                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       February 27, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                          Clerk of Court

 ARTHUR BUNDY,

               Plaintiff-Appellant,                      No. 05-1099
          v.                                         District of Colorado
 JOE STOMMEL; JOSEPH ORTIZ;                         (D.C. No. 04-Z-2490)
 MICHAEL DUNLAP; BURL
 MCCULLAR; DWIGHT MARTINEZ,

               Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.



      Plaintiff Arthur Bundy, a state prisoner in Colorado, filed a pro se civil

rights complaint under 42 U.S.C. § 1983 alleging that prison officials violated his



      *
         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    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
right to due process under the Fourteenth Amendment to the United States

Constitution. The district court dismissed Mr. Bundy’s complaint as legally

frivolous under 28 U.S.C. § 1915A, and we REVERSE.

                                  I. Background

      Arthur Bundy was convicted of first-degree sexual assault in 1992 and

sentenced to 22 years in the Colorado Department of Corrections (DOC). As a

Colorado sex offender, he must participate in the Sex Offender Treatment and

Monitoring Program (SOTMP) in order to be considered for parole. Mr. Bundy

began his treatment in 1999. As part of the second phase of the SOTMP, Mr.

Bundy was required to sign a contract agreeing to take recommended psychotropic

medication.

      As part of his SOTMP treatment, Mr. Bundy saw a DOC psychiatrist and

was diagnosed as having obsessive-compulsive disorder with deviant fantasies.

The psychiatrist prescribed the medication Zoloft, which Mr. Bundy willingly

took with beneficial results. In June of 2002, Michael Dunlap, the SOTMP

program coordinator, required Mr. Bundy to begin taking Prozac instead of

Zoloft, a change to which Mr. Bundy objected. However, Mr. Bundy “submitted

to the administration of Prozac, for fear that his refusal to comply would result in

his termination” from the program, thus making him ineligible for parole. Aplt.

Br. 5. Mr. Bundy alleges that he suffered numerous negative side effects from



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Prozac, including migraine headaches, rashes, sleeplessness, paranoia, and

aggression, and that his later termination from SOTMP for aggressive behavior

was caused by the change in medication. After being terminated from SOTMP

and transferred to another facility, Mr. Bundy switched back to Zoloft and, he

claims, the negative side effects disappeared.

      Having exhausted his administrative remedies, Mr. Bundy filed suit in the

United States District Court for the District of Colorado, alleging that the

requirement of unwanted medication violated his right to due process, and seeking

damages from the relevant prison officials under 42 U.S.C. § 1983. Before the

defendants had been served with process or filed responsive pleadings, the district

court dismissed Mr. Bundy’s complaint as legally frivolous under 28 U.S.C. §

1915A. Mr. Bundy appeals.

                             II. Standard of Review

      Title 28 U.S.C. § 1915A, under which the district court dismissed Mr.

Bundy’s complaint, is a screening provision that applies to “all prison litigants . .

. who bring civil suits against a governmental entity, officer, or employee.” Plunk

v. Givens, 234 F.3d 1128, 1129 (10th Cir 2000). It requires the district court to

promptly review the complaint in such a suit and to dismiss it “if the complaint—

(1) is frivolous, malicious, or fails to state a claim upon which relief may be

granted; or (2) seeks monetary relief from a defendant who is immune from such



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relief.” 28 U.S.C. § 1915A(b). We use different standards of review for a

dismissal for frivolousness under § 1915 depending on whether the frivolousness

determination turns on a question of fact or of law. We review a dismissal based

on factual frivolousness for abuse of discretion; we review a dismissal based on

legal frivolousness de novo. Fogle v. Pierson, __ F.3d __ (10th Cir. 2006).

                                III. Analysis

                                         A.

      Mr. Bundy’s basic claim is that he should not have been forced to choose

between participation in SOTMP—which provided his only avenue for parole, and

in which he was required to take unwanted psychotropic medication—and his

desire to be free from being forced to take medication that he believes to be

medically inappropriate. Conditioning his eligibility for parole on his agreement

to take Prozac, he argues, violates his recognized and “significant liberty interest

in avoiding the unwanted administration of antipsychotic drugs.” Washington v.

Harper, 494 U.S. 210, 221 (1990).

      The district court construed his argument differently. It said that

      Mr. Bundy clearly is trying to blame his reclassification and transfer
      as a result of his behavioral problems on being required to accept
      recommended medications as a condition of phase two participation.
      Apparently, he maintains that signing the contract concerning the
      acceptance of medications as a condition of phase two participation,
      which required him to have to switch from Zoloft to Prozac, resulted
      in the behavior problems that led to his reclassification and
      placement. The Court is not persuaded by Mr. Bundy’s logic.

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Order at 4. Having concluded that Mr. Bundy was blaming his reclassification

and transfer on the unwanted medication, the district court proceeded to evaluate

whether Mr. Bundy had a liberty interest in his classification or placement. Not

surprisingly, the district concluded that Mr. Bundy had no such interest and

dismissed his claim as frivolous.

      This analysis does not address Mr. Bundy’s argument at its strongest: that

conditioning eligibility for parole on signing an agreement to take what he

considers medically inappropriate medication violates Mr. Bundy’s liberty interest

in being free from unwanted medication. Our question is whether this claim is

legally frivolous, i.e., whether it “lacks an arguable basis . . . in law.” Denton v.

Hernandez, 504 U.S. 25, 31 (1992). We conclude that it does not.

      The Supreme Court has recognized a “significant liberty interest in

avoiding the unwanted administration of antipsychotic drugs under the Due

Process Clause of the Fourteenth Amendment.” Washington v. Harper, 494 U.S.

at 221-22. Harper and this case do differ on a significant point. In both cases

there was unwanted administration of antipsychotic drugs, but in Harper it was

forced on the defendant and in this case the defendant was given an ostensible

choice between the drugs and eligibility for parole. We have not considered such

a case, but the Seventh Circuit considered a similar one in Felce v. Fiedler, 974

F.2d 1484 (7th Cir. 1992). There, the defendant claimed that the state could not



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condition his mandatory parole on an agreement to take unwanted antipsychotic

drugs “unless antipsychotic drugs are medically necessary and a hearing or some

type of fair procedure is used to determine that necessity.” Id. at 1488. The

district court concluded that the plaintiff lacked a liberty interest because he “has

a choice. He may refuse to take the drugs and decide instead to return to prison.”

Id. at 1487. The Seventh Circuit reversed. It concluded that the plaintiff had a

liberty interest in “being free from the involuntary use of [antipsychotic] drugs,”

id. at 1494, and that therefore the state was required to use “an independent

decision-maker in deciding which parolees are proper candidates for antipsychotic

drug treatment.” Id. at 1500. In Mr. Bundy’s case, the state of Colorado has

made the taking of unwanted antipsychotic drugs a condition only for parole

eligibility. Denying a prisoner eligibility for parole because he refuses to take

unwanted antipsychotic drugs, with full notice of the consequences of refusing,

might be less troublesome than revoking parole for the same refusal. But such a

difference would not be so great that it makes Mr. Bundy’s argument legally

frivolous.

      Mr. Bundy’s argument also finds support in United States v. Williams, 356

F.3d 1045 (9th Cir. 2004). There, the plaintiff challenged the district court’s

decision to sentence him to three years of supervised release and, as a condition

of that release, to require him to take “such psychotropic and other medications



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prescribed for him by physicians treating his mental illness.” Id. at 1047. The

Ninth Circuit reversed the sentence, holding that, because of the plaintiff’s

“strong constitutionally-based liberty interest in avoiding unwanted antipsychotic

medication,” id. at 1055-56, the district court was required to “make on-the-

record, medically-grounded findings that court-ordered medication is necessary”

before imposing mandatory medication as a condition of supervised release. Id. at

1057. Again, this case differs from Mr. Bundy’s because making unwanted

medication a condition for supervised release might be a greater imposition than

making it a condition for parole eligibility. Even so, this difference does not

make Mr. Bundy’s argument legally frivolous.

      We do not decide whether the government violates the Due Process Clause

of the Fourteenth Amendment when it forces an inmate to choose between taking

unwanted antipsychotic drugs and eligibility for parole. Upon due consideration,

the district court and this Court may find Felce and Williams distinguishable, or

may not adopt the reasoning of those decisions for this Circuit. But given Mr.

Bundy’s constitutionally protected liberty interest and the holdings of other courts

of appeals, we cannot treat such an argument as frivolous.

                                         B.

      Mr. Bundy also argues that the deliberate indifference of individual

officials operating under the Colorado prison regulation rose to the level of



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“conscience-shocking” and therefore violated the “substantive component of the

Due Process Clause.” We cannot tell whether this is a different claim, or merely

a different form of words for the same claim. There is not much difference

between Mr. Bundy’s allegation the Defendants violated his “liberty interest in

avoiding the unwanted administration of psychotropic medication,” R. 3 at 4.17,

and his allegation that “Defendants Martinez and McCullar acted with deliberate

indifference with respect to [this] liberty interest,” id. at 4.18. Given the

requirement that we construe a pro se complaint liberally, however, we remand

this claim to the district court, along with the first, to give the Plaintiff an

opportunity to develop it, if indeed it is a separate claim. The Plaintiff should

bear in mind the principle that a substantive due process claim is unavailable

when the plaintiff could bring the same claim under an “explicit textual source of

constitutional protection.” Graham v. Connor, 490 U.S. 386, 395 (1989). See

County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998); Dubbs v. Head Start,

Inc., 336 F.3d 1194, 1203 (10th Cir. 2003). That principle may apply also to

generalized “shocks the conscience” substantive due process claims that duplicate

more specific claims of violation of established fundamental rights. Because the

district court did not treat this claim separately, however, we remand it for further

consideration.




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                                IV. Conclusion

      We REVERSE the judgment of the United States District Court for the

District of Colorado and REMAND for further proceedings not inconsistent with

this opinion. Appellant’s motion to proceed without prepayment of the appellate

filing fee is GRANTED. The Appellant is reminded to continue making any



remaining partial payments towards the balance of his assessed fees and costs

until they are paid in full.

                                             Entered for the Court,

                                             Michael W. McConnell
                                             Circuit Judge




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