Moore v. Atherton

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS NOV 14 2001
TENTH CIRCUIT PATRICK FISHER
Clerk
ARTHUR JAMES MOORE,
Plaintiff-Appellant,
No. 00-1510
v.
(D.C. No. 00-Z-1650)
(Colorado)
WARDEN ATHERTON and MAJOR
REED, Program Manager,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.
Arthur James Moore, a prisoner in the Colorado State Prison (CSP), filed
this suit pro se under 42 U.S.C. § 1983 against CSP officials alleging various
constitutional violations and seeking money damages and injunctive relief. The
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The 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judgment is not binding precedent, except under the doctrines of law of the case,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, or 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.
district court dismissed all his claims as legally frivolous pursuant to 28 U.S.C.
section 1915A(b)(1). Mr. Moore appeals and we affirm.
This court construes pro se complaints liberally. See Hunt v. Uphoff, 199
F.3d 1220, 1223 (10th Cir. 1999); Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(per curiam). We extend this liberal construction principle to pro se appellate
filing as well. See Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998), cert.
denied, 526 U.S. 1052 (1999). While this court has not yet determined whether a
dismissal pursuant to § 1915A on the ground that the complaint is legally
frivolous is reviewed de novo or for an abuse of discretion, Plunk v. Givens, 234
F.3d 1128, 1130 (10th Cir. 2000), our result would be the same under either
standard. We present the facts of the case only as they are relevant to individual
claims, discussed below.
First, as part of an inmate’s incarceration, the CSP expects participation in
a “life skills” program. Once in the program, inmates are expected to discuss the
crimes they committed and for which they are serving time. The “participation
agreement,” signed by Mr. Moore, states that prisoners agree to answer every
question posed to them. For reasons unstated in his complaint, Mr. Moore chose
not to answer questions related to his past crimes and was thus placed on
restricted privileges. This included the removal of a television set from his cell.
Mr. Moore claims that this discipline violated his Fifth Amendment guarantee
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against double jeopardy. 1
According to the Fifth Amendment, no person shall be “subject for the
same offense to be twice put in jeopardy of life or limb.” U.S. C ONST . amend. V.
The double jeopardy clause has been interpreted to prohibit prosecution for the
same offense after acquittal, prosecution for the same offense after a conviction,
and multiple punishments for the same offense. See North Carolina v. Pearce,
395 U.S. 711, 717 (1969), overruled on other grounds, Alabama v. Smith, 490
U.S. 794 (1989). Mr. Moore’s complaint appears to make the argument that
placing him on restricted privileges for refusing to discuss his crime in the life
skills class constitutes a multiple punishment as discussed in Pearce. However,
subsequent decisions have clarified that jeopardy attaches only to proceedings
which are “essentially criminal” in nature. Breed v. Jones, 421 U.S. 519, 528
(1975). “Prison disciplinary hearings are not part of a criminal prosecution, and
therefore do not implicate double jeopardy concerns.” Lucero v. Gunter, 17 F.3d
1347, 1350 (10th Cir. 1994) (citation omitted). The disciplinary process
instituted here falls into the same category. Mr. Moore’s claims on this question
are therefore without merit.
1
Mr. Moore subsequently participated in the life skills program and
successfully completed it.
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Mr. Moore also vaguely asserts that requiring him to answer questions
about the crimes he committed violated his Fifth Amendment right not to
incriminate himself. Even assuming Mr. Moore could somehow be incriminated
by discussing his past crimes, see Lile v. McCune, 224 F.3d 1175, 1179 (10th Cir.
2000), cert. granted, 121 S. Ct. 1955 (2001), we are not persuaded the loss of a
personal television set amounts to the degree of punishment required to establish
compulsion under the Fifth Amendment, see id. at 1180-82, 1185-87.
Second, Mr. Moore complains that his rights have been violated because
the prison chaplain prays with inmates at their cell doors instead of in a private
room. Because he is trying to become a Muslim and does not wish to hear these
prayers, he argues that being forced to hear them infringes on his rights.
Construed liberally, his complaint appears to raise a free exercise claim under the
First Amendment. 2 In analyzing a free exercise claim we first determine whether
government action creates a burden on the exercise of a person’s religion. "(I)t is
necessary in a free exercise case to show the coercive effect of the enactment as it
operates against . . . the practice of (their) religion." Badoni v. Higginson, 638
F.2d 172, 176 (10th Cir. 1980) (quoting School Dist. of Abington v. Schempp, 374
U.S. 203 (1963)), cert. denied, 452 U.S. 954 (1981). In this case, Mr. Moore has
2
Even liberally construed, Mr. Moore does not make a cognizable
establishment clause First Amendment claim.
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not made any argument as to how hearing Christian prayers burdens his own
exercise of his religious beliefs. As to this issue, his complaint fails to state a
cognizable claim.
Third, Mr. Moore complains that his privacy rights have been violated
because female prison staff are allowed to see him in his cell while he is using the
toilet. Circuit precedent recognizes that prisoners retain a limited constitutional
right to bodily privacy, “particularly as to searches viewed or conducted by
members of the opposite sex.” Hayes v. Marriott, 70 F.3d 1144, 1146 (10th Cir.
1995). According to our decision in Hayes, the frequency with which prison
guards watch inmates of the opposite sex undressing, using toilet facilities, and
showering “is an important factor in assessing the constitutionality of prison
practices.” Id. at 1147 (citing Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir.
1982) (per curiam)). Mr. Moore has not provided us with the factual assertions
needed to assess this factor, however, and we must therefore dismiss his
contention for failure to state a claim. 3
Finally, Mr. Moore alleges that his rights were violated because prison
officials did not notify prisoners of a change in standard drug testing procedure
3
We agree with the district court in its further holding that the claim fails
because it does not assert a connection between the named defendants and the
alleged violation of rights, an essential allegation in a civil rights case. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976).
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when they switched from a urine-sample based test to a drug “patch” test. When
he refused to comply with the new test, Mr. Moore was sanctioned. Even
liberally construed, it is not clear from Mr. Moore’s complaint what constitutional
right he alleges was violated. This claim, too, was properly dismissed.
We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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