Bundy v. Stommel , 168 F. App'x 870 ( 2006 )

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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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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