                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          NOV 14 2001

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 ARTHUR JAMES MOORE,

          Plaintiff-Appellant,
                                                       No. 00-1510
 v.
                                                   (D.C. No. 00-Z-1650)
                                                        (Colorado)
 WARDEN ATHERTON and MAJOR
 REED, Program Manager,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.


      Arthur James Moore, a prisoner in the Colorado State Prison (CSP), filed

this suit pro se under 42 U.S.C. § 1983 against CSP officials alleging various

constitutional violations and seeking money damages and injunctive relief. The


      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
district court dismissed all his claims as legally frivolous pursuant to 28 U.S.C.

section 1915A(b)(1). Mr. Moore appeals and we affirm.

      This court construes pro se complaints liberally. See Hunt v. Uphoff, 199

F.3d 1220, 1223 (10th Cir. 1999); Haines v. Kerner, 404 U.S. 519, 520-21 (1972)

(per curiam). We extend this liberal construction principle to pro se appellate

filing as well. See Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998), cert.

denied, 526 U.S. 1052 (1999). While this court has not yet determined whether a

dismissal pursuant to § 1915A on the ground that the complaint is legally

frivolous is reviewed de novo or for an abuse of discretion, Plunk v. Givens, 234

F.3d 1128, 1130 (10th Cir. 2000), our result would be the same under either

standard. We present the facts of the case only as they are relevant to individual

claims, discussed below.

      First, as part of an inmate’s incarceration, the CSP expects participation in

a “life skills” program. Once in the program, inmates are expected to discuss the

crimes they committed and for which they are serving time. The “participation

agreement,” signed by Mr. Moore, states that prisoners agree to answer every

question posed to them. For reasons unstated in his complaint, Mr. Moore chose

not to answer questions related to his past crimes and was thus placed on

restricted privileges. This included the removal of a television set from his cell.

Mr. Moore claims that this discipline violated his Fifth Amendment guarantee


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against double jeopardy. 1

      According to the Fifth Amendment, no person shall be “subject for the

same offense to be twice put in jeopardy of life or limb.” U.S. C ONST . amend. V.

The double jeopardy clause has been interpreted to prohibit prosecution for the

same offense after acquittal, prosecution for the same offense after a conviction,

and multiple punishments for the same offense. See North Carolina v. Pearce,

395 U.S. 711, 717 (1969), overruled on other grounds, Alabama v. Smith, 490

U.S. 794 (1989). Mr. Moore’s complaint appears to make the argument that

placing him on restricted privileges for refusing to discuss his crime in the life

skills class constitutes a multiple punishment as discussed in Pearce. However,

subsequent decisions have clarified that jeopardy attaches only to proceedings

which are “essentially criminal” in nature. Breed v. Jones, 421 U.S. 519, 528

(1975). “Prison disciplinary hearings are not part of a criminal prosecution, and

therefore do not implicate double jeopardy concerns.” Lucero v. Gunter, 17 F.3d

1347, 1350 (10th Cir. 1994) (citation omitted). The disciplinary process

instituted here falls into the same category. Mr. Moore’s claims on this question

are therefore without merit.




      1
       Mr. Moore subsequently participated in the life skills program and
successfully completed it.

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      Mr. Moore also vaguely asserts that requiring him to answer questions

about the crimes he committed violated his Fifth Amendment right not to

incriminate himself. Even assuming Mr. Moore could somehow be incriminated

by discussing his past crimes, see Lile v. McCune, 224 F.3d 1175, 1179 (10th Cir.

2000), cert. granted, 121 S. Ct. 1955 (2001), we are not persuaded the loss of a

personal television set amounts to the degree of punishment required to establish

compulsion under the Fifth Amendment, see id. at 1180-82, 1185-87.

      Second, Mr. Moore complains that his rights have been violated because

the prison chaplain prays with inmates at their cell doors instead of in a private

room. Because he is trying to become a Muslim and does not wish to hear these

prayers, he argues that being forced to hear them infringes on his rights.

Construed liberally, his complaint appears to raise a free exercise claim under the

First Amendment. 2 In analyzing a free exercise claim we first determine whether

government action creates a burden on the exercise of a person’s religion. "(I)t is

necessary in a free exercise case to show the coercive effect of the enactment as it

operates against . . . the practice of (their) religion." Badoni v. Higginson, 638

F.2d 172, 176 (10th Cir. 1980) (quoting School Dist. of Abington v. Schempp, 374

U.S. 203 (1963)), cert. denied, 452 U.S. 954 (1981). In this case, Mr. Moore has



      2
         Even liberally construed, Mr. Moore does not make a cognizable
establishment clause First Amendment claim.

                                         -4-
not made any argument as to how hearing Christian prayers burdens his own

exercise of his religious beliefs. As to this issue, his complaint fails to state a

cognizable claim.

       Third, Mr. Moore complains that his privacy rights have been violated

because female prison staff are allowed to see him in his cell while he is using the

toilet. Circuit precedent recognizes that prisoners retain a limited constitutional

right to bodily privacy, “particularly as to searches viewed or conducted by

members of the opposite sex.” Hayes v. Marriott, 70 F.3d 1144, 1146 (10th Cir.

1995). According to our decision in Hayes, the frequency with which prison

guards watch inmates of the opposite sex undressing, using toilet facilities, and

showering “is an important factor in assessing the constitutionality of prison

practices.” Id. at 1147 (citing Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir.

1982) (per curiam)). Mr. Moore has not provided us with the factual assertions

needed to assess this factor, however, and we must therefore dismiss his

contention for failure to state a claim. 3

       Finally, Mr. Moore alleges that his rights were violated because prison

officials did not notify prisoners of a change in standard drug testing procedure



       3
        We agree with the district court in its further holding that the claim fails
because it does not assert a connection between the named defendants and the
alleged violation of rights, an essential allegation in a civil rights case. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976).

                                             -5-
when they switched from a urine-sample based test to a drug “patch” test. When

he refused to comply with the new test, Mr. Moore was sanctioned. Even

liberally construed, it is not clear from Mr. Moore’s complaint what constitutional

right he alleges was violated. This claim, too, was properly dismissed.

      We AFFIRM the judgment of the district court.

                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Circuit Judge




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