Trower v. Rounds et al

Filing 21

REPORT AND RECOMMENDATION re 1 Complaint - Prisoner Civil Rights (42:1983) Objections to R&R due by 11/27/2009. Signed by U.S.Magistrate Judge John E. Simko on 11/6/09. (SLW) (Additional attachment(s) added on 11/6/2009: # 1 Attachment 1- Bradford v. Missouri Department of Corrections, # 2 Attachment 2- Miskowski v. Martin) (SLW).

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Westlaw.
Page 1 46 Fed.Appx. 857,2002 WL 31056662 (CA8 (Mo.)) (Not Selected for publication in the Federal Reporter) (Cite as: 46 Fed.Appx. 857, 2002 WL 31056662 (C.A.8 (Mo.)))

C
This case was not selected for publication in the Federal Reporter. Not for Publication in West's Federal Reporter See Fed. Rule of Appellate Procedure 32.1 generally governing citation ofjudicial decisions issued on or after Jan. 1, 2007. See also Eighth Circuit Rules 28A, 32.1 A. (Find CTA8 Rule 28A and Find CTA8 Rule 32.1A) United States Court of Appeals,
Eighth Circuit.
William BRADFORD, Appellant,
v.
MISSOURI DEPARTMENT OF CORRECTIONS,
Division of Offender Rehabilitation Services and
Missouri Sexual Offender Program; Division of
Probation and Parole; Larry Slater; James Labundy;
Jonathan Rosenboom; Dora Schriro; Cranston
Mitchell; Fannie Gaw; Bob Newsome; James
Mitchell; Jandra Garter, Appellees.
No. 02-1803.
Submitted Sept. 12,2002.
Filed Sept. 17,2002.
Prisoner appealed the pre-service dismissal of his § 1983 action by the United States District Court for the Eastern District of Missouri. The Court of Ap peals held that: (l) qualified immunity did not shield officials from equitable relief, and (2) pris oner raised potentially significant constitutional is sues that should be reconsidered. Remanded. West Headnotes Officers and Public Employees 283 =:=1l4 283 Officers and Public Employees 2831II Rights, Powers, Duties, and Liabilities 283kl14 k. Liabilities for Official Acts. Most Cited Cases

Qualified immunity does not shield officials from equitable relief. *857 Appeal from the United States District Court for the Eastern District of Missouri. Before BOWMAN, MURPHY, and RILEY, Circuit Judges.

[UNPUBLISHED] PER CURIAM. **1 Missouri inmate William Bradford appeals the district court's pre-service dismissal of his 42 U.S.C. § 1983 action. He also seeks to proceed in forma pauperis (IFP) on appeal. Bradford claimed in his complaint that state entities and officials were violating his Fifth Amendment right against self-incrimination. He alleged that while he was a participant in the Missouri Sex Of fender Program (MoSOP), MoSOP personnel de manded that he disclose potentially incriminating instances of past sexual and criminal conduct or suffer termination from MoSOP, extension of his conditional release date, referral for indefinite civil commitment as a sexually violent predator, and denial of parole eligibility, contact with his chil dren, and reduction of his custody level; when he invoked his Fifth Amendment privilege, defendants began carrying out these threats. Bradford sought damages and equitable relief, including reinstate ment in MoSOP, an order directing that he not be required to disclose his past sexual and criminal history (or alternatively, immunity from the use of such disclosures in legal proceedings), a lower cus tody level, and an injunction prohibiting defendants from referring him to the predator program or inter fering with his ability to visit with his children. The district court dismissed the complaint without prejudice under 28 U.S.C. § 19 15(e)(2)(B) and

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Page 2 46 Fed.Appx. 857,2002 WL 31056662 (C.A.8 (Mo.)) (Not Selected for publication in the Federal Reporter) (Cite as: 46 Fed.Appx. 857,2002 WL 31056662 (C.A.8 (Mo.))) denied Bradford's subsequent Federal Rule of Civil
Procedure 59(e) motion, on the basis that Bradford
had not stated a Fifth Amendment violation, and, in
any case, defendants were entitled to qualified im
munity. The court then denied Bradford's request to
proceed IFP on appeal.
*858 We grant Bradford IFP status, leaving to the
district court the details of calculating the initial
partial appellate filing fee and the collection of the
balance. See Henderson v. Norris, 129 F.3d 481,
484-85 (8th Cir.1997) (per curiam). Upon de novo
review, see Cooper v. Schriro, 189 F.3d 781, 783
(8th Cir.1999) (per curiam), we also remand the ac
tion to the district court. We note that qualified im
munity does not shield officials from equitable re
lief. See Grantham v. Trickey, 21 F.3d 289, 295
(8th Cir.1994). Further, we believe Bradford has
raised potentially significant constitutional issues
that should be reconsidered in light of the Supreme
Court's recent plurality decision in McKune v. Lile,
536U.S. 24, ----, ---- - ----, 122 S.Ct. 2017, 2023,
2026-27, 153 L.Ed.2d 47 (2002) (where prisoner
who refused on Fifth Amendment grounds to parti
cipate in sexual offender program faced transfer to
maximum-security unit, as well as reduced access
to privileges such as canteen expenditures, personal
television, visitation, and work opportunities, con
sequences were not so severe as to amount to com
pelled self-incrimination; noting consequences
were not punitive, and did not extend term of incar
ceration or affect eligibility for good-time credits or
parole). Accordingly, we remand the case to the
district court for further proceedings.
CA8 (Mo.),2002.
Bradford v. Missouri Dept. of Corrections
46 Fed.Appx. 857, 2002 WL 31056662 (CA8
(Mo.))
END OF DOCUMENT

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11/5/2009