                                                                             F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                             NOV 12 2004
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 STAN SZCZYGIEL,

                  Plaintiff/Appellant,                     No. 04-3138
           v.                                           District of Kansas
 NIC MADELEN, in his official                       (D.C. No. 00-3489-GTV)
 capacity as employee of Charles
 Simmons, Secretary of Corrections;
 CHARLES SIMMONS, in his
 official capacity as Kansas Secretary
 of Corrections; BRIDGETTE
 BROUILLETTE; DCCCA INC.,

                  Defendants/Appellees.


                              ORDER AND JUDGMENT           *




Before EBEL , MURPHY , and McCONNELL , Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This 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       This order and judgment is not binding precedent, except under the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, 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.
      Stan Szczygiel, a pro se prisoner, appeals the district court’s grant of

summary judgment in favor of Defendants. The essence of Mr. Szczygiel’s

claims is that the Kansas Department of Corrections (“KDOC”) and the Kansas

Parole Board (“Board”) deprived him of his constitutional rights and imposed an

ex post facto punishment upon him by requiring him to complete a sexual abuse

treatment program (“SATP”) as a condition of his parole. Because we agree with

the district court that Mr. Szczygiel has not presented a “genuine issue as to any

material fact” regarding the alleged constitutional violations, Fed. R. Civ. P.

56(c), we AFFIRM.

                                   I. Background

      Mr. Szczygiel’s relationship with the KDOC began more than two decades

ago. On March 28, 1980, he was charged with rape, burglary, and aggravated

kidnapping. Nearly a year later, he reached a plea bargain whereby he pled guilty

to kidnapping in exchange for prosecutors dropping the rape and burglary

charges. On May 22, 1981, Mr. Szczygiel was sentenced to “not less than 5 years

to life” on the kidnapping charge. State Appellees’ Br. at 3.

      Mr. Szczygiel was first paroled on December 7, 1999. His parole

conditions required him to participate in the SATP and refrain from ingesting

liquor or other intoxicating substances without written permission from his parole

officer. During a polygraph examination on August 22, 2000, Mr. Szczygiel


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admitted that he consumed alcohol on several occasions without permission. On

August 30, 2000, he was advised of his rights to a preliminary hearing and signed

a checklist advising him of his rights. Mr. Szczygiel’s parole was revoked on

October 3, 2000, for consuming alcohol in violation of his parole conditions.

      Following two months of incarceration, Mr. Szczygiel was again paroled on

December 4, 2000. But on February 28, 2001, he was charged in a parole

violation report with having used cannabis. When he admitted in a June 6, 2001,

parole revocation hearing that he used cannabis, his parole was again revoked.

      Mr. Szczygiel was last paroled on October 30, 2001. He was required to

keep his parole officer advised of his residence and secure permission to travel

outside his parole district. He also agreed to participate in SATP as a condition

of release. Twelve months later, the KDOC issued an arrest warrant for Mr.

Szczygiel. He was arrested on November 22, 2002, in Ocala, Florida. Mr.

Szczygiel’s parole was revoked on January 6, 2003, after he admitted in his

revocation hearing that he had absconded from parole supervision.

                                     II. Analysis

      As a preliminary matter, we note that “[p]arole, like probation, is a matter

of grace in [Kansas]. It is granted as a privilege and not as a matter of

fundamental right.” Gilmore v. Kan. Parole Bd. , 756 P.2d 410, 415 (Kan. 1988).

Accordingly, Kan. Stat. Ann. § 22-3717 “does not create a liberty interest in


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parole.” Id. Additionally, the United States Supreme Court has determined that a

requirement of participation in the Kansas SATP, which requires prisoners to

disclose and accept responsibility for past sexual misconduct, does not “constitute

compulsion for the purposes of the Fifth Amendment privilege against self-

incrimination.”   McKune v. Lile , 536 U.S. 24, 49 (2002) (O’Connor, J.,

concurring).

       Mr. Szczygiel first asserts he should not have to complete the SATP as a

condition of parole because he is not a sex offender. He claims the district court

incorrectly relied on his    Martinez report 1 and Chambers v. Colo. Dep’t of Corr.   ,

205 F.3d 1237 (10th Cir. 2000), when granting summary judgment for Defendants

on this claim.

       The district court rejected Mr. Szczygiel’s contention that he should not be

required to complete the SATP because he pled guilty only to kidnapping. It

noted that “[t]he background of the criminal conduct is sufficient to establish

sexual misconduct, and ‘in rehabilitative matters, prison officials may consider

any history established in the inmate’s record which it may determine requires

treatment.’” Op. at 6,      quoting Chambers , 205 F.3d at 1242 (footnote omitted).



       1
        A Martinez report is a “court authorized report and investigation by prison
officials to determine whether a pro se prisoner’s allegations have any factual or
legal basis.” Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992), citing
Martinez v. Aaron, 570 F.2d 317, 318–19 (10th Cir. 1978).

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This “background” consists of a statement Mr. Szczygiel made upon his

admission into the KDOC’s Reception and Diagnostic Center in 1981 that was

included in his Martinez report. See Appellee DCCCA, Inc.’s Br. at 4. At that

time, Mr. Szczygiel described what happened after he broke into his girlfriend’s

house in 1980 following her decision to break up with him:

      I took some LSD and drank heavily and was pretty drunk when she
      came home. When she walked in I hit her and dropped her to the
      floor. I have a brown belt in karate. I did a physical exam on her
      head. There was no damage. She was frightened because it was the
      first time I had ever been hostile toward her. I asked her why the
      change in plans. I decided I was going to kill her and myself. I was
      confused and upset. I said we were going to my dad’s. We went to
      my dad’s house. I told her I would kill her and myself. . . . She
      started to calm me down. She said we’d get back together and get
      married. I believed her after an hour or so and we made love.

Id. at 4–5.

      “On summary judgment, a     Martinez report is treated like an affidavit, and

the court is not authorized to accept its fact findings if the prisoner has presented

conflicting evidence.”   Northington v. Jackson , 973 F.2d 1518, 1521 (10th Cir.

1992). Here, Mr. Szczygiel has not presented any relevant evidence that conflicts

with his own admission of sexual misconduct. Moreover,       Chambers expressly

permits KDOC officials to consider Mr. Szczygiel’s record when determining

appropriate rehabilitative requirements in conjunction with his parole. 205 F.3d

at 1242. Thus, Mr. Szczygiel’s first claim is ineffectual.



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       We also find no merit in Mr. Szczygiel’s second claim, that the district

court erred by applying     Gilmore . Mr. Szczygiel focuses on the court’s statement

in Gilmore that “the Board’s action in       revoking parole involves a liberty interest,”

756 P.2d at 415, citing Morrissey v. Brewer , 408 U.S. 471, 481–82 (1972), and

claims this liberty interest should have prevented the KDOC from making

completion of SATP a condition of his parole.

       Mr. Szczygiel fails to realize that     Morrissey , the case cited in Gilmore , was

concerned with what, if any, process was due to a parolee before his parole may

be revoked. See 408 U.S. at 482 (“[A parolee’s] liberty is valuable and must be

seen as within the protection of the Fourteenth Amendment.          Its termination calls

for some orderly process,     however informal.” (emphasis added)). Therefore,

neither Morrissey nor Gilmore undermines Kansas’s ability to impose parole

conditions such as the SATP.       Cf. Morrissey , 408 U.S. at 480 (noting parole

revocation “deprives an individual, not of the absolute liberty to which every

citizen is entitled, but only of the conditional liberty   properly dependent on

observance of special parole restrictions      ” (emphasis added)). In addition, as

discussed above, Mr. Szczygiel’s parole has been revoked three times, but never

for his failure to complete or attend SATP. He lost his parole because he ingested

alcohol and marijuana and because he left Kansas for Florida without permission.




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Because the SATP condition was never a basis for his loss of freedom, Mr.

Szczygiel’s reliance on this statement from          Gilmore is misplaced.

       Mr. Szczygiel’s third claim is that the district court “committed reversible

error when it held appellant[’]s participation in the Sex Offender Treatment

Program was voluntary.” Appellant’s Br. at 26. This allegedly clear error stems

from the district court’s application of     Sandin v. Connor , 515 U.S. 472 (1995), to

his Fifth Amendment compulsion claims.           Id. at 28. He asserts the district court

should have applied Lile , where the Supreme Court stated “the central question

becomes whether the State’s program, and the consequences for nonparticipation

in it, combine to create a compulsion that encumbers the constitutional right.”

536 U.S. at 35.

       As an initial matter, the district court’s order cites    Sandin only in the

context of discussing Lile’s holding. See Op. at 4–5. Since the district court did

not apply Sandin but in fact relied on Justice O’Connor’s concurrence in         Lile to

reach its holding, see Op. at 5–6, Mr. Szczgiel’s allegation of error cannot be

sustained on this ground.

       More importantly, Mr. Szczgiel fundamentally misunderstands            Gilmore .

The Kansas Supreme Court clearly stated that Kansas’s parole statute “does not

create a liberty interest in parole” because parole “is granted as a privilege and

not as a matter of fundamental right.”       Gilmore , 756 P.2d at 415. Thus, even if


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we applied the standard from    Lile that Mr. Szczygiel suggests, the “consequences

for nonparticipation in [the SATP]”—loss of his parole—cannot “create a

compulsion that encumbers [his] constitutional right” to parole because     Gilmore

makes clear no such constitutional right exists. We therefore decline to disturb

the district court’s ruling on this issue.

       Finally, Mr. Szczygiel alleges the district court committed reversible error

when it held the SATP did not violate the Constitution’s ban on ex post facto

laws. See U.S. Const. art. 1, § 10, ¶ 1. The Ex Post Facto Clause is “aimed at

laws that retroactively alter the definition of crimes or increase the punishment

for criminal acts.”   Henderson v. Scott , 260 F.3d 1213, 1215 (10th Cir. 2001),

quoting Cal. Dep’t of Corr. v. Morales , 514 U.S. 499, 504 (1995). “The Supreme

Court has rejected the argument ‘that the Ex Post Facto Clause forbids any

legislative change that has any conceivable risk of affecting a prisoner’s

punishment.’”    Id. , quoting Morales , 514 U.S. at 508. Thus, while “[r]ectroactive

changes in laws governing parole of prisoners, in some instances, may be

violative of the prohibition against ex post facto laws, . . . the controlling inquiry

is not whether the law is retroactive, but ‘whether it produces a sufficient risk of

increasing the measure of punishment attached to the covered crimes.’”       Id. at

1216, quoting Morales , 514 U.S. at 509 (some internal quotation marks and

citation omitted). When a law “does not by its own terms show a significant risk”


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of increased punishment, a prisoner “must demonstrate, by evidence drawn from

the rule’s practical implementation . . . , that its retroactive application will result

in a longer period of incarceration than under the earlier rule.”      Id. , quoting

Garner v. Jones , 529 U.S. 244, 255 (2000).

       A plurality of the Supreme Court has already determined that Kansas’s

SATP is used to rehabilitate prisoners, not punish them.        Lile , 536 U.S. at 47–48.

This suggests that the SATP does not facially increase punishment for any past

crime. Moreover, Mr. Szczygiel has not presented evidence that applying the

SATP to him will result in a longer period of incarceration. He has been

sentenced to “up to life in prison.” Even if he is paroled, he will remain under

State supervision for the rest of his life; if he breaks a condition of parole, he will

be returned to prison. Because he is serving up to a life sentence, Mr. Szczygiel

cannot show he will be incarcerated for a longer period of time because of the

SATP than without it. Therefore, this claim has no merit.

       The judgment of the United States District Court for the District of Kansas

is AFFIRMED . Appellant’s motion to correct the record is granted. Appellant’s

motion for leave to proceed on appeal without prepayment of costs and fees is

granted. Appellant is reminded that he remains obligated to make partial fee




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payments until the balance of the filing fee is paid in full.



                                                 Entered for the Court,

                                                 Michael W. McConnell
                                                 Circuit Judge




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