                                         -5-
courts and “legal tools”; (7) his equal-protection rights are being violated because

he is not treated like other prisoners; (8) Kansas has knowingly attempted to force

him to make false confessions; (9) the Kansas level system is improperly being

applied to him retroactively, in violation of the Ex Post Facto Clause; (10) he has

suffered a permanent reduction in wages as a result of his inability to advance

beyond level one; (11) his sentence was extended (apparently in violation of his

privilege against self-incrimination); (12) he has been denied a parole hearing

(apparently in violation of his privilege against self-incrimination); (13) the

district court erred when it dismissed his claims after Defendants failed to file a

Martinez report, see Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), and to

answer Plaintiff’s complaint, in violation of the court’s own order; (14) the

district court failed to timely decide the case, but instead waited for the Supreme

Court’s decision in McCune; and (15) the district court should have addressed the

supplemental issues raised in Plaintiff’s response to the show-cause order, and

permitted him to name new defendants.

II.   STANDARD OF REVIEW

      We review the dismissal of Plaintiff’s complaint de novo. See Clark v.

State Farm Mut. Auto. Ins. Co., 319 F.3d 1234, 1240 (10th Cir. 2003).

“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


                                          -6-
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). “[W]e must liberally construe the

allegations of a pro se complaint.” Id. “In determining whether dismissal is

proper, we must accept the allegations of the complaint as true and we must

construe those allegations, and any reasonable inferences that might be drawn

from them, in the light most favorable to the plaintiff.” Id.

III.   DISCUSSION

       Of Plaintiff’s 15 contentions on appeal, contentions (1), (3), (4), (5), (6),

(10), (13), and (14) were not raised below. We address only those contentions

that he preserved in the district court. See Smith v. Rogers Galvanizing Co., 128

F.3d 1380, 1385-86 (10th Cir. 1997).

       A.    Contention 2: Eighth Amendment

       Plaintiff asserts that the consequences of his failure to participate in the

SATP amount to cruel and unusual punishment, in violation of the Eighth

Amendment. We recently rejected a nearly identical argument in Gwinn v. Miller,

2004 WL 49840, *14 (10th Cir. 2004). We again conclude that the loss of certain

privileges and good-time credits due to a refusal to participate in a treatment

program designed to rehabilitate sex offenders does not rise to the level of cruel

and unusual punishment.

       B.    Contention 7: Equal Protection


                                          -7-
      Plaintiff alleges that his equal-protection rights are being violated because

he is not treated the same as other prisoners. “[A]bsent an allegation of a suspect

classification, our review of prison officials’ differing treatment of various

inmates is quite deferential: in order to withstand an equal-protection challenge,

those classifications must be reasonably related to a legitimate penological

purpose.” Gwinn, 2004 WL 49840 at *15. Plaintiff’s treatment differs from that

of other inmates because he has refused to participate in the SATP. Prison

officials determined that Plaintiff (as opposed to some other prisoners) should

participate in the program because he had committed sex offenses. As we held in

Gwinn, a requirement that a sex offender participate in a treatment program bears

a rational relationship to rehabilitative objectives. Id. Accordingly, we reject

Plaintiff’s equal-protection claim.

      C.     Contentions (8), (11), and (12): Privilege Against Self-
             incrimination

      To the extent that Plaintiff continues to allege a violation of his Fifth

Amendment privilege against self-incrimination, we conclude that the district

court properly dismissed his claim. In McCune the Supreme Court held that the

Kansas SATP—the same program involved in this case—did not violate the

plaintiff’s right against self-incrimination. See McCune, 536 U.S. at 48-49

(O’Connor, J., concurring). The circumstances addressed in that case are virtually

identical to those faced by Plaintiff, with the only notable distinction being that

                                         -8-
Plaintiff, unlike the plaintiff in McCune, alleged that he had been denied good-

time credits (resulting in ineligibility for parole) as a result of his refusal to admit

guilt. See R. Doc. No. 5 at 3; McCune, 536 U.S. at 38 (“In the present case,

respondent’s decision not to participate in the Kansas SATP did not extend his

term of incarceration. Nor did his decision affect his eligibility for good-time

credits or parole.”). But any attempt by Plaintiff to distinguish his situation from

that involved in McKune on this basis must fail in light of our decision in Searcy

v. Simmons, 299 F.3d 1220, 1226-27 (10th Cir. 2002), which held that the

plaintiff’s privilege against self-incrimination was not violated even though his

refusal to make the admissions required for participation in a sexual-abuse-

treatment program caused him to lose good-time credits. Moreover, in Gwinn,

2004 WL at *13, in the course of rejecting a similar argument, we noted that

“parole decisions are . . . discretionary,” and held that Mr. Gwinn’s “choice

between the opportunity to earn [good-time] credits . . . and retain favorable

parole status or declining that opportunity by refusing to participate in the

treatment program . . . did not rise to a level where it [was] likely to compel a

person to be a witness against himself.” See also Payne v. Kan. Parole Bd., 887

P.2d 147, 151 (Kan. Ct. App. 1994) (“The [Kansas Parole Board] has sole

authority to grant or deny parole and is vested with broad discretion in how it




                                           -9-
determines if inmates will be paroled.”). Accordingly, we conclude that the

district court correctly dismissed Plaintiff’s Fifth Amendment claim.

      D.     Contention 9: Retroactive Application of IMPP 11-101

      Plaintiff’s crimes occurred on November 18, 1990. The incentive-level

system of which he complains was implemented by IMPP 11-101, which took

effect in 1996. See Vinson v. McKune, 960 P.2d 222, 223 (Kan. 1998). Plaintiff

consequently contends that the application of IMPP 11-101 to him amounts to a

violation of the Ex Post Facto Clause.

      The Kansas Supreme Court has considered this issue. It concluded that

although IMPP 11-101 “may affect the conditions upon which the inmate’s

sentence is served,” its provisions “do not increase punishment beyond what was

prescribed when the crime was consummated,” and therefore do not violate the Ex

Post Facto Clause. Vinson, 960 P.2d at 224-25. We agree. “[T]he ex post facto

prohibition . . . forbids the imposition of punishment more severe than the

punishment assigned by law when the act to be punished occurred.” Weaver v.

Graham, 450 U.S. 24, 30 (1981). The incentive-level system simply provides a

mechanism by which the Department of Corrections may effectively manage

prisoners. Its application to Plaintiff has not resulted in an increase in the penalty

for the offenses of which he was convicted. Plaintiff has therefore not stated a

claim for an ex post facto violation.


                                         -10-
      E.     Contention 15: District Court’s Refusal to Allow Plaintiff to
             Amend his Complaint

      Plaintiff asserts that the district court should have considered supplemental

issues that he raised in his response to the show-cause order. The court’s ruling

was correct, however, because the supplemental issues lacked merit. The sole

new issue raised was the claim that he was subjected to double jeopardy when the

Parole Board considered the serious nature of the crime of which he was

convicted. We disagree.

      “The Double Jeopardy Clause protects defendants against (1) a second

prosecution for the same offense after acquittal, (2) a second prosecution for the

same offense after conviction, and (3) multiple punishments for the same

offense.” Anderson v. Mullin, 327 F.3d 1148, 1153 (10th Cir. 2003) (internal

quotation marks omitted). “Because the denial of parole does not change the

length of a prisoner’s sentence, it is not the imposition of more than one

punishment for the same offense as prohibited by the double jeopardy clause.”

Mahn v. Gunter, 978 F.2d 599, 602, n.7 (10th Cir. 1992) (internal quotation marks

omitted); see also Kell v. United States Parole Comm’n, 26 F.3d 1016, 1020 (10th

Cir. 1994) (“Parole determinations are not viewed as criminal punishment subject

to the Double Jeopardy Clause.”) Plaintiff has consequently not been subjected to

double jeopardy. He has not been prosecuted a second time, and the Parole

Board’s decision to deny him parole does not constitute an additional punishment

                                        -11-
for the same offense. Therefore, Plaintiff’s response to the show-cause order

does not state a claim for a double jeopardy violation.

IV.   CONCLUSION

      WE AFFIRM the district court’s dismissal of Plaintiff’s claims.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




                                        -12-
