                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          AUG 29 2002
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    MARVIN W. JOHNSTON,

                Plaintiff - Appellant,

    v.                                                   No. 99-3193
                                                 (D.C. No. 97-CV-3354-KHV)
    CHARLES SIMMONS, Secretary of                        (D. Kansas)
    Corrections, and DAVID MCKUNE,

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before TACHA , Chief Judge, ANDERSON and LUCERO , 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      This order and judgment is not binding precedent, except under the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.
        Appellant Marvin Johnston, a state prisoner appearing pro se, appealed

from summary judgment granted in favor of defendants on his suit brought

pursuant to 42 U.S.C. § 1983. Mr. Johnston claimed that, by taking away his

privileges and otherwise penalizing him for refusal to participate in the Kansas

sexual abuse treatment program (SATP), defendants (1) violated the prohibition

on ex post facto laws contained in the United States Constitution, art. I, § 9, cl. 3;

(2) improperly penalized him for exercising his right to freedom of speech under

the First Amendment; (3) violated his Fifth Amendment due process rights by

infringing on a liberty interest; (4) violated his Fifth Amendment right against

self-incrimination; and (5) denied him due process under the Fourteenth

Amendment. See R. Doc. 25, at 3-4a. He sought declaratory and injunctive relief

prohibiting recommendation of rehabilitative programs (and the penalties imposed

by his refusal to participate) unless he voluntarily requested the program.     See id.

at 5.

        On October 31, 2000, we entered an order reversing in part, vacating in part,

and remanding in part Mr. Johnston’s suit.         Johnston v. Simmons , No. 99-3193,

2000 WL 1629971 (10th Cir. Oct. 31, 2000) (unpublished). Our decision was

based on the holding of   Lile v. McKune , 224 F.3d 1175 (10th Cir. 2000) (holding

that the Kansas SATP violates the Fifth Amendment rights of inmates who are not

granted immunity or otherwise guaranteed confidentiality for disclosing prior sex


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crimes), rev’d , McKune v. Lile , 536 U.S.__, 122 S. Ct. 2017 (2002). Appellees

appealed to the United States Supreme Court, and upon appellees’ request, we

stayed the mandate.

       After reversing our decision in    Lile , the Supreme Court of the United States

entered a judgment on June 17, 2002, vacating our judgment in this case and

remanding the cause for further consideration in light of its opinion in    McKune .

Simmons v. Johnston , No. 00-1231, 122 S. Ct. 2583 (2002). As a result of this

judgment, on August 7, 2002, we vacated our prior judgment. We have vacated

our opinion in Lile and recently remanded the case to the district court with

directions to dismiss the complaint in its entirety, concluding that Mr. Lile’s

claims brought pursuant to the Fourth and Fifth Amendments do not rise to the

level of compulsion contemplated by the plurality opinion as expressed by Justice

O’Connor. Lile v. McKune , __ F.3d __, __ (10th Cir. 2002);        see McKune ,

122 S. Ct. at 2032-35.

       Upon further review of Mr. Johnston’s Fifth Amendment self-incrimination

claim, we conclude that the identity of material facts between Mr. Johnston’s and

Mr. Lile’s circumstances requires us to conclude that the penalties complained of

likewise do not rise to the level of compulsion contemplated in       McKune . We

therefore affirm the dismissal of those claims.




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       We did not reach Mr. Johnston’s remaining issues in our previous decision.

Mr. Johnston argues that the district court abused its discretion in not ordering

further discovery before it ruled on his due process and       ex post facto claims, and

continues to argue that punishing him for saying “no” to participation in the SATP

program violates his First Amendment right to freedom of speech. Upon review of

Mr. Johnston’s brief, the district court’s orders, and the record on appeal, we find

no reversible error and affirm for substantially the same reasons set forth by the

district court.

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

is AFFIRMED. The mandate shall issue forthwith.


                                                           Entered for the Court



                                                           Stephen H. Anderson
                                                           Circuit Judge




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