                                 ___________

                                 No. 95-3862
                                 ___________

Patrick T. McMorrow, Jr.,            *
                                     *
          Plaintiff - Appellee,      *
                                     *
     v.                              *
                                     *
Elaine Little, individually,         *
and as Director of the               *
Department of Corrections and        *
Rehabilitation; Timothy              *
Schuetzle, individually, and         *
as Warden of the North Dakota        *
State Penitentiary; Daniel           *
Wrolstad, individually, and as       *
Acting Programs Director of          *
the North Dakota State               *
Penitentiary; Diana Welk,            *
individually, and as Counselor       *
at the North Dakota State            *
Penitentiary; Glenn Otto,            *
individually, and as Human           *   Appeal from the United States
Service Program Administrator        *   District Court for the
of the North Dakota State            *   District of North Dakota.
Penitentiary;                        *
                                     *
       Defendants - Appellants,      *
                                     *
Ernest Reinert, individually,        *
and as Parole Coordinator at         *
the North Dakota State               *
Penitentiary;                        *
                                     *
                    Defendants,      *
                                     *
Beverly Bergson, individually,       *
and as Counselor at the North        *
Dakota State Penitentiary; Mary      *
Dasovich, individually, and in       *
her official capacity;               *
                                     *
       Defendants - Appellants,    *
                                   *
Warren G. Allen, individually,     *
and as Members of the North        *
Dakota Parole Board; Henry         *
Gayton, Jr., individually, and     *
as Members of the North Dakota     *
Parole Board; Sherry Mills         *
Moore, individually, and as        *
Members of the North Dakota        *
Parole Board,                      *
                                   *
                    Defendants.    *


     Appellee’s Petition for Rehearing has been considered by the court

and is granted.   The opinion and judgment entered January 8, 1997, are

vacated.



                                   March 17, 1997




Order entered at the direction of the Court:



Clerk, U.S. Court of Appeals, Eighth Circuit.




                                  -2-
                                 ___________

                                 No. 95-3862
                                 ___________

Patrick T. McMorrow, Jr.,            *
                                     *
          Plaintiff - Appellee,      *
                                     *
     v.                              *
                                     *
Elaine Little, individually,         *
and as Director of the               *
Department of Corrections and        *
Rehabilitation; Timothy              *
Schuetzle, individually, and         *
as Warden of the North Dakota        *
State Penitentiary; Daniel           *
Wrolstad, individually, and as       *
Acting Programs Director of          *
the North Dakota State               *
Penitentiary; Diana Welk,            *
individually, and as Counselor       *
at the North Dakota State            *
Penitentiary; Glenn Otto,            *
individually, and as Human           *    Appeal from the United States
Service Program Administrator        *    District Court for the
of the North Dakota State            *    District of North Dakota.
Penitentiary;                        *
                                     *
       Defendants - Appellants,      *
                                     *
Ernest Reinert, individually,        *
and as Parole Coordinator at         *
the North Dakota State               *
Penitentiary;                        *
                                     *
                    Defendants,      *
                                     *
Beverly Bergson, individually,       *
and as Counselor at the North        *
Dakota State Penitentiary; Mary      *
Dasovich, individually, and in       *
her official capacity;               *
                                     *




                                    -1-
         Defendants - Appellants,       *
                                        *
Warren G. Allen, individually,          *
and as Members of the North             *
Dakota Parole Board; Henry              *
Gayton, Jr., individually, and          *
as Members of the North Dakota          *
Parole Board; Sherry Mills              *
Moore, individually, and as             *
Members of the North Dakota             *
Parole Board,                           *
                                        *
                     Defendants.        *

                                  ___________

                     Submitted:     July 12, 1996

                         Filed:   March 17, 1997
                                  ___________

Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

                                  ___________

JOHN R. GIBSON, Circuit Judge.

     Elaine Little, individually, and as Director of the Department of
Corrections and Rehabilitation of North Dakota, and other officials of the
North Dakota penitentiary system1 appeal from an order of the district
court denying their motion to dismiss, on the basis of qualified immunity,
Patrick McMorrow's 42 U.S.C. § 1983          claim against them.   The officials
withheld parole, work release, and less restrictive confinement from
McMorrow while he was




     1
      Timothy Schuetzle, individually, and as Warden of the North
Dakota State Penitentiary; Daniel Wrolstad, individually, and as
Acting Programs Director of the North Dakota State Penitentiary;
Diana Welk, individually, and as Counselor at the North Dakota
State Penitentiary; Glenn Otto, individually, and as Human Service
Program Administrator of the North Dakota State Penitentiary;
Beverly Bergson, individually, and as Counselor at the North Dakota
State Penitentiary; Mary Dasovich, individually, and in her
official capacity.

                                       -2-
imprisoned in North Dakota because he refused to admit to his crime.
McMorrow claims that the officials' denial of benefits violated his Fifth
Amendment and Fourteenth Amendment right against self-incrimination, and
the district court denied the officials' motion to dismiss on that ground.
On appeal the officials argue that the law was not clearly established,
that they are entitled to qualified immunity on this claim, and that
McMorrow's claim must be dismissed.       We reverse and remand for further
consideration of those issues not before us on this appeal.


     McMorrow was charged with gross sexual imposition for raping a woman.
A jury found McMorrow guilty.    As a part of McMorrow's sentence, he was
required to attend the Sexual Offender Treatment Program at the North
Dakota State Penitentiary.   Before McMorrow could attend the program he had
to admit that he committed the crime for which he was convicted.


     McMorrow refused to admit that he committed the crime for which he
was convicted.   Because of his refusal, the officials denied McMorrow
access to the sex offender program and eligibility for parole, work
release, and less restrictive confinement.      McMorrow brought this action
under Section 1983 claiming that the sex offender program violated his
Fifth and Fourteenth Amendment rights against self-incrimination, and
sought both injunctive relief as well as damages.      He also made a claim
under the Eighth Amendment about the ignoring of his medical conditions,
the district court denied summary judgment as to some of these issues, and
these issues are not now before us.
     The officials filed a motion under Federal Rule of Civil Procedure
12(b)(6) to dismiss McMorrow's complaint.       They argued that McMorrow's
complaint failed to state a claim upon which relief could be granted
because of their qualified immunity.      The




                                    -3-
magistrate judge concluded in his report and recommendation that McMorrow
had stated a claim that the officials' qualified immunity did not defeat.
The magistrate judge determined that it was clearly established that it was
a violation of McMorrow's constitutional right against self-incrimination
to require him to admit his crime before allowing him to attend the sex
offender program.   The district court agreed with the magistrate judge's
conclusions and adopted his report and recommendation.          The officials
appeal from the denial of their motion to dismiss McMorrow's claim.


     The officials argue that McMorrow's claim should be dismissed as they
are entitled to qualified immunity, because the constitutional right that
McMorrow claims they violated was not clearly established.
     We review de novo the district court's denial of the officials' Rule
12(b)(6) motion to dismiss McMorrow's complaint.         See Frey v. City of
Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995).       We must review McMorrow's
complaint most favorably to McMorrow and may dismiss the complaint only if
it is clear that no relief can be granted under any set of facts that could
be proven consistent with the complaint.   See id.    The officials' qualified
immunity will bar relief to McMorrow unless his complaint states facts
showing that the officials violated one of his constitutional rights and
that the right was clearly established when the officials violated it.     See
Weaver v. Clarke, 45 F.3d 1253, 1255 (8th Cir. 1995).     For a constitutional
right to be clearly established, the contours of that right must be
sufficiently clear and specific that a reasonable official would understand
that what he is doing violates that right.   See Anderson v. Creighton, 483
U.S. 635, 640 (1987).


     McMorrow's complaint states that the officials withheld




                                   -4-
certain benefits from him because he refused to admit committing the crime
for which he had been convicted.     Consistent with this statement, McMorrow
may be able to prove two different sets of facts, each showing a different
potential violation of his constitutional right against self-incrimination
by the officials.    Under each alternative, we accept that McMorrow refused
to admit his guilt for the crime for which he was convicted and that the
officials withheld benefits from him because of this refusal.


     Accepting these facts, the first alternative assumes that McMorrow
did not invoke his privilege against self-incrimination when he refused to
admit his guilt and that his admission would not incriminate him for a
crime other than the one for which he had already been convicted.             McMorrow
argues that a convicted defendant's constitutional right against self-
incrimination prevents state officials from making benefits conditional on
the defendant's admission of guilt.       We will assume without deciding that
McMorrow is correct and that these facts constitute a violation of his
right against self-incrimination.


     Assuming this violation of McMorrow's constitutional right, the
officials are entitled to qualified immunity because it was not clearly
established that their conduct was unconstitutional.                At the time the
officials withheld benefits from McMorrow, no court with jurisdiction over
North Dakota had held that such conduct was a violation of a convicted
defendant's constitutional right against self-incrimination.             Other courts
outside of North Dakota, however, had ruled on this issue at the time of
the officials' conduct with mixed results.
     Some   courts   have   held   that   it   is   a   violation   of   a   convicted
defendant's constitutional right against self-incrimination to               increase
his punishment or withhold a benefit because the defendant




                                      -5-
refuses to admit to the crime for which he has been convicted.        See State
v. Imlay, 813 P.2d 979, 983-85 (Mont. 1991), cert. granted, 503 U.S. 905,
and cert. dismissed as improvidently granted, 506 U.S. 5 (1992); United
States v. Wright, 533 F.2d 214, 216-17 (5th Cir. 1976) (per curiam); United
States v. Laca, 499 F.2d 922, 927-28 (5th Cir. 1974).            Other courts,
however, have held that such conduct is not a constitutional violation.
See State v. Gleason, 576 A.2d 1246, 1250-51 (Vt. 1990); Gollaher v. United
States, 419 F.2d 520, 530-31 (9th Cir.), cert. denied, 396 U.S. 960 (1969).
Because there is no applicable North Dakota precedent and a split in the
decisions by other courts, we cannot conclude that the law was well
established and we hold that the constitutional right that McMorrow claims
the officials violated was not clearly established.
      The second alternative assumes that McMorrow refused to admit his
guilt by invoking his privilege against self-incrimination and that his
admission of guilt would be incriminating evidence of perjury because he
earlier testified at his trial that he did not commit the rape for which
he   was   convicted.     McMorrow   argues   that   a   convicted   defendant's
constitutional right against self-incrimination prevents state officials
from making certain benefits conditional on the defendant's admission of
guilt when the defendant invokes his privilege against self-incrimination
and his admission would incriminate him.        We will again assume without
deciding that McMorrow is correct and that these facts constitute a
violation of his right against self-incrimination.
      Again we conclude that the officials are entitled to qualified
immunity because it was not clearly established that this conduct was
unconstitutional.       At the time the officials withheld benefits from
McMorrow for refusing to admit his guilt by invoking his privilege against
self-incrimination, no court with jurisdiction over North Dakota had held
that such conduct was a violation of a




                                      -6-
convicted defendant's constitutional right against self-incrimination.
Other courts outside of North Dakota, however, had ruled on this issue at
the time of the officials' conduct with mixed results.


     Some    courts    have   held   that   it   is   a   violation   of   a   convicted
defendant's right against self-incrimination to punish him or withhold a
benefit because he refuses to admit his guilt by invoking his privilege
against self-incrimination in a situation where he might incriminate
himself.    See Imlay, 813 P.2d at 985; Mace v. Amestoy, 765 F. Supp. 847,
851-52 (D. Vt. 1991).      Cf. Thomas v. United States, 368 F.2d 941, 945-46
(5th Cir. 1966).      Other courts have held that withholding a benefit when
a convicted defendant refuses to admit his guilt by invoking his privilege
against self-incrimination is constitutional because the defendant is not
compelled to waive his privilege and simply forgoes a benefit by asserting
his privilege.      See Russell v. Eaves, 722 F. Supp. 558, 560 (E.D. Mo.
1989), appeal dismissed, 902 F.2d 1574 (8th Cir. 1990); Henderson v. State,
543 So. 2d 344, 346 (Fla. Dist. Ct. App. 1989).                See also Asherman v.
Meachum, 957 F.2d 978, 982-83 (2d Cir. 1992) (en banc).                Again, because
there is no North Dakota authority and a split in the decisions by other
courts, we hold that the constitutional right that McMorrow claims the
officials violated was not clearly established.           See Montana v. Imlay, 506
U.S. 5, 6-7 (1992) (White, J., dissenting).
     McMorrow cites Minnesota v. Murphy, 465 U.S. 420 (1984), to support
his argument that the officials violated the Constitution by withholding
parole, work release, and less restrictive confinement from him because he
refused    to admit his guilt by invoking his privilege against self-
incrimination.   In Murphy, the United States Supreme Court stated that it
is "clear that a State may not impose substantial penalties because a
witness elects to




                                        -7-
exercise his Fifth Amendment right not to give incriminating testimony
against himself."     Id. at 434 (internal quotations omitted).      McMorrow
argues that the Court's statement and other language in Murphy clearly
established that the officials' conduct was unconstitutional.


      We reject McMorrow's argument because he misreads Murphy and the
Supreme Court precedent relied on in Murphy.   The Supreme Court reaffirmed
in Murphy what it held in previous decisions, that the government cannot
penalize someone for invoking his privilege against self-incrimination.
Id. at 434-35 (citing Lefkowitz v. Cunningham, 431 U.S. 801, 805-06 (1977);
Lefkowitz v. Turley, 414 U.S. 70, 79-84 (1973); Uniformed Sanitation Men
Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 283-84 (1968); Gardner
v. Broderick, 392 U.S. 273, 278-79 (1968); Garrity v. New Jersey, 385 U.S.
493, 498-99 (1967)).      Murphy does not, however, overrule the Court's
earlier cases that state that the government can penalize someone for
refusing to cooperate on government matters, even when the person does so
by invoking his privilege against self-incrimination.    Cunningham, 431 U.S.
at 806; Turley, 414 U.S. at 84; Sanitation Men, 392 U.S. at 284; Gardner,
392 U.S. at 278.    See also Baxter v. Palmigiano, 425 U.S. 308, 320 (1976).
McMorrow's complaint states that the officials denied him certain benefits
because he refused to admit his guilt, not because he invoked his privilege
against   self-incrimination.       Under   Murphy,   prison   officials   may
constitutionally deny benefits to a prisoner who, by invoking his privilege
against self-incrimination, refuses to make statements necessary for his
rehabilitation, as long as their denial is based on the prisoner's refusal
to   participate in his rehabilitation and not his invocation of his
privilege.   See Asherman, 957 F.2d at 980-83.
      McMorrow's complaint alleges two different types of conduct by




                                     -8-
the officials which could be constitutional violations.          We have assumed
that both types of conduct are constitutional violations.             We conclude,
however, that it was not clearly established at the time of the conduct
that either type of conduct was a constitutional violation.          Therefore, the
officials   are   entitled   to   qualified   immunity,   and   we   must   dismiss
McMorrow's claim that the officials violated his constitutional right
against self-incrimination.2


     We reverse the district court's order and remand to the district
court for dismissal of McMorrow's claim based on his right against self-
incrimination, and for further proceedings as may be appropriate with
respect to those claims that are not the subject of this appeal.


     A true copy.


            Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




     2
      In Poteet v. Fauver, 517 F.2d 393 (3d Cir. 1975), the Third
Circuit Court of Appeals held that it was a violation of a
convicted defendant's constitutional right to due process to
increase his punishment because he refused to admit to the crime
for which he had been convicted. Id. at 397. McMorrow has not
argued that the officials' conduct violated his right to due
process. Even if McMorrow had made such an argument, Poteet does
not convince us that it was clearly established that the officials'
conduct was a violation of McMorrow's right to due process.

                                       -9-
