• Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 1 of 19 PageID #: 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

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DONALD LACY, on behalfofhimself

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and all others similarly situated,

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STATE OF INDIANA;

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MIKE PENCE, in his official capacity as

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Governor for the State of Indiana;

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INDIANA DEPARTMENT OF CORRECTION;

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BRUCE LEMMON, in his official capacity as

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Commissioner of the Indiana Department of Correction; )

)

No. _ _ _ _ _ __

KEITH BUTTS, in his official capacity as

)

Warden of the New Castle Correctional Facility;

)

)

CARl REZMAN, in her individual and official capacity )

as SOMM Clinical Director at New castle Correctional )

Facility;

)

Demand for Jury Trial

)

WENDY KNIGHT, in her official capacity as

)

Superintendent of Plainfield Correctional Facility;

)

)

JANICE DOWNS, in her individual and official capacity )

as SOMM Counselor at Plainfield Correctional Facility; )

)

CHERYL MOORE, in her individual and official capacity )

as Counselor at Plainfield Correctional Facility,

)

)

Defendants. )

COMPLAINT

1

• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 2 of 19 PageID #: 2 Preliminary Statement In this action, the plaintiff, Donald Lacy, seeks to enjoin the defendants State oflndiana, the Indiana Department of Correction, its employees and members of the SOMM program from forcing him to confess guilt, disclose all other sexual behaviors, give written consent to disclosure of the confession and/or disclosure, and submit to a polygraph on these subjects. He further seeks to enjoin the defendants from subjecting him to reports of conducts, segregation, loss of good time credit, loss of credit class time and loss of life, liberties and freedoms for his refusing to admit to an act that he denied at trial. This action further is brought on behalf of the plaintiff, Donald Lacy and on behalf of all other persons similarly situated, and seeks a declaratory judgment that the SOMM program is unconstitutional insofar as it forces the Plaintiff{s] to confess guilt, disclose all other sexual behaviors, give written consent to disclosure of the confession and/or disclosure, submit to a polygraph on these subjects; and, subject them to reports of conduct, segregation, loss of earned good time credit, loss of credit time class and loss of life, liberties and freedoms as a result of the defendants conduct complained of. Plaintiffis] similarly seeks declaratory relief with respect to the Fifth Amendment, applicable to the states through the Fourteenth Amendment, which provides that no person "shall be compelled in any criminal case to be witness against himself." The plaintiff{s] further seek injunctive relief against the defendants from enforcement of the SOMM program as written; and damages for the deprivation of their rights, privileges and immunities guaranteed by the Fifth, and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. 1983.
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• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 3 of 19 PageID #: 3 I. Parties

A. Plaintiffs Information

Name and Prisoner Nwnber ofPlainti:ff: Present Place ofConfinement or Mailing Address:

Donald Lacy (DOC #184915) New Castle Correctional Facility P.O.BoxA New Castle, IN 47362.

B. Defendant's Information

Name ofDefendant 1: Address ofDefendant:

Stateoflndiana StateHouse 200 W. Washington St., Rm.206 Indianapolis, IN 46204

Name ofDefendant 2: Title (If applicable): Address ofDefendant:

Mike Pence. Governor StateHouse 200 W. Washington St., Rm. 206 Indianapolis, IN 46204

Name ofDefendant 3: Title (If applicable): Address ofDefendant:

Indiana Department ofCorrection Entity of the State of Indiana Indiana Government Center South 302 W. Washington St, Rm. E334 Indianapolis, IN 46204

Name ofDefendant 4: Title (If applicable): Address ofDefendant:

Bruce Lemmon Commissioner Indiana Government Center South 302 W. Washington St, Rm. E334 Indianapolis, IN 46204

Name ofDefendant 5: Title (If applicable): Address ofDefendant:

Keith Butts Warden 1000 Van Nuys Road P.O.BoxE New Castle, IN 47362

Name ofDefendant 6: Title (If applicable): Address ofDefendant:

Carl Rezman SOMM Clinical Director 1000 Van Nuys Road P.O.BoxE New Castle, IN 47362

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• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 4 of 19 PageID #: 4

Name ofDefendant 7: Title (If applicable): Address ofDefendant:

Wendy Knight Superintendent 272 Moon Road Plainfield, IN 46168

Name ofDefendant 8: Title (If applicable): Address ofDefendant:

Janice Downs SOMM Counselor 727 Moon Road Plainfield, IN 46168

Name ofDefendant 9: Title (If applicable): Address ofDefendant:

Cheryl Moore Counselor 727 Moon Road Plainfield, IN 46168

C. Governmental Defendants

1. Defendant, STATE OF INDIANA, through the Department of Correction, operates

prisons and other correctional facilities in the State of Indiana.

II. Jurisdiction

2. This Court has jurisdiction to decide this action and to grant the requested relief pursuant

to 28 U.S.C. §§ 1331, 1343(3), 1343(4), 2201, and 2202, and 42 U.S.C. 1983.

III. Venue

3. Venue is proper for the United States District Court for the Southern District oflndiana

pursuant to 28 U.S.C. § 1391(a),(b) and (c).

IV. Jury Demand

4. Plaintiff[s] demand trial by jury in this action on each and every one of their claims as

alleged herein.

V. Class Action

5. This action is brought on behalf of the plaintiff, Donald Lacy and on behalf of all other

persons similarly situated pursuant to Rule 23(a), (b)(2) of the Federal Rules of Civil

4

• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 5 of 19 PageID #: 5 Procedure. The class of persons similarly situated consists of all prisoners who now are forced to participate in SOMM program and are forced to confess guilt against their will, though they plead not guilty at trial. VI. Factual Allegations 6. In a Delaware Circuit Court, the plaintiff, Donald Lacy was found guilty, via, trial by jury, on October 18, 2008, of child molesting, a class C felony; Plaintiff, however, plead not guilty before, during and after trial, and has since maintained his innocence. 7. Notwithstanding, the Delaware Circuit Court sentenced the Plaintiff to an executed term of 8 years imprisonment; as a result, the Plaintiff has been incarcerated in the Indiana Department of Corrections since on or about January 25, 2008. 8. At all times hereinafter mentioned, each and all of the acts of the defendants alleged herein were done by the defendants under color of state law, pretense of the statutes, regulations, customs and usages of the State of Indiana, and under the authority of their offices as heretofore alleged under the State of Indiana, via, the Indiana Department of Correction. 9. The Indiana Department of Correction has made it unlawful ·for any prisoner to refuse participation in the SOMM program, for all prisoners with a history of a sex offense conviction. The SOMM program was made mandatory by Executive Directive 06-30, Executive Directive 12-48, and Executive Directive 12-53. 10. During the Plaintiffs incarceration he has maintained that the Fifth Amendment of the United States Constitution, applicable to the States through the Fourteenth Amendment, provides that no person "shall be compelled in any criminal case to be a witness against himself."
5

• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 6 of 19 PageID #: 6 11. On March 6, 2008, Janice Downs, SOMM counselor interviewed the plaintiff while he was at Plainfield Correctional Facility for participation in the Sex Offender Management and Monitoring program (SOMM). The defendant (Downs) informed the Plaintiff (Lacy) as to the contents of Executive Directive 06-30, and the consequences he would receive, if he refused the SOMM program. 12. The Plaintiff (Lacy) refused to participate in the SOMM program because he would not admit guilt to an act that he denied at trial. See Exhibit A, attached hereto. 13. As a result of the Plaintiff's refusal to participate in the SOMM program, the defendant (Downs) wrote a disciplinary report of conduct against (Lacy) for refusal to participate in a mandatory program, under disciplinary code 116A (Case #IYC 08-03-0057). 14. On March 11, 2008, the Conduct Adjustment Board (C.A.B.) held a hearing, found the Plaintiff (Lacy) guilty as charged, for Refusal to participate in a mandatory program, under disciplinary code 116A. As a result, the (C.A.B.) demoted (Lacy) from credit class I to credit class III as a sanction. 15. Plaintiff (Lacy) appealed the decision of the (C.A.B.) to Wendy Knight, Superintendent who in turn, denied said disciplinary appeal. The Plaintiff (Lacy) then appealed to the final reviewing authority, Edwin Buss, the Commissioner, who never responded; thus, constituted a denial of said disciplinary appeal. 16. On May 7, 2008, Janice Downs, SOMM counselor interviewed the plaintiff while he was at Plainfield Correctional Facility for participation in the Sex Offender Management and Monitoring program (SOMM). The defendant (Downs) informed the Plaintiff (Lacy) as to the contents of Executive Directive 06-30, and the consequences he would receive, if he refused the SOMM program.
6

• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 7 of 19 PageID #: 7 17. The Plaintiff (Lacy) refused to participate in the SOMM program because he could not admit guilt to an act that he denied at trial. As a result, (Downs) wrote a disciplinary report of conduct against (Lacy) for refusal to participate in a mandatory program, under disciplinary code 116A (Case #IYC 08-05-0075). 18. On May 20, 2008, the Conduct Adjustment Board (C.A.B.) held a hearing, found the Plaintiff (Lacy) guilty as charged, for Refusal to participate in a mandatory program, under disciplinary code 116A. As a result, the (C.A.B.) deprived (Lacy) of 180 days of earned credit time as a sanction. 19. Plaintiff (Lacy) appealed the decision of the (C.A.B.) to Wendy Knight, Superintendent who in turn, denied said disciplinary appeal. The Plaintiff (Lacy) then appealed to the final reviewing authority, Edwin Buss, the Commissioner, who never responded; thus, constituted a denial of said disciplinary appeal. 20. On May 4, 2011, Cari Rezman, SOMM Clinical Director, sent a pass for (Lacy) while he was at New Castle Correctional Facility, for participation in the Sex Offender Management and Monitoring program (SOMM). The defendant (Rezman) informed the Plaintiff (Lacy) as to the contents of Executive Directive 06-30, and the consequences he would receive, if he refused the SOMM program. 21. The Plaintiff (Lacy) refused to participate in the SOMM program because he could not admit guilt to an act that he denied at trial. As a result, (Rezman) wrote a disciplinary report of conduct against (Lacy) for refusal to participate in a mandatory program, under disciplinary code 116A (Case #NCF 11-05-0034). The Plaintiff was sent to the segregation unit.
7

• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 8 of 19 PageID #: 8 22. On May 5, 2011, the Conduct Adjustment Board (C.A.B.) held a hearing, found the Plaintiff (Lacy) guilty as charged, for Refusal to participate in a mandatory program, under disciplinary code 116A. As a result, the (C.A.B.) sanctioned (Lacy) to loss of privileges: 45 days commissary restriction, and 45 days telephone restriction; 90 days in segregation, deprived him of 90 days of earned credit time, and demoted him in credit class from CC I to CC II. 23. Plaintiff (Lacy) appealed the decision of the (C.A.B.) to Michael Zenk, Superintendent who in turn, denied said disciplinary appeal. The Plaintiff (Lacy) then appealed to the final reviewing authority, J. David Donahue, the Commissioner, who never responded; thus, constituting a denial of said disciplinary appeal. 24. On July 11, 2011, Carl Rezman, SOMM Clinical Director, sent a pass for (Lacy) while he was at New Castle Correctional Facility, for participation in the Sex Offender Management and Monitoring program (SOMM). The defendant (Rezman) informed the Plaintiff (Lacy) as to the contents of Executive Directive 06-30, and the consequences he would receive, if he refused the SOMM program. 25. The Plaintiff (Lacy) refused to participate in the SOMM program because he could not admit guilt to an act that he denied at trial. As a result, (Rezman) wrote a disciplinary report of conduct against (Lacy) for refusal to participate in a mandatory program, under disciplinary code 116A (Case #NCF 11-07-0068). The Plaintiff was sent to the segregation unit. 26. On July 21, 2011, the Conduct Adjustment Board (C.A.B.) held a hearing, found the Plaintiff (Lacy) guilty as charged, for Refusal to participate in a mandatory program, under disciplinary code 116A. As a result, the (C.A.B.) sanctioned (Lacy) to loss of
8

• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 9 of 19 PageID #: 9
privilege: 30 days telephone restriction; 45 days suspended segregation time, deprived him of 120 days of earned credit time, and demoted him in credit class from CC II to CC III. 27. Plaintiff (Lacy) appealed the decision of the (C.A.B.) to Michael Zenk, Superintendent who in tum, denied said disciplinary appeal. The Plaintiff (Lacy) then appealed to the
final reviewing authority, J. David Donahue, the Commissioner, who never responded;
thus, constituted a denial of said disciplinary appeal. 28. On October 12, 2011, Carl Rezman, SOMM Clinical Director, sent a pass for (Lacy)
while he was at New Castle Correctional Facility, for participation in the Sex Offender Management and Monitoring program (SOMM). The defendant (Rezman) informed the Plaintiff (Lacy) as to the contents of Executive Directive 06-30, and the consequences he would receive, if he refused the SOMM program. 29. The Plaintiff (Lacy) refused to participate in the SOMM program because he could not admit guilt to an act that he denied at trial. As a result, (Rezman) wrote a disciplinary report of conduct against (Lacy) for refusal to participate in a mandatory program, under disciplinary code 116A (Case #NCF 11-10-0082). The Plaintiff was sent to the segregation unit. 30. On October 13, 2011, the Conduct Adjustment Board (C.A.B.) held a hearing, found the Plaintiff (Lacy) guilty as charged, for Refusal to participate in a mandatory program, under disciplinary code 116A. As a result, the (C.A.B.) sanctioned (Lacy) to loss of privileges: 30 days commissary restriction, and 30 days telephone restriction; 120 days segregation time, deprived him of 120 days of earned credit time.
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• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 10 of 19 PageID #: 10
31. Plaintiff (Lacy) appealed the decision of the (C.A.B.) to Michael Zenk, Superintendent who in turn, denied said disciplinary appeal. The Plaintiff (Lacy) then appealed to the final reviewing authority, J. David Donahue, the Commissioner, who never responded; thus, constituted a denial of said disciplinary appeal.
32. On January 25, 2012, Cari Rezman, SOMM Clinical Director, sent a pass for (Lacy) while he was at New Castle Correctional Facility, for participation in the Sex Offender Management and Monitoring program (SOMM). The defendant (Rezman) informed the Plaintiff (Lacy) as to the contents of Executive Directive 06-30, and the consequences he would receive, if he refused the SOMM program.
33. The Plaintiff (Lacy) refused to participate in the SOMM program because he could not admit guilt to an act that he denied at trial. As a result, (Rezman) wrote a disciplinary report of conduct against (Lacy) for refusal to participate in a mandatory program, under disciplinary code 116A (Case #NCF 12-01-0177). The Plaintiff was sent to the segregation unit.
34. On January 31, 2012, the Conduct Adjustment Board (C.A.B.) held a hearing, found the Plaintiff (Lacy) guilty as charged, for Refusal to participate in a mandatory program, under disciplinary code 116A. As a result, the (C.A.B.) sanctioned (Lacy) to loss of privileges: 45 days commissary restriction, and 45 days telephone restriction; 90 days segregation time, deprived him of 180 days of earned credit time, and demoted him in credit class from CC I to CC II.
35. Plaintiff (Lacy) appealed the decision of the (C.A.B.) to Keith Butts, Warden, who in turn, denied said disciplinary appeal. The Plaintiff (Lacy) then appealed to the final
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-·· • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 11 of 19 PageID #: 11
reviewing authority, Bruce Lemmon, the Commissioner, who denied said disciplinary appeal on August 28, 2012. 36. On April25, 2012, Carl Rezman, SOMM Clinical Director, sent a pass for (Lacy) while he was at New Castle Correctional Facility, for participation in the Sex Offender Management and Monitoring program (SOMM). The defendant (Rezman) informed the Plaintiff (Lacy) as to the contents of Executive Directive 06-30, and the consequences he would receive, if he refused the SOMM program. 37. The Plaintiff (Lacy) refused to participate in the SOMM program because he could not admit guilt to an act that he denied at trial. As a result, (Rezman) wrote a disciplinary report of conduct against (Lacy) for refusal to participate in a mandatory program, under disciplinary code 116A (Case #NCF 12-04-0162). The Plaintiff was sent to the segregation unit. 38. On May 1, 2012, the Conduct Adjustment Board (C.A.B.) held a hearing, found the Plaintiff (Lacy) guilty as charged, for Refusal to participate in a mandatory program, under disciplinary code 116A. As a result, the (C.A.B.) sanctioned (Lacy) to loss of privileges: 45 days commissary restriction, and 45 days telephone restriction; 30 days segregation time, deprived him of 180 days of earned credit time, and demoted him in credit class from CC II to CC III. 39. Plaintiff (Lacy) appealed the decision of the (C.A.B.) to Keith Butts, Warden, who in turn, denied said disciplinary appeal. The Plaintiff (Lacy) then appealed to the final reviewing authority, Bruce Lemmon, the Commissioner, who never responded; thus, constituted a denial of said disciplinary appeal.
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• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 12 of 19 PageID #: 12
40. On July 2, 2012, Cari Rezman, SOMM Clinical Director, sent a pass for (Lacy) while he was at New Castle Correctional Facility, for participation in the Sex Offender Management and Monitoring program (SOMM). The defendant (Rezman) informed the Plaintiff (Lacy) as to the contents of Executive Directive 06-30, and the consequences he would receive, if he refused the SOMM program.
41. The Plaintiff (Lacy) refused to participate in the SOMM program because he could not admit guilt to an act that he denied at trial. As a result, (Rezman) wrote a disciplinary report of conduct against (Lacy) for refusal to participate in a mandatory program, under disciplinary code 116A (Case #NCF 12-07-0018). The Plaintiff was sent to the segregation unit.
42. On July 10, 2012, the Conduct Adjustment Board (C.A.B.) held a hearing, found the Plaintiff (Lacy) guilty as charged, for Refusal to participate in a mandatory program, under disciplinary code 116A. As a result, the (C.A.B.) sanctioned (Lacy) to loss of privileges: 45 days commissary restriction, and 45 days telephone restriction; 90 days segregation time, deprived him of 180 days of earned credit time, and demoted him in credit class from CC II to CC III.
43. Plaintiff (Lacy) appealed the decision of the (C.A.B.) to Keith Butts, Warden, who in turn, denied said disciplinary appeal. The Plaintiff (Lacy) then appealed to the final reviewing authority, Bruce Lemmon, the Commissioner, who denied said disciplinary appeal on September 23, 2012.
44. On- October 15, 2012, Carl Rezman, SOMM Clinical Director, sent a pass for (Lacy) while he was at New Castle Correctional Facility, for participation in the Sex Offender Management and Monitoring program (SOMM). The defendant (Rezman) informed the
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• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 13 of 19 PageID #: 13
Plaintiff (Lacy) as to the contents of Executive Directive 06-30, and the consequences he would receive, if he refused the SOMM program. 45. The Plaintiff (Lacy) refused to participate in the SOMM program because he could not admit guilt to an act that he denied at trial. As a result, (Rezman) wrote a disciplinary report of conduct against (Lacy) for refusal to participate in a mandatory program, under disciplinary code 116A (Case #NCF 12-10-0154). The Plaintiff was sent to the segregation unit. 46. On October 24, 2012, the Conduct Adjustment Board (C.A.B.) held a hearing, found the Plaintiff (Lacy) guilty as charged, for Refusal to participate in a mandatory program, under disciplinary code 116A. As a result, the (C.A.B.) sanctioned (Lacy) to loss of privileges: 45 days commissary restriction, and 45 days telephone restriction; 30 days segregation time, deprived him of 180 days of earned credit time, and demoted him in credit class from CC II to CC III. 47. Plaintiff (Lacy) appealed the decision of the (C.A.B.) to Keith Butts, Warden, who in turn, denied said disciplinary appeal. The Plaintiff (Lacy) then appealed to the final reviewing authority, Bruce Lemmon, the Commissioner, who never responded; thus, constituting a denial of said disciplinary appeal. 48. At the current time, Plaintiff and the plaintiff[s] class are being subject to the SOMM program, in which forces them to confess guilt, disclose all other sexual behaviors, give written consent to disclosure of the confession and/or disclosure, and submit to a polygraph on these subjects. 49. The Plaintiff (Lacy) and the Plaintiff class, seeks to enjoin the defendants from subjecting them to reports of conducts, segregation, loss of good time credit, loss of credit class time
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• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 14 of 19 PageID #: 14
and loss of life, liberties and freedoms for his refusing to admit to acts that they denied at trial. 50. At all times relevant hereto, all of the individual Defendants acted under color of state law, custom or usage, acting within the scope of their authority and employment by the Indiana Department of Correction. 51. All of the acts alleged to have been done or not to have been done by Defendants, were done by Defendants acting directly or through their agents, servants or representatives, acting under color of state law, custom or usage, within the scope of their authority and employment. 52. Defendant Bruce Lemmon is the head of the Indiana Department of Corrections and is responsible for the acts and conducts of his subordinates and is further responsible for the conditions under which inmates in Indiana state prisons are forced to admit their guilt. 53. The acts and conduct herein complained of were done with the knowledge, permission, consent, and participation of Bruce Lemmon in that he promulgates regulations and rules and directives governing the conditions under which prisoners are forced to confess their guilt to the crime[s] that they have been convicted of, though, at trial they testified under oath that they did not commit the crime[s] in which they stand convicted.
VII. Claims for Relief 54. Paragraphs 1-53 are hereby incorporated by reference as though fully set forth here. 55. The action of Defendants, acting under color of state and local law, custom and usage,
deprived plaintiffs of their rights, privileges, and immunities under the laws and Constitution of the United States, which provides that no person "shall be compelled in any criminal case to be witness against himself."
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• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 15 of 19 PageID #: 15
56. By these actions, Defendants have deprived Plaintiffs of their rights under the Fifth Amendment, applicable to the states through the Fourteenth Amendment, and in violation of 42 U.S.C. Section 1983
57. The Defendants acts were the proximate cause of the injuries and consequent damages sustained by the plaintiff.
58. Paragraphs 1-57 are hereby incorporated by reference as though fully set forth here. 59. By the actions as described above, the Defendants has intentionally acted in a manner
which they knew or should have known would cause great emotional suffering to Plaintiff[s] thus, committing the tort of intentional infliction of emotional distress by extreme and outrageous conduct, to Plaintiftls] great detriment and loss. 60. Plaintiff repeats andre-alleges the allegations of paragraphs 1~59 herein. 61. By reason of the aforesaid conduct, the plaintiff has been intentionally deprived of life, liberties and freedoms protected by the 14th Amendment of the United States Constitution. 62. The actions of the defendants Rezmen, Downs, Moore, Knight, Butts, and Lemmon in forcing Plaintiftls] to confess guilt, were done maliciously and sadistically and constituted compelled in any criminal case to be witness against himself in violation of the rights, privileges and immunities guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. 63. Plaintiftls] claim that he was denied his presumptive release date (PRD) for refusing to participate in the SOMM program, and for refusing to admit to an act that he denied at trial violated the Fifth Amendment of the United States Constitution, applicable to the
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• •• Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 16 of 19 PageID #: 16
states through the Fourteenth Amendment, which provides that no person "shall be compelled in any criminal case to be a witness against himself." 64. Based on the allegations contained above, plaintiff[s] asserts that the defendants, jointly and severally, deprived him/them of rights, privileges and immunities guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs are therefore entitled to declaratory and injunctive relief pursuant to 42 U.S.C. 1983. 65. Defendant Indiana Department of Correction as the employer of Defendant Lemmon, Commissioner, Butts, Warden, and Knight, Superintendent is liable under the doctrine of respond-eat superior for the tortious conduct of the individual Defendants Rezman, Downs and Moore. 66. Plaintiff repeats, reiterates and re-alleges each and every allegation as contained in paragraphs 1 through 68 as if the same were fully set forth herein at length. 67. That the defendants knew or should have known that their actions forcing plaintiff to confess guilt denied him his constitutional right which provides that no person "shall be compelled in any criminal case to be witness against himself' and due process of law and therefore renders each and every one of the defendants personally liable under 42 U.S.C. § 1983. 68. Plaintiff repeats and re-alleges paragraphs 1 through 70 as if more fully set forth herein. 69. The acts complained of herein were willfully, unlawfully, maliciously and in wanton disregard for the rights, life and feelings of plaintiff. By reason thereof, plaintiff demands exemplary or punitive damages against the defendant in the sum of$300,000.00
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• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 17 of 19 PageID #: 17
VIII. Class Action 70. Plaintiff brings this action individually and pursuant to Rule 23(a), (b)(2) and (b)(3) of
the Federal Rules of Civil Procedure on behalf of all other persons similarly situated. The class is composed of all residents of the State of Indiana institutions and correctional facilities who are forced to participate in SOMM program and are forced to confess guilt against their will, though they plead not guilty at trial. This is a proper class action under Rule 23 ofthe Federal Rules of Civil Procedure in that: (a) the parties affected are so numerous that joinder of all parties is impracticable; (b) there are common questions of law or fact which predominate over any questions which affect only individual members; (c) the claims of the representative plaintiff is typical of those of the class; (d) the representative plaintiff will fairly and adequately protect the interests of the class; (e) the party opposing the class has acted on grounds generally applicable to the class, thereby making appropriate final injunctive relief to the class as a whole; and (f) the class action is superior to other available methods for the fair and efficient adjudication of the controversy.
IX. Exhaustion of Administrative Remedies 71. The Plaintiff has exhausted his administrative remedies with respect to all claims and all
defendants, in that he filed an administrative appeal concerning the denial of his constitutional rights at the disciplinary hearings by defendants Knight, Butts, and Lemmon. Plaintiff (Lacy) has completed the two steps of the administrative appeal process.
X. Previously Dismissed Actions or Appeals
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•• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 18 of 19 PageID #: 18
72. If you are proceeding under 28 U.S.C. §1915, please list each civil action or appeal you have
brought in any court of the United States while you were incarcerated or detained in any facility,
that was dismissed as frivolous, malicious, or for failure to state a claim upon which relief
may be granted. None.
XI. Right to Equitable Relief
73. Plaintiff and the plaintiff class has no plain, adequate or complete remedy at law to
redress the wrongs alleged herein, and this suit for declaratory and injunctive relief is his
only means of securing adequate relief.
XII. Prayer for Relief
WHEREFORE, plaintiff, Donald Lacy, individually and as representatives of a class of
similarly situated persons, respectfully request that the Court grant relief as follows:
A. Assume jurisdiction of this cause.
B. Allow this action to proceed as a class action pursuant to Fed. R. of Civil Procedure 23.
C. Issue a declaratory judgment pursuant to 28 U.S.C. 2201 and 2202, declaring that the defendants, and each of them, that has and or conducting a SOMM programs which forces a confession against the plaintiffs will thereby violate the rights, privileges and immunities secured to them by the fifth and fourteenth amendments to the United States Constitution.
D. Issue a declaratory judgment pursuant to 28 U.S.C. 2201 and 2202, declaring that the defendants, and each of them, that has and or conducting SOMM program is unconstitutional because it forces plaintiff[s] to confess guilt, disclose all other sexual behaviors, give written consent to disclosure of the confession and/or disclosure, and submit to a polygraph on these subjects, violate the Fifth Amendment, applicable to the states through the Fourteenth Amendment, which provides that no person "shall be compelled in any criminal case to be witness against himself."
E. Issue A temporary restraining order, a preliminary injunction, and a permanent and final injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure, restraining the defendants and their employees, agents, and servants, all persons acting in concert with them from enforcing Executive Directive 06-30, Executive Directive 12-48, and Executive Directive 12-53.
F. Declare that Executive Directive 06-30, Executive Directive 12-48, and Executive Directive 12-53, violates the Constitution of the United States, as set forth above.
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• • Case 1:13-cv-00811-RLY-DML Document 1 Filed 05/16/13 Page 19 of 19 PageID #: 19

G. Award each plaintiffthe sum of$100,000.00 in compensatory damages and $300,000.00 in punitive damages from the defendants, jointly and severally.
H. Award each plaintiff compensatory damages against Defendants State of Indiana and Indiana Department of Correction the sum of $2,000,000.00.
I. Award plaintiffs their costs and attorney fees, pursuant to 42 U.S.C. § 1988;
J. Grant plaintiffs such additional relief as is just and equitable, including their attorney fees and costs; and
K. Enter such other and further relief as the Court deems just and proper.

VERIFICATION I, Donald Lacy, do hereby verify, affirm and state under the penalty of perjury that the above and forgoing information is true and correct to the best of my information, knowledge and belief.
Dated: May 14. 2013

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 Case 1:13-cv-00811-RLY-DML Document 10 Filed 09/11/13 Page 1 of 3 PageID #: 52

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DONALD LACY,

)

)

Plaintiff, )

)

vs.

) Case No. 1:13-cv-811-RLY-DML

)

STATE OF INDIANA, et al.,

)

)

Defendants. )

)

Entry and Order Directing Dismissal of Action

Plaintiff Donald Lacy, a state prisoner at the New Castle Correctional Facility, alleges in

his complaint that subjecting him to the Indiana Sex Offender Monitoring and Management

Treatment Program (“SOMM”) has violated his federally secured rights and will continue to do

so. Participation in the SOMM program requires an inmate to confess his guilt to certain crimes.

Failure to do so can result in the loss of good-time credits. Asserting that this violates his Fifth

Amendment right against self-incrimination, Lacy seeks damages, declaratory judgment, and

injunctive relief freeing him from participation in the SOMM. His claims are asserted pursuant to

42 U.S.C. ' 1983.

The court previously screened and dismissed Lacy’s complaint pursuant to 28 U.S.C. §

1915A. He was given a period of time in which to show cause why this action should not be

dismissed consistent with the court’s screening order. Lacy has responded arguing that his claims

are supported by the opinion of the Minnesota Supreme Court in Johnson v. Fabian, 735 N.W.2d

295 (Minn. 2007). But several cases from other jurisdictions have held that sex offender

treatment programs like the SOMM do not violate the Fifth Amendment privilege against self-

incrimination, even though failure to complete the programs results in forfeiture of good-time

Case 1:13-cv-00811-RLY-DML Document 10 Filed 09/11/13 Page 2 of 3 PageID #: 53

credits or the opportunity for early release. See, e.g., Entzi v. Redmann, 485 F.3d 998, 1004 (8th Cir. 2007) (“The North Dakota Department of Corrections has the exclusive discretion to determine whether an offender should be credited with a performance-based sentence reduction. The loss of an opportunity for such a discretionary sentence-reduction credit is not among the consequences for noncompliance that go ‘beyond the criminal process and appear, starkly, as government attempts to compel testimony.’” (citations omitted)); Searcy v. Simmons, 299 F.3d 1220, 1226 (10th Cir. 2002) (where Kansas regulations merely provide that “an ‘inmate may earn good time credits,’” holding that “foreclosing Mr. Searcy from the mere opportunity to earn good time credits is not a new penalty, but only the withholding of a benefit that the KDOC is under no obligation to give”); Ainsworth v. Stanley, 317 F.3d 1, 5 (1st Cir. 2002) (no unconstitutional compulsion where “nonparticipation in [New Hampshire’s sex-offender treatment program] almost always results in an inmate being denied parole”; re-adopting rationale of earlier decision, 244 F.3d 209 (1st Cir. 2001)). Similar reasoning applies here. Because Lacy has no entitlement to good-time credits, the SOMM program does not violate his Fifth Amendment rights by requiring him to admit guilt or lose good-time credits. See Grennier v. Frank, 453 F.3d 442, 44445 (7th Cir. 2006) (because a prisoner has no liberty interest in being released on parole, he has no right to a hearing before being labeled a “sex offender,” a title that affects his eligibility for parole). Lacy has therefore failed to state a claim that would entitle him to relief and this action must be dismissed.
Judgment consistent with this Entry shall now issue. IT IS SO ORDERED.

Date: __0_9_/1_1_/_2_0_1_3_______

__________________________________
RICHARD L. YOUNG, CHIEF JUDGE United States District Court Southern District of Indiana

Case 1:13-cv-00811-RLY-DML Document 10 Filed 09/11/13 Page 3 of 3 PageID #: 54
Distribution: Donald Lacy 184915 New Castle Correctional Facility 1000 Van Nuys Road New Castle, IN 47362

 
 Case 1:13-cv-00811-RLY-DML Document 24 Filed 05/29/14 Page 1 of 6 PageID #: 227

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

May 29, 2014

NOTICE OF ISSUANCE OF MANDATE

Laura A. Briggs To:
UNITED STATES DISTRICT COURT Southern District of Indiana United States Courthouse Indianapolis , IN 46204-0000

DONALD LACY, on behalf of himself and all others similarly situated, Plaintiff - Appellant

No.: 13-3173

v.

STATE OF INDIANA, Defendants - Appellees
Originating Case Information:
District Court No: 1:13-cv-00811-RLY-DML Southern District of Indiana, Indianapolis Division District Judge Richard L. Young
Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A certified copy of the opinion/order of the court and judgment, if any, and any direction as to costs shall constitute the mandate.

RECORD ON APPEAL STATUS:

No record to be returned

NOTE TO COUNSEL:

Case 1:13-cv-00811-RLY-DML Document 24 Filed 05/29/14 Page 2 of 6 PageID #: 228

If any physical and large documentary exhibits have been filed in the above-entitled cause, they are to be withdrawn ten (10) days from the date of this notice. Exhibits not withdrawn during this period will be disposed of.
Please acknowledge receipt of these documents on the enclosed copy of this notice.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Received above mandate and record, if any, from the Clerk, U.S. Court of Appeals for the Seventh Circuit.

Date:

Received by:

____5_/_2_9_/_2_0_1_4_____________

_________________________________________________________________ Deputy Clerk, U.S. District Court

form name: c7_Mandate(form ID: 135)

Case 1:13-cv-00811-RLY-DML Document 24 Filed 05/29/14 Page 3 of 6 PageID #: 229
NONPRECEDENTIAL  DISPOSITION   To  be  cited  only  in  accordance  with  Fed.  R.  App.  P.  32.1

United States Court of Appeals

For  the  Seventh  Circuit
Chicago,  Illinois  60604  

Submitted  April  8,  2014*  

Decided  May  7,  2014  

  

  

Before  

  

  

  

  

  

FRANK  H.  EASTERBROOK,  Circuit  Judge  

  

  

  

  

  

ILANA  DIAMOND  ROVNER,  Circuit  Judge  

  

  

  

  

  

ANN  CLAIRE  WILLIAMS,  Circuit  Judge  

  

  

No.  13-­‐‑3173  

Appeal   from   the   United  

DONALD  S.  LACY,  

  

Plaintiff-­‐‑Appellant,  

States   District   Court   for   the   Southern   District   of   Indiana,   Indianapolis  Division.  

  

  

v.  

STATE  OF  INDIANA,  et  al.,  

  

Defendants-­‐‑Appellees.  

   No.  1:13-­‐‑cv-­‐‑811-­‐‑RLY-­‐‑DML   Richard  L.  Young,  Chief  Judge.  

  

Order      Donald  Lacy  was  convicted  of  child  molestation  and  sentenced  to  eight  years  in   prison.  He  continues  to  maintain  his  innocence  and  has  refused  to  participate  in  Indi-­‐‑ ana’s  Sex  Offender  Management  and  Monitoring  Program,  which  requires  participants   to  admit  their  misconduct  as  part  of  a  plan  of  therapy.  Participants  must  admit  not  only  
                                                                                               
*  Defendants  were  not  served  with  process  in  the  district  court  and  have  elected  not  to  participate  in   this   appeal.   After   examining   appellant’s   brief   and   the   record,   we   have   concluded   that   oral   argument   is   unnecessary.  See  Fed.  R.  App.  P.  34(a);  Cir.  R.  34(f).  
  

Case 1:13-cv-00811-RLY-DML Document 24 Filed 05/29/14 Page 4 of 6 PageID #: 230

No.  13-­‐‑3173  

Page  2  

the  crimes  of  which  they  have  been  convicted  but  also  all  other  sexual  misconduct,  in-­‐‑ cluding  acts  that  still  could  be  prosecuted.  Apart  from  the  possibility  of  being  prosecut-­‐‑ ed  for  other  sex-­‐‑related  crimes,  Lacy,  who  testified  in  his  own  defense  at  trial,  could  be   prosecuted  for  perjury  if  he  now  admits  that  he  committed  the  acts  charged,  and  thus   that  he  lied  under  oath  when  testifying  otherwise.  
   Lacy  maintains  that  the  consequences  of  his  refusal  to  admit  culpability  include  loss   of  good-­‐‑time  credits,  a  reduction  in  credit-­‐‑earning  class,  and  deferral  of  parole  eligibil-­‐‑ ity.  He  contends  that  attaching  these  consequences  to  a  refusal  to  admit  criminal  acts   violates  the  self-­‐‑incrimination  clause  of  the  Constitution’s  fifth  amendment,  applied  to   the  states  by  the  due  process  clause  of  the  fourteenth  amendment.  Although  McKune  v.   Lile,  536  U.S.  24  (2002),  holds  that  a  state  does  not  violate  the  Constitution  by  providing   benefits  to  inmates  who  admit  their  crimes  as  part  of  a  program  similar  to  Indiana’s,  it   adds  that  “compulsory”  participation  is  forbidden  and  that  postponement  of  an  earned   release  date  may  make  participation  effectively  compulsory.      Lacy  filed  a  civil  action  under  42  U.S.C.  §1983,  asking  the  district  court  to  direct  the   warden  and  other  responsible  officials  to  restore  his  good-­‐‑time  credits  and  to  treat  him   no  worse  than  the  state  would  have  done  had  he  participated.  The  district  judge   screened  the  complaint  under  28  U.S.C.  §1915A  and  dismissed,  ruling  that  it  fails  to   state  a  claim  on  which  relief  may  be  granted.  The  judge  relied  on  Entzi  v.  Redmann,  485   F.3d  998,  1004  (8th  Cir.  2007),  which  he  understood  to  hold  that,  when  a  state  has  discre-­‐‑ tion  over  a  prisoner’s  release  (in  Entzi,  by  extending  or  revoking  probation),  exercising   that  discretion  does  not  make  self-­‐‑accusation  compulsory  for  the  purpose  of  McKune   and  the  fifth  amendment.  On  appeal,  Lacy  contends  that  Indiana’s  good-­‐‑time-­‐‑credit  sys-­‐‑ tem  is  not  discretionary—that  he  is  entitled  to  credits  unless  he  misbehaves,  and  that   exercising  his  privilege  not  to  admit  a  crime  cannot  be  deemed  misconduct.      Far  from  deciding  that  states  are  entitled  to  revoke  good-­‐‑time  credits  of  prisoners   who  refuse  to  incriminate  themselves,  Entzi  observed  that,  unless  a  state  or  federal   court  first  restores  the  credits  in  an  action  under  28  U.S.C.  §2254  (or  the  equivalent  state   remedy),  the  doctrine  of  Heck  v.  Humphrey,  512  U.S.  477  (1994),  forecloses  resort  to   §1983.  That  is  equally  true  here  to  the  extent  that  Lacy  wants  damages.  And  to  the  ex-­‐‑ tent  that  he  seeks  earlier  release,  he  has  chosen  the  wrong  kind  of  suit.  Section  1983  does   not  allow  a  federal  court  to  change  a  prisoner’s  release  date.  That  remedy  is  available   only  by  petition  under  §2254.  See  Preiser  v.  Rodriguez,  411  U.S.  475  (1973).  We  held  in   Montgomery  v.  Anderson,  262  F.3d  641,  644–45  (7th  Cir.  2001),  that  Preiser  applies  to  any   request  for  the  restoration  of  good-­‐‑time  credits  or  placement  in  a  higher  credit-­‐‑earning   class.     

Case 1:13-cv-00811-RLY-DML Document 24 Filed 05/29/14 Page 5 of 6 PageID #: 231

No.  13-­‐‑3173  

Page  3  

Preiser  and  Montgomery  foreclose  this  §1983  action.  A  court  cannot  on  its  own  con-­‐‑ vert  a  §1983  suit  to  one  under  §2254;  the  two  kinds  of  actions  have  different  conditions,   different  defendants  (or  respondents),  and  different  consequences  on  either  success  or   an  adverse  outcome.  See,  e.g.,  Moore  v.  Pemberton,  110  F.3d  22  (7th  Cir.  1997);  Copus  v.   Edgerton,  96  F.3d  1038  (7th  Cir.  1996).  A  district  judge  might  ask  a  litigant  whether  he  is   willing  to  accept  the  risks  and  consequences  of  a  different  procedural  form,  see  Castro  v.   United  States,  540  U.S.  375,  382–83  (2003);  Glaus  v.  Anderson,  408  F.3d  382,  388–89  (7th   Cir.  2005),  but  the  district  judge  did  not  ask  Lacy.  
   The  judgment  of  the  district  court  is  vacated,  and  the  case  is  remanded  with  instruc-­‐‑ tions  to  ask  Lacy  whether  he  is  willing  to  dismiss  all  defendants  other  than  the  warden,   forego  his  request  for  damages,  and  have  the  suit  treated  as  a  petition  under  §2254.  If   Lacy  agrees  to  that  approach,  the  district  judge  should  consider  how  McKune  applies  to   the  particular  consequences  that  Indiana  attaches  to  a  refusal  to  participate  in  its  Sex  Of-­‐‑ fender  Management  and  Monitoring  Program,  a  question  that  is  open  in  this  circuit   (and  to  which  Entzi  and  similar  decisions  do  not  speak).  It  might  be  prudent  for  the  dis-­‐‑ trict  judge  to  appoint  counsel  under  the  Criminal  Justice  Act,  18  U.S.C.  §3006A(a)(2)(B),   so  that  this  subject  can  be  fully  briefed  and  any  necessary  evidence  presented.  If  Lacy   does  not  agree  to  proceed  under  §2254,  the  suit  should  be  dismissed  without  prejudice.  

Case 1:13-cv-00811-RLY-DML Document 24 Filed 05/29/14 Page 6 of 6 PageID #: 232 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

May 7, 2014

FINAL JUDGMENT

Before FRANK H. EASTERBROOK, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge

DONALD S. LACY, Plaintiff - Appellant

No.: 13-3173

v.

STATE OF INDIANA, et al., Defendants - Appellees
Originating Case Information:
District Court No: 1:13-cv-00811-RLY-DML Southern District of Indiana, Indianapolis Division District Judge Richard L. Young

The judgment of the District Court is VACATED, and the case is REMANDED with instructions. The above is in accordance with the decision of this court entered on this date.

form name: c7_FinalJudgment(form ID: 132)

 
 DONALD LACY,
vs. KEITH BUTTS,

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
) ) Petitioner, ) ) ) Case No. 1:13-cv-811-RLY-DML ) ) ) Respondent. )

Entry Discussing Motions for Class Certification Petitioner Donald Lacy brings this action pursuant to 28 U.S.C. § 2254, alleging that
requiring his participation in the Indiana Sex Offender Monitoring and Management Treatment
Program (“INSOMM”) has violated his federally secured rights and will continue to do so. This
action has been consolidated with those of five other Indiana prisoners who have brought similar
habeas petitions.
Currently before the court are the petitioner’s motions for class certification, requesting
that the court certify a statewide class of persons defined as follows:
All persons incarcerated in the Indiana Department of Correction who have a prior sex offense conviction, who have been, or will be asked to participate in the Indiana Sex Offender Management Program, and who have, or will refuse to participate because they refuse to confess guilt on the primary offense or disclose other criminal conduct as required by the INSOMM program.
For the reasons the follow, and with a slight adjustment to the class definition, the motions for
class certification are granted.
I. Background

The petitioner alleges that the INSOMM program violates his Fifth Amendment right to be free from self-incrimination. Participation in the INSOMM program requires mandatory disclosure of information regarding past behavior, including both past convictions and uncharged offenses. The information disclosed within the treatment group does not remain confidential. Information may be shared with Indiana Department of Correction (“IDOC”) personnel, community providers of sex offender treatment services, mental health treatment providers, providers of psychiatric evaluation, substance abuse treatment providers, polygraph examiners, other counseling related services, and family members or support persons up to and including employers or landlords. Additionally, any uncharged offense disclosed involving a minor is reported to Child Protective Services or Law Enforcement. The information shared outside the treatment group includes (but is not limited to) information about the inmate’s sex offenses, specific information about their case management, level of group participation and progress in the program. This information is also provided without the inmate’s permission to the Indiana Parole Board and Probation Department.
In 2006, the IDOC made participation in the INSOMM program mandatory for any person with a prior sex offense conviction. Currently operating under Executive Directive #12-53, an inmate’s refusal to participate in the program results in a disciplinary action, including a demotion in credit class and a reduction of earned credit time.1 Petitioner Donald Lacy lost credit time based on his refusal to participate in the INSOMM program. He brought the complaint in this action alleging that the program is an unconstitutional violation of his Fifth Amendment right against
1 Credit time in the Indiana State Prison system is dictated by statute. Ind. Code § 35-50-6-3. A person in Credit Class 1 earns one day of credit time for each day of incarceration. A person assigned to Credit Class 2 earns one day of credit for every two days of incarceration. A person assigned to Credit Class 3 earns no credit time. Id. Similarly, deprivation of credit time and appeal of any deprivation is dictated by statute. Ind. Code §§ 35-50-6-5; 35-50-6-5.5.
2

self-incrimination.2 He asserts that he has lost approximately 2,460 days of good-time credit as a result of his failure to participate in the INSOMM program.
II. Standard for Class Certification Rule 23 of the Federal Rules of Civil Procedure governs the certification of class actions.3 In deciding whether to certify a class, the court may not casually accept as true even the most wellpleaded allegations of the complaint, but must instead “make whatever factual and legal inquiries are necessary under Rule 23” to resolve contested issues. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001); see Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014). Before addressing Rule 23, however, the court must examine whether the proposed class members are sufficiently definite. To do so, “[t]he plaintiff must . . . show . . . that the class is indeed identifiable as a class.” Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). When “there is no way to know or readily ascertain who is a member of the class,” the class “lacks the definiteness required for class certification.” Jamie S. v. Milwaukee Public Schools, 668 F.3d 481, 495 (7th Cir. 2012). If the class as defined is sufficiently definite, the court turns next the Rule 23(a) factors. It is the plaintiff’s burden to prove that an identifiable class exists that qualifies for certification under Rule 23(a). Oshana, 472 F.3d at 513. The four prerequisites under Rule 23(a) are: “(1) [that] the class is so numerous that joinder of all members is impracticable; (2) [that] there are questions of law or fact common to the class; (3) [that] the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) [that] the representative parties will fairly and adequately protect the interests
2 Mr. Lacy originally brought this action as a civil rights action pursuant to 42 U.S.C. § 1983. The Court dismissed the complaint pursuant to 28 U.S.C. § 1915A for failure to state a claim upon which relief can be granted. The Seventh Circuit reversed, but held that because Mr. Lacy sought the restoration of earned credit time, his claims were more properly pursued under 28 U.S.C. § 2254 and Mr. Lacy agreed to convert this action to a habeas action. 3 While Rule 23 does not directly apply in habeas proceedings, a representative procedure analogous to the class action may be appropriate. Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975).
3

of the class.” Fed. R. Civ. P. 23(a). Class certification is not appropriate unless the named plaintiff establishes all four prerequisites. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).
In addition to meeting the prerequisites of Rule 23(a), the proposed class must satisfy one of the conditions of Rule 23(b). Messner, 669 F.3d at 811; Oshana, 472 F.3d at 513. Under Rule 23(b), a class action that satisfies Rule 23(a) may be sustained if one of the following is true: “(1) prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b).
III. Discussion To determine whether class certification is appropriate here, first, the court addresses whether the putative class is sufficiently ascertainable. Next, the court discusses the Rule 23(a) prerequisites to class certification. Finally the court analyzes whether the putative class satisfies Rule 23(b). A. Ascertainability
4

The ascertainability or definiteness of a class is not a prerequisite for class certification enumerated in the Federal Rules, but the Seventh Circuit has made clear that it is nonetheless a requirement for class certification. See Jamie S. v. Milwaukee Public Schools, 668 F.3d 481, 495 (7th Cir. 2012) (declining to certify a putative class because, among other reasons, the class was “fatally indefinite”). To meet this requirement, “[t]he plaintiff must . . . show . . . that the class is indeed identifiable as a class.” Oshana, 472 F.3d at 513. When “there is no way to know or readily ascertain who is a member of the class,” the class “lacks the definiteness required for class certification.” Jamie S., 668 F.3d at 495; see also Adashunas v. Negley, 626 F.2d 600, 604 (7th Cir. 1980) (holding that “the proposed class of plaintiffs is so highly diverse and so difficult to identify that it is not adequately defined or nearly ascertainable” to warrant certification).
The respondent argues that the proposed class lacks sufficient definition to be identifiable because too many factual inquires must be made to determine whether any particular individual belongs in proposed class. Petitioners define the proposed class as:
All persons incarcerated in the Indiana Department of Corrections [sic] who have a prior sex offense conviction, who have been or will be asked to participate in the Indiana Sex Offender Management Program, and who have, or will refuse to participate because they refuse to confess guilt on the primary offense or disclose other criminal conduct as required by the INSOMM program. The respondent argues that the proposed class definition does not create a sufficiently ascertainable class because it fails to define a “sex offense conviction.” The respondent explains that because the statutes governing sex offense convictions have been amended numerous times, determining whether a person has been convicted of a sex offense for purposes of the class definition requires too many specific inquires to ascertain the class. The respondent also argues that the class definition fails to address issues such as whether INSOMM is part of a particular class member’s plea agreement or whether a particular class member admitted guilt through a plea. The respondent
5

compares the motion for class certification in this case to that in Noon v. Sailor, 2000 WL 684274 (S.D. Ind. 2000). The plaintiffs in that case asserted that they were subjected to unconstitutional strip searches while they were confined in the Harrison County Jail. They sought certification of a class of:
all persons arrested for offenses not greater than a misdemeanor, with the exclusion of offenses involving misdemeanor possession of controlled substances, and with the inclusion of the offense of Operating While Intoxicated, as a class D felony, between April 7, 1997 to April 7, 1999 and that were required by the Harrison County Jail to remove their clothing for visual inspection of all or part of their exposed bodies, unless [there] existed reasonable cause to believe they were carrying concealed weapons or contraband. Rejecting class certification, the court explained “[t]he problem with this proposed class definition is that the court could not determine whether any individual was a member of the class without hearing evidence on what would amount to the merits of each person’s claim.” Id. In other words, to determine whether a person qualifies as a class member, the court would have determine on a case-by-case basis whether that person was subjected to an unconstitutional search. No such merits-determination is required here. Unlike the proposed class in Noonan, as the petitioner points out, the IDOC identifies those whom it requires to participate in the INSOMM program and maintains disciplinary and treatment records of refusals to participate which document the reason that inmate refused to participate. The IDOC itself, then, maintains records of those who belong in the class – those who were selected for participation in the INSOMM, but refused to do so based on their right to be free from self-incrimination. These facts make the putative class here more like the class that was found to be sufficiently definite in N.B. v. Hamos, 26 F. Supp. 3d 756 (N.D. Ill. 2014). There, the plaintiffs sought to certify a class as “All recipients of Medicaid in the State of Illinois under the age of 21 who are not receiving medically necessary home and community based services to treat or ameliorate their disorders, and are currently
6

segregated, or who have segregated or [are] at risk of segregation for the purpose of receiving treatment and services and who would not oppose community services.” Id. at 762. Because the proposed class definition assumed a specific diagnosis as a condition of class membership, the court found the class to be sufficiently ascertainable. Id. at 764. The same is true here. As a condition of class membership, a petitioner must have been disciplined for refusing to participate in the INSOMM program based on his refusal to admit guilt or disclose other conduct as required by the program. This is a sufficiently ascertainable class which will not require complicated factspecific inquiries to determine.
B. Rule 23(a) Factors Rule 23(a) sets out four threshold requirements for class certification: “(1) numerosity (a class [so large] that joinder of all members is impracticable); (2) commonality (questions of law or fact common to the class); (3) typicality (named parties’ claims or defenses are typical . . . of the class); and (4) adequacy of representation (representatives will fairly and adequately protect the interests of the class).” Kress v. CCA of Tenn., LLC, 694 F.3d 890, 892-93 (7th Cir. 2012) (alteration in original) (citation and quotation marks omitted). The party seeking class certification bears the burden of proving that these four requirements are met. See Oshana, 472 F.3d at 513. The parties dispute whether the petitioners have established any of the four Rule 23(a) requirements. The court will address each of the four requirements.
1. Numerosity The petitioner argues that the first requirement of Rule 23(a), numerosity, is met here. Numerosity requires that members of a class be sufficiently numerous that joinder of all members of the class is impracticable. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997). Though there is no bright-line test for numerosity, a rule of thumb is that approximately forty members is
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sufficient to satisfy the numerosity requirement. See Hinman v. M and M Rental Center, Inc., 545 F.Supp. 2d 802 (N.D. Ill. 2008). Even if an exact number of class members cannot be stated, “a class can be certified without determination of its size, so long as it’s reasonable to believe it large enough to make joinder impracticable.” Arnold Chapman and Paldo Sign & Display Co. v. Wagener Equities Inc., 747 F.3d 489, 492 (7th Cir. 2014). According to the petitioner, there are 256 people who have refused or were considered not appropriate for treatment in the INSOMM program. Of those, the petitioner explains that 87 have contacted class counsel and purport to meet the class definition. Because there are so many people who have not participated in the INSOMM it is reasonable to believe at this stage that the class is sufficiently numerous to support certification.
To the extent that the respondent argues that some of the purported class members may not be entitled to relief because they may have agreed to participate in the INSOMM program based on plea agreements, it is not necessary at this stage to determine the merits of each individual petitioner’s claim. See Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014). “How many (if any) of the class members have a valid claim is the issue to be determined after the class is certified.” Id. Moreover, the petitioners need not state the exact number in a proposed class, a good faith estimate of the class size is sufficient and the court may rely on common sense to determine whether an estimate of a class size is reasonable. Murray v. E*Trade Financial Corp., 240 F.R.D. 392, 396 (N.D. Ill. 2006).
2. Commonality The next question in determining whether to certify a class is whether “the questions of law or fact common to class members predominate over any questions affecting only individual members.” In re IKO Roofing Shingle Products Liability Litigation, 2014 WL 2958615 (7th Cir.
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2014). The petitioner argues that the commonality requirement is met because the principal issue in this case is whether the IDOC’s policy of depriving inmates of good-time credit for refusal to participate in the INSOMM program constitutes unconstitutional compelled self-incrimination. In this case, according to the petitioner, the only individual issues will concern the amount of harm – the amount of credit time lost – to a particular class member. The petitioner argues that it is therefore more efficient for the principal issue, common to the class members, to be resolved in a single proceeding than for it to be litigated separately in individual disciplinary actions and lawsuits.
The respondent argues that petitioner’s claim presents more uncommon factual scenarios than common ones. For example, the respondent asserts, some potential class members may have already admitted guilt as a part of a guilty plea. Other potential class members may have agreed to participate in INSOMM as part of a plea agreement. Moreover, the potential class members could have lost credit time due to reasons unrelated to INSOMM. The respondent argues that the petitioners failed to show that the members of the proposed class are persons “who have, or will refuse to participate because they refuse to confess guilt.” According to the respondent, the petitioners have only provided a potential class of people who have “refused or were not appropriate for treatment in the SOMMS program,” without specifying why these individuals refused or were not appropriate for treatment. Thus, questions exist regarding why each person refused treatment, creating a variety of factual issues which could vary depending upon the individual.
The proposed class definition itself provides that the members have declined to participate in the INSOMM program because of their refusal to confess guilt on the primary offense or disclose other criminal conduct as required. Regardless of whether the class members refused to
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participate in the program for other reasons or incurred separate disciplinary actions, this refusal to participate in the INSOMM is common to all. Individuals who refused to participate in the INSOMM program for entirely different reasons are not included in the class. Therefore, as the petitioner points out, the question of whether the class members refused to participate in INSOMM because they refuse to confess guilt speaks to numerosity, not commonality. As discussed above, the petitioners have sufficiently shown at this stage that there are sufficient class members who have been disciplined for refusing to admit guilt as part of the INSOMM program to satisfy the numerosity requirement. Further, to the extent that the respondent argues that some members of the class may have already pled guilty to the underlying offense, this does not rule out the possibility that additional admissions of guilt to the underlying offense or other criminal conduct might violate their right to be free of self-incrimination. To the extent that some potential class members may have agreed to participate in the INSOMM program as part of their plea agreement, there is no evidence that any particular potential class member has such a plea agreement. The petitioner has shown that the question of whether the requirement of the INSOMM program that an individual admit guilt is unconstitutional is a question common to all claims. Accordingly, the petitioner has satisfied the commonality requirement.
3. Typicality The petitioner argues that the typicality requirement is met because he and all class members, are victims of the same policy by the IDOC, namely the practice of depriving inmates of good-time credit for refusal based on their Fifth Amendment rights to participate in the INSOMM program. “The key to typicality is based on the relationship between the class representative and the class members; whether the named plaintiff’s interests are aligned with those of the proposed class
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in such a way that the representative, in pursuing his own claims, will also advance the interests of the class. Harris v. Circuit City Stores, Inc., 2008 WL 400862 (N.D. Ill. 2008) (citing Guillory v. American Tobacco Co., No. 97 C 8641, 2001 WL 290603, *3 (N.D. Ill., March 20, 2001)). “Rule 23(a)(3)’s typicality requirement is closely related to Rule 23(a)(2)’s commonality requirement.” Pastor v. State Farm Mut. Auto Ins. Co., 2005 WL 2453900 (N.D. Ill. 2005) (citing Rosario, 963 F.2d at 1018). “(Petitioner’s) claim is typical if it ‘arises from the same event or practice or course of conduct that gives rise to the claims of other class members’ and if (plaintiff’s) claims are ‘based on the same legal theory.’” Id. “The class representative’s claims must have the ‘same essential characteristics as the claims of the class at large.’” Id. (citing De La Fuente, 713 F.2d at 232).
For the same reasons the respondent argues that commonality is not present, the respondent argues that typicality is not present. The respondent asserts the petitioner’s claims are not typical because key factual differences are potentially present among the potential class members. Here, all class members’ claims will arise for the same practice – the deprivation of earned credit time and demotion of credit class for refusing to admit guilt as required by the INSOMM program. In addition, because the respondent’s predominant claim – that the requirement that a participant in the INSOMM program admit guilt is unconstitutional – will be the same for all members of the class, the petitioner has established typicality.
4. Adequacy Finally, the petitioner argues that he and counsel are qualified to represent the interests of the class because he shares the interest in the class in ensuring that inmates who refuse participation in the INSOMM program do not lose good-time credit otherwise owed to them by Indiana statute. Because the resolution of this issue depends on purely legal issues, according to the petitioner,
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there is little or no possibility of conflict between the representative petitioner and the class members.
The respondent argues that since the petitioner has failed to allege why the other potential class members have refused or were not appropriate for the treatment in INSOMM, petitioner may jeopardize the claims of potential class members if the overall harm petitioner suffered is different from the harm of other potential class members. Thus, according to the respondent, a conflict exists regarding class certification. This is an inaccurate understanding of the proposed class. Again, as provided in the proposed class definition, all class members will have refused to participate in the INSOMM program because of their refusal to admit guilt. The petitioner is an adequate representative of this claim.
The court further finds that the proposed class counsel is adequate to represent the class. She is a Federal Community Defender who practices regularly before this court and was appointed by the court to represent Mr. Lacy in this case.
B. Rule 23(b) The petitioner argues that the claim meets the criteria laid out in Rule 23(b)(3). Rule 23(b) requires that common issues predominate the suit. Parko, 739 F.3d at 1086. “The predominance requirement of Rule 23(b)(3) is satisfied” when “the central questions in the litigation are the same for all class members.” Pella Corp. v. Saltzman, 606 F.3d 391, 394 (7th Cir. 2010). “Rule 23(b)(3) also requires [petitioners] to establish that a class action would be the ‘superior’ manner in which to resolve the controversy.” Hubler Chevrolet, Inc. v. General Motors Corp., 193 F.R.D. 574, 581 (S.D. Ind. 2000). “One reason to favor a class action is to avoid duplicative lawsuits, which would thereby waste the parties’ and the courts’ time and resources.” Id.
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Here, the petitioner argues that because “central questions in the litigation are the same for all class members” the predominance requirement of Rule 23(b)(3) has been met. The petitioner explains that the class has one question of law in common – whether the policy of depriving inmates of good-time credit for refusal to participate in the INSOMM program constitutes compelled self-incrimination. According to the petitioner, the policy applies equally to all members of the class and that each member of the class has been subjected to disciplinary action for refusing to admit guilt as required by the INSOMM program. The petitioner further argues that individual disciplinary actions, appeals, and subsequent court filings create the risk of inconsistent results. The respondent argues that the petitioner has failed to allege the class shares an essential factual link because questions remain as to why each potential class member has refused to participate in the INSOMM program. But, again, as the class is defined, each class member would have refused to participate in the INSOMM program based on his or her refusal to admit guilt or provide details about criminal conduct. The policy of IDOC to discipline a prisoner for so refusing is a straightforward agency-wide policy, the constitutionality of which is a common question for all class members. Judicial efficiency and consistency favor a single ruling on the constitutionality of this requirement. Accordingly, the class meets the predominance and superiority requirements of Rule 23(b)(3).
IV. The Class Definition and Counsel The court has found that class certification is appropriate here. However, a slight amendment to the class definition would provide added clarity. First, as the respondent argues, whether a person is a “sex offender” as provided in the proposed class definition is not clearly defined. However, because the claims at issue here are based not on the identification of a petitioner as a “sex offender” but more specifically on whether that person was disciplined for
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refusing to admit guilt as required by the INSOMM program, that term is unnecessary to the class definition and can be deleted. Further, it is inappropriate in a habeas action to provide future relief – it is impossible to restore credit time that has not been taken. Therefore, the class should be defined to include only those prisoners who have actually lost credit time or suffered a demotion in credit class based on their refusal to admit guilt as required by the INSOMM program. With these slight changes, the court proposes to define the class as follows:
All persons incarcerated in the Indiana Department of Correction who have been asked to participate in the Indiana Sex Offender Management Program, who have refused to participate because they refuse to confess guilt on the primary offense or disclose other criminal conduct as required by the INSOMM program, and who have been subjected to disciplinary action in the form of lost credit time and/or demotion in credit class as a result. The parties shall have fourteen days from the issuance of this Entry in which to show cause why the above should not be the class definition.
V. Conclusion For the foregoing reasons, the supplemental motions for class certification [dkt 48] and [dkt 57] are each granted consistent with the foregoing. In the motion for immediate ruling on class certification motion, the petitioner asserts that class certification will determine the future scope and complexity of this case and seeks a ruling on class certification before a ruling on the motion for a preliminary injunction. That motion [dkt 89] is granted consistent with this ruling and with the following: the currently pending supplemental motion for preliminary injunction [dkt 56] is denied as moot. The petitioners will have through November 15, 2015, in which to file a single, consolidated motion for preliminary injunction that incorporates any necessary argument based on the rulings made in this Entry. The respondent will have 21 days to file a response and the petitioner will have 7
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days to file any reply. The court will set any further schedule that is necessary after this briefing is complete.

IT IS SO ORDERED.

Date: ___9_/_3_0_/_2_0_1_5______

__________________________________
RICHARD L. YOUNG, CHIEF JUDGE United States District Court Southern District of Indiana

Distributed Electronically to Registered Counsel of Record

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 Case 1:13-cv-00811-RLY-DML Document 135 Filed 09/28/17 Page 1 of 18 PageID #: 1871

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DONALD LACY, LAWRENCE GREER- )

BEY, FREDERICK HOLMES-BEY,

)

ALLAN KIRKLEY,

)

)

Individually, on behalf of all other

)

similarly situated,

)

)

Petitioners, )

)

vs.

) Case No. 1:13-cv-811-RLY-DML

)

KEITH BUTTS,

)

)

Respondent. )

Entry Discussing Petition for a Writ of Habeas Corpus The petitioners in this habeas class action are Indiana inmates who have lost earned credit time and/or been demoted in credit earning class based on their refusal to participate in the Indiana Sex Offender Management and Monitoring Program (the “SOMM program”). They contend that the requirement of the SOMM program that they either admit to their guilt of the offense for which they were convicted and possibly other crimes or lose earned credit time and suffer a demotion in credit class, violates their Fifth Amendment right to be free from compelled self-incrimination. They therefore seek restoration of the lost credit time and credit earning class.
Procedural Background Petitioner Donald Lacy initially brought this action individually under 42 U.S.C. § 1983. This court found that Lacy had failed to state a claim upon which relief can be granted and dismissed. The Seventh Circuit remanded and explained that, because he lost earned credit time, Lacy’s claims are more properly understood under 28 U.S.C. § 2254. Lacy consented to the

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conversion to a § 2254 case, counsel was appointed to represent him, and a class of petitioners was then certified. The class of petitioners is defined as:
All persons incarcerated in the Indiana Department of Correction who have been asked to participate in the Indiana Sex Offender Management Program, who have refused to participate because they refuse to confess guilt on the primary offense or disclose other criminal conduct as required by the INSOMM program, and who have been subjected to disciplinary action in the form of lost credit time and/or demotion in credit class as a result. The parties were permitted to conduct discovery and file briefs in support and of and in opposition to the habeas petition. The petition is now fully briefed and has been considered.
Standard of Review The Antiterrorism and Effective Death Penalty Act provides for habeas corpus relief when a criminal defendant is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). While the parties have filed cross motions for summary judgment, they have not disputed the material facts upon which the petition is based. Accordingly, whether the filings are treated as motions for summary judgment or not, the standard is the same. The petitioners must show that, based on the applicable law, they are entitled to habeas relief.
Facts The Indiana Department of Correction has administered the SOMM program since 1999. The SOMM program is offered to offenders who are within three to five years of their earliest possible release date and who have been convicted of a sex offense. Specific requirements of the SOMM program and penalties for failing to satisfy the requirements are at issue here.
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A. SOMM Program Requirements The SOMM program is intended to provide rehabilitation for sex offenders. It has three phases, each of which places different requirements on a participant.
1. Phase I During Phase I of the SOMM program, offenders who are identified for participation are asked to participate and provided with information about the program. This includes the Sex Offender Management and Monitoring Program Participation Notification Form, which states that the program is mandatory and that failure to attend and participate will result in disciplinary action and sanctions. In addition, participants are provided with and required to sign the Informed Consent Form. This Form notifies participants that they must “discuss and take responsibility for past acts of sexual violence and abuse” and notifies participants of the “Limits of Confidentiality.” They are told that information regarding past sex offending behaviors, specific case management information, and progress may be shared with others, including other treatment providers and staff, Indiana Department of Correction personnel, community providers of sex offender specific treatment services, mental health treatment providers, providers of psychiatric evaluation, treatment and/or medication, substance abuse treatment providers, polygraph examiners, other counseling related services including job training and vocational programs, family members and support persons including but not limited to clergy, 12-step sponsors, employers, and landlords. Treatment providers are required by law to report the names of any identifiable child or disabled adult victim disclosed during treatment. See Ind. Code § 3133-5. In addition, information can also be shared with the Indiana Parole Board and Probation Department.
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Participants must sign the Sex Offender Treatment Participation Agreement. This form addresses the level of participation required from each offender in the group. The form states that “participation is expected in all group sessions. You are required to disclose information relevant to your offending behavior. Being shy, quiet, and/or introverted are not acceptable reasons for nonparticipation.”
Participants in Phase I are asked to fill out a SOMM Program Sex Offender Questionnaire. This questionnaire includes a basic check-the-box admission to sexual acts, some of which are illegal.
2. Phase II Phase II is the group treatment phase. Based upon a review of the participant’s criminal and sexual offense history, participants are split into three treatment groups, known as risk groups. These risk groups become the “Core Group” to which each participant is assigned. Core Group sessions are therapy sessions with other inmates assigned to the same risk category. Attendance in the group sessions is mandatory. During Phase II, participants must complete a Core Group Workbook. Included in the assignments in this Workbook is a Sexual Offense Disclosure Assignment. A Sexual Offense Disclosure is a detailed written disclosure of sexual offenses, reported and unreported. Participants are asked to be detailed and specific. Participants are also advised that if participants have victims for which no report was ever made, they do not have to give identifiable information about the victims. But disclosure on the sexual history requires providing: the victim’s age, the first name of the victim and the participant’s relationship to the victim, what sexual behaviors were engaged in, how many times and over what period of time, where and when, how the victim was selected, if the victim was groomed, set up or isolated, how compliance or
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Case 1:13-cv-00811-RLY-DML Document 135 Filed 09/28/17 Page 5 of 18 PageID #: 1875
cooperation was accomplished, and how the participant tried to avoid detection or consequences. Participants in the High Risk Core Group are asked for a description of their life situation during the period they were sexually offending, including the offender’s personal, emotional, marital, work, financial, sexual, family, physical and other information; when and how they started with each victim, a detailed description of the set-up of the sexual abuse, and in what ways victims were similar to one another, for example age, appearance, race, etc.
SOMM counselors are tasked with determining whether an offender has made full disclosure on his past sexual history. Their decision on whether full disclosure has been made is final. During treatment, offenders may be referred for a polygraph examination. Polygraphs can also be requested if a counselor feels that a participant was not truthful during the sexual history disclosure. Refusal to submit to a polygraph examination can result in a Code 116 violation. If a participant passes an index polygraph examination, meaning a polygraph relating to the sex crime in which the participant was convicted, he may be excused from further participation in the SOMM program if the SOMM program staff, upon review of the participant’s record, has reason to believe the participant did not commit the offense. Of 244 polygraph examinations disclosed in discovery, 1 participant was excused.
The results of a polygraph exam are discussed in group therapy. SOMM treatment files and polygraph materials and results are subject to subpoena by a Court. Ind. Code § 11-8-5-2. No treatment group exists for those offenders who categorically deny their index offenses, and have shown deception on an index polygraph or who do not wish to take a polygraph, even on a temporary basis.
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3. Phase III During Phase III of the program, participants are required to attend and participate in SOMM sex offender treatment in the community and are required to submit to polygraph examinations. These polygraph examinations are primarily maintenance and monitoring polygraphs, asking the participant about their behavior in the community. At times, the polygraph examinations may also be used to assist treatment providers in confirming aspects of an offender’s sexual history. B. Sanctions for Failing to Participate An eligible participant’s refusal to participate in the program results in a disciplinary violation under Code 116, “Refusing to Participate in a Mandatory Program.” If found guilty, the offender is demoted to credit class III (no credit time will be earned) and will be recommended to be placed on non-contact visits. Two months after the Code 116 violation, the offender will again be asked to participate in the program. If the offender refuses again, he or she will again be charged with a Code 116 violation and, if found guilty, will be retained in credit class III (no credit time will be earned) and deprived of 180 days of earned credit time. He or she will also be subject to other non-grievous sanctions. The offender will not be eligible to earn any additional earned credit time for completing educational, vocational, or substance abuse programs. If an inmate has committed a violation that resulted in a credit class sanction, they would automatically be promoted to the next higher credit class if they did not receive any major conduct violations in the next 90 days. But inmates who have refused to participate in the SOMM program and found guilty of a Code 116 violation are asked again to participate every 60 days. Therefore, if an offender continues to be written up for 116 violations, credit loss would be 180 days every 60 calendar days and credit class would remain III.
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Offenders who pled “not guilty” to their sexual offenses may be temporarily exempted from the program if their conviction (not sentence) is in “appeal” or “post-conviction relief” status. Documentation of a pending case must be re-verified every 90 days.
Discussion While the parties agree on the underlying facts, they dispute whether the imposition of sanctions for refusing to admit guilt or disclose other sexual activity violates the petitioners’ Fifth Amendment rights. The Fifth Amendment guarantees that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. This right remains available even after a defendant is convicted. Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (“A defendant does not lose this protection by reason of his conviction of a crime . . . .”). To show a Fifth Amendment violation, a party must show that the statement is: (1) testimonial; (2) incriminating; and (3) compelled. See Hiibel v. Sixth Judicial Dist., 542 U.S. 177, 189 (2004). The parties do not dispute that the statements required by the SOMM program are testimonial. “[T]o be testimonial, an accused’s communication must itself, explicitly, or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210 (1988). The statements at issue here undoubtedly relates facts and disclose information. A. Risk of Incrimination The parties first disagree regarding whether the testimony that the SOMM program requires carries an impermissible risk of incrimination. For questions to create an impermissible risk of incrimination through their answers, there must be “reasonable cause to apprehend danger from a direct answer.” Hoffman v. United States, 341 U.S. 479, 486 (1951). “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it
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is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Id. at 486-87. Answers are incriminating not only when they “would in themselves support a conviction” but also when they would “furnish a link in the chain of evidence” necessary to prosecute the claimant for a crime. Id. at 486.
The respondent argues that the testimony is not self-incriminating because there is no evidence that the statements might be used in future criminal proceedings or turned over to law enforcement agencies. The respondent also points out that no testimony from the SOMM program has been used to prosecute participants. The petitioners argue that the potential for selfincrimination is real because the program requires them to provide information sufficiently detailed to lead to identifiable victims and possible new criminal charges. They also stress the fact that certain information, including if a victim is a minor or a handicapped adult, must be reported to authorities.
The Indiana Supreme Court has addressed this issue and found that the disclosure requirements of the SOMM program create a risk of self-incrimination. Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014). That court concluded, “the SOMM program is primarily aimed at treatment, but also has a degree of investigatory intent. The fact that no such follow-on prosecutions has yet occurred does not change our view ‘from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because an injurious disclosure could result.’” Id. at 927 (quoting Hoffman, 341 U.S. at 486-87).
This court agrees with the Indiana Supreme Court’s conclusion on this prong of the Fifth Amendment analysis. The SOMM program requires participants not only to disclose the details
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Case 1:13-cv-00811-RLY-DML Document 135 Filed 09/28/17 Page 9 of 18 PageID #: 1879
of the crimes for which they were convicted but any other past act of sexual violence. Their
disclosures must be detailed, including the age of the victim, the first name of the victim, the
participant’s relationship to the victim, and the sexual behaviors engaged in, among other things.
While the participant is not required to give the victim’s name, the amount of information
required is more than sufficient to expect that an investigation into the crime would be
successful. Further, if a participant’s counselor believes that the participant is not being
completely honest, the participant may be subject to a polygraph examination during which
participants are again asked detailed questions about their prior sexual history. Participants are
expressly warned that there are no promises of legal immunity and that the information may be
disclosed to “authorities” and to the court. They are told that any uncharged offense disclosed
involving a minor or a disabled victim must be reported under Indiana law.
For testimony to be incriminating, it need only be found that it “might be dangerous
because an injurious disclosure could result.” Hoffman, 341 U.S. at 486-87 (emphasis added).
There is no requirement that the testimony definitely will result in prosecution or conviction. The
amount and detail of the information that a SOMM participant is required to divulge and the lack
of any guarantee of confidentiality of this information certainly subjects the participants to a risk that they might incriminate themselves through their disclosures.1
1 The respondent compares this case to that in Neal v. Shimoda, 131 F.3d 818, 833 (9th Cir. 1997), where the Ninth Circuit held that the disclosures required by a similar treatment program did not create a risk of self-incrimination. But the plaintiffs in that case challenged the requirement that they admit the crimes for which they were convicted. Because one had already been convicted and was not pursuing post-conviction relief and the other had pled guilty and his plea included a waiver of prosecution for other offenses, there was no possibility that these plaintiffs would be prosecuted based on their statements. In other words, there was no chance that a responsive answer “might be dangerous.” See Hoffman, 341 U.S. at 486-87.
The respondent also relies on Allison v. Snyder, 332 F.3d 1076, 1080 (7th Cir. 2003). The plaintiffs in that case were civil detainees who are offered participation in a treatment program,
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B. Compulsion The parties also disagree whether the consequences to someone required to participate in the SOMM program for remaining silent amount to compulsion in violation of the Fifth Amendment. As a general rule, testimony is compelled when the state threatens to inflict “potent sanctions” unless the constitutional privilege is waived or threatens to impose “substantial penalties” because a person elects to exercise that privilege. Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977). The Supreme Court addressed a question of whether imposition of penalties for failing to participate in a treatment program for sexual offenses in McKune v. Lile, 536 U.S. 24 (2002). McKune therefore necessarily forms the analytical framework for consideration of the SOMM program. But McKune did not have a majority opinion and the penalties at issue in McKune differ from those in this case. The court must therefore consider whether the penalties imposed for failing to participate in the SOMM program amount to unconstitutional compulsion.
1. McKune v. Lile The plaintiff in McKune was a Kansas state inmate who had refused to participate in the Sexual Abuse Treatment Program before his scheduled release from prison. That program required participants to accept responsibility for the crime for which they had been sentenced. Participants were also required to complete a sexual history form, detailing all prior sexual activities, regardless of whether such activities constitute uncharged criminal offenses. For his refusal to participate in the program, the plaintiff’s privilege status was reduced from Level III to Level I. This resulted in a reduction of a number of his prison privileges, including visitation and if they are successful, they are entitled to be released and have the charges against them dismissed. Far from finding that the plaintiffs were not at risk of incriminating themselves, the Seventh Circuit conceded that the plaintiffs might incriminate themselves, but concluded that this possibility is not a ground for recovery of damages in a § 1983 action. Id. (quoting Chavez v. Martinez, 538 U.S 760 (2003)).
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rights, work opportunities, ability to send money to family, canteen expenditures, and access to a personal television. In addition, he would be transferred to a maximum-security unit, where his movement would be more limited, he would be moved from a two-person to a four-person cell, and he would be in a potentially more dangerous environment. McKune, 536 U.S. at 31. The plaintiff argued that these penalties violated his Fifth Amendment rights.
While the Supreme Court did not issue a majority opinion, a majority of the Court agreed that these penalties did not amount to compulsion under the Fifth Amendment. Id. at 37-38 (Kennedy, J., plurality). The four-Justice plurality identified the “central question” as “whether the State’s program, and the consequences for nonparticipation in it, combine to create a compulsion that encumbers the constitutional right.” Id. at 35. The pluarlity went on to state: “A prison clinical rehabilitation program, which is acknowledged to bear a rational relation to a legitimate penological objective, does not violate the privilege against self-incrimination if the adverse consequences an inmate faces for not participating are related to the program objectives and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life.” McKune, 536 U.S. at 37-38. The plurality noted that the plaintiff’s decision not to speak did not extend his period of incarceration or affect his eligibility for good-time credits or parole. Id. at 38. “Determining what constitutes unconstitutional compulsion involves a question of judgment: Courts must decide whether the consequences of an inmate’s choice to remain silent are closer to the physical torture against which the Constitution clearly protects or the de minimis harms against which it does not.” McKune, 536 U.S. at 41.
Justice O’Connor concurred in the result, but wrote separately. She stated that “the Fifth Amendment compulsion standard is broader than the ‘atypical and significant hardship’ standard we have adopted for evaluating due process claims in prisons.” McKune, 536 U.S. 48
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(O’Connor, J., concurring). But she did not “believe the consequences facing respondent in this case are serious enough to compel him to be a witness against himself.” Id. at 50. She did not state a particular test for determining what degree of penalty amounts to compulsion in the prison context. She noted, however, that a proper inquiry should “recognize that it is generally acceptable to impose the risk of punishment, however great, so long as the actual imposition of such punishment is accomplished through a fair criminal process” and so long as it stops short of punishments such as “longer incarceration or execution”—penalties that “would surely implicate a ‘liberty interest.’” Id. at 53.
B. Severity of the Consequences for Failing to Participate Because there is not a majority opinion in McKune, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.” Marks v. United States, 430 U.S. 188 (1977). Applying Marks, a number of courts have treated Justice O’Connor’s opinion as controlling. See United States v. Antelope, 395 F.3d 1128, 1134 n.1 (9th Cir. 2005); Ainsworth v. Stanley, 317 F.3d 1, 4 (1st Cir. 2002); Searcy v. Simmons, 299 F.3d 1220, 1225 (10th Cir. 2002). The petitioners argue that whether the plurality’s test or Justice O’Connor’s test is applied, the SOMM program fails. The petitioners explain that the plurality and the concurrence considered the severity of the sanctions at issue in light of the prison context and conclude that the sanctions here – which amount to extended incarceration – are so great that they amount to compulsion. The respondent applies the plurality’s test and argues that the consequences for failure to participate in the SOMM program do not constitute an “atypical and significant hardship” in relation to the ordinary incidents of prison life.
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The Indiana Supreme Court addressed this issue in Bleeke. The court concluded that losing credit time for failing to participate in the SOMM program would not be an “atypical and significant hardship[] . . . in relation to the ordinary incidents of prison life.” Bleeke, 6 N.E.3d at 932 (citing McKune, 536 U.S. at 38). The court also concluded that the same would result under Justice O’Connor’s McKune analysis because the decision to assign the inmate to the SOMM was based on a “fair criminal process” – his conviction for a sex crime. Bleeke, 6 N.E.3d at 934. In other words, the Indiana Supreme Court held that “the State was permitted to present Bleeke – and all SOMM inmates – with a constitutionally permissible choice: participate in the SOMM program and maintain a more favorable credit status and/or privileges within the prison system or a favorable assignment in a community transition program, or refuse to participate and instead serve out the full term for which he had been lawfully convicted.” Id. at 935.
Relying on Bleeke, the respondent argues that the consequences faced for failure to participate in the SOMM are the loss of privileges, not rights. But, Indiana statute creates a nondiscretionary guarantee to good-time credits. Indiana Code § 35-50-6-3 provides for persons convicted before July 1, 2014:
(b) A person assigned to Class I earns one (1) day of good time credit for each day the person is imprisoned for a crime or confined awaiting trial or sentencing. (c) A person assigned to Class II earns one (1) day of good time credit for every two (2) days the person is imprisoned for a crime or confined awaiting trial or sentencing. (d) A person assigned to Class III earns no good time credit. (e) A person assigned to Class IV earns one (1) day of good time credit for every six (6) days the person is imprisoned for a crime or confined awaiting trial or sentencing. There are no qualifications to these rights and no discretion regarding whether or not the credit time will be awarded. The Indiana Court of Appeals has repeatedly held the same. Maciaszek v. State, 75 N.E.3d 1089, 1092 (Ind. Ct. App. 2017) (Good time credit under that statute is a
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Case 1:13-cv-00811-RLY-DML Document 135 Filed 09/28/17 Page 14 of 18 PageID #: 1884
“matter of statutory right, not a matter of judicial discretion.”) (quoting Weaver v. State, 725 N.E.2d 945, 948 (Ind. Ct. App. 2000)); Weaver v. State, 725 N.E.2d 945, 947 (Ind. Ct. App. 2000) (“[W]hen Indiana Code Section 35-50-6-3 provides, without qualification or exception, that a person imprisoned for a crime or confined awaiting trial or sentencing ‘earns one (1) day of credit time for each day he is imprisoned for a crime or confined awaiting trial or sentencing,’ we must assume from the plain language of this provision that a trial court has no discretion in the granting or denial of pre-sentence jail time credit.”). In other words, Indiana state prisoners have a liberty interest in good time credits as soon as they are earned. See Cochran v. Buss, 381 F.3d 637, 639 (7th Cir. 2004) (recognizing liberty interest in good time credits); McPherson v. McBride, 188 F.3d 784, 785 (7th Cir. 1999) (same).
The mandatory nature of earned good time credits in Indiana distinguishes the penalties in the SOMM program from those in McKune and in other cases where the penalties were found not to amount to compulsion.2 For example, the Tenth Circuit in Searcy v. Simmons, 299 F.3d 1220 (10th. Cir. 2002), considered a similar program. The plaintiff in that case, a Kansas inmate, lost good time credit and the ability to earn good time credit for failing to participate in the sex offender treatment program. But, the court explained, “it is quite clear that Kansas does not make any promises regarding an inmate’s ability to earn good time credits.” Id. at 1226 (citing Kan. Stat. 21-4722). “Thus, at most, foreclosing Mr. Searcy from the mere opportunity to earn good time credits is not a new penalty, but only the withholding of a benefit that the KDOC is under no obligation to give.” Id.; see also Ainsworth v. Stanley, 317 F.3d 1, 5 (1st Cir. 2002) (failure to 2 The respondent argues that, while an inmate will receive a conduct report for failing to participate in the SOMM program, “there is no guarantee that an offender will be found guilty of the conduct report.” But the class of petitioners in this case is defined as inmates “who have been subjected to disciplinary action in the form of lost credit time and/or demotion in credit time” as a result of their failure to participate in the SOMM program.
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participate in a similar program which almost always results in the denial of parole did not amount to compulsion; noting that “inmates do not have a liberty right to parole”); Thorpe v. Grillo, 80 Fed.Appx 215 (3d Cir. 2003) (failure to participate in the program did not subject the plaintiff to additional punishment, extend the term of his incarceration, or automatically deprive him of consideration for parole); Edwards v. Goord, 362 Fed. Appx. 195 (2d Cir. 2010) (revocation of good time credits that the department of correction had discretion to award); Wolfe v. Pennsylvania Dep’t of Corr., 334 F.Supp.2d 762 (E.D. Pa. 2004) (participation in the program is voluntary, but if the plaintiffs do not participate, they are unlikely to receive parole).
The Ninth Circuit considered penalties similar to those the SOMM program provides in United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005). The plaintiff’s probation in that case was revoked as a result of his refusal to participate in a program that would require him to disclose his sexual history. Applying Justice O’Connor’s opinion in McKune, the court explained that “although it may be permissible for the state to impose harsh penalties on defendants when it has legitimate reasons for doing so consistent with their conviction for their crimes of incarceration, it is a different thing to impose ‘penalties for the refusal to incriminate oneself that go beyond the criminal process and appear, starkly, as government attempts to compel testimony.’” Id. at 1137 (quoting McKune 536 U.S. at 53 (O’Connor, J., concurring)). The court agreed that the policy of requiring inmates to provide a sexual history had important rehabilitative goals, but found that those disclosures may be “starkly incriminating.” Id. at 1138. The court also pointed out that Justice O’Connor made clear that she would not have found a penalty of longer incarceration to be constitutionally permissible. Id.
For refusing to participate in the SOMM program, the class members have lost significant earned credit time and the ability to earn any more credit time. Such sanctions, which directly
15

Case 1:13-cv-00811-RLY-DML Document 135 Filed 09/28/17 Page 16 of 18 PageID #: 1886
interfere with an inmate’s liberty interest in their good time credits, would not survive the
plurality’s test in McKune, which held that a prison program does not violate the privilege
against self-incrimination “if the adverse consequences an inmate faces for not participating are
related to the program objectives and do not constitute atypical and significant hardships in
relation to the ordinary incidents of prison life.” McKune, 536 U.S. at 37-38 (Kennedy, J.,
plurality). Here, the loss of otherwise-guaranteed good time credits certainly creates an “atypical
and significant hardship.” McKune, 536 U.S. at 37-38 (Kennedy, J., plurality).
The sanctions at issue – which necessarily force a petitioner to incriminate himself or
face the extension of his incarceration – also would not hold up to Justice O’Connor’s view of impermissible compulsion under the Fifth Amendment.3 McKune, 536 U.S. at 52 (O’Connor, J.
concurring). As Justice O’Connor explained, “penalties for the refusal to incriminate oneself that
go beyond the criminal process and appear, starkly, as government attempts to compel
testimony.” McKune, 536 U.S. at 53 (O’Connor, J. concurring). She also suggested that
lengthening a person’s incarceration would implicate a liberty interest. Id. at 52. Here, by taking
away earned credit time that an inmate is otherwise guaranteed, disciplinary action for failure to
3 The respondent argues, and the Bleeke court concluded, that because the state may require an inmate to participate in the SOMM program by statute, Ind. Code 35-50-6-5(a), participation in the SOMM program and sanctions for its consequences are necessarily part of the inmate’s sentence. Based on this reasoning, the inmate does not face additional punishment or sanction for his failure to comply, but merely the punishment imposed by statute. The statue provides that an inmate may “be deprived of any part of the credit time the person has earned . . . [i]f the person is a sex offender . . . and refuses to participate in a sex offender treatment program.” But the statute itself does not include the waiver of the defendant’s Fifth Amendment rights. It is undoubtedly true that earned credit time may be deprived for failure to follow prison rules or failure to participate in a required program. But this does not lead to a conclusion that the prison rules at issue or the program may violate an inmate’s constitutional rights. It therefore does not make any requirement of the program part of the inmate’s sentence such that the denial of earned credit time is unassailable.
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Case 1:13-cv-00811-RLY-DML Document 135 Filed 09/28/17 Page 17 of 18 PageID #: 1887
participate in the SOMM program imposes penalties that go well beyond the criminal process
through which the inmate was convicted.
The Bleeke court reached a different conclusion based on its reasoning that good time
credits are not “constitutionally required” and that the denial of these credits is based on the fair
criminal process that resulted in the inmate’s sex offense conviction. But, as this court has
already concluded, because earned credit time in Indiana is not discretionary, inmates have a
liberty interest in this credit time. Further, the “fair criminal process” which resulted in the
petitioners’ sex offense convictions contemplates only the sentence for the crime for which they
were convicted. They are entitled, statutorily, to be able to earn credit toward this sentence like
any other convicted prisoner. The denial of their ability to do so for their failure to incriminate
themselves in the course of the SOMM program implicates their liberty rights and results in
compulsion in violation of the Fifth Amendment. 4
4 The respondent resists this conclusion, comparing this case to Minnesota v. Murphy, 465 U.S. 420 (1984). While the plaintiff in that case, Marshall Murphy, was on probation, his probation officer questioned him about another crime for which he was suspected. He answered those questions, incriminated himself, and later sought to have his answers suppressed at this criminal trial. The Supreme Court held that Murphy’s disclosures were not compelled in violation of the Fifth Amendment and could be used against him in the criminal prosecution. The respondent asserts that Murphy faced increased imprisonment of up to 16 months for choosing to remain silent. But in its discussion of Murphy’s probation, the Court pointed out that while Murphy was required to answer his probation officer’s questions truthfully, the conditions “said nothing about his freedom to decline to answer particular questions and certainly contained no suggestion that his probation was conditional on his waiving his Fifth Amendment privilege with respect to further criminal prosecution.” Id. at 437. Because there was no stated penalty for declining to provide answers that may be incriminating, Murphy’s statements were not compelled. Id. The Court pointed out that “the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.” Id. at 436. The Murphy Court, in other words, did not hold that someone’s incarceration could be extended for his failure to incriminate himself, but suggested that it could not.
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Case 1:13-cv-00811-RLY-DML Document 135 Filed 09/28/17 Page 18 of 18 PageID #: 1888 Conclusion
It is undeniable that prison authorities may, in the interest of rehabilitation, impose penalties for failing to participate in sex offender treatment programs. But the SOMM program at issue in this case provides significant penalties, in the form of lost earned good time credits and demotion in credit class, for choosing to remain silent. For the reasons discussed above, these penalties are so severe that they amount to compulsion in violation of the Fifth Amendment. The class petition for a writ of habeas corpus is therefore granted. The petitioners’ motion for summary judgment, dkt. [123], is granted and the cross-motion for summary judgment, dkt. [132], is denied. The disciplinary actions and sanctions for failing to participate in the SOMM program must be vacated.
IT IS SO ORDERED.
Date: September 27, 2017.
18

 
 Lacy v. Butts, 922 F.3d 371 (2019)

922 F.3d 371 United States Court of Appeals, Seventh Circuit.
Donald LACY, on behalf of himself and all others similarly situated, Petitioner-Appellee, v.
Keith BUTTS, Warden, Respondent-Appellant.
No. 17-3256 |
Argued October 26, 2018 |
Decided April 25, 2019
Synopsis Background: State inmate filed § 1983 alleging that state’s sex offender management and monitoring program, which required participants to admit their misconduct as part of plan of therapy, violated his right against self-incrimination. The United States District Court for the Southern District of Indiana, 2013 WL 12098769, dismissed complaint, and inmate appealed. The Court of Appeals, 564 Fed.Appx. 844, vacated and remanded. On remand, inmate converted complaint to habeas petition. the United States District Court for the Southern District of Indiana, No. 13-CV-00811, Richard L. Young, J., granted petition on motion for summary judgment, and state appealed.
Holdings: The Court of Appeals, Wood, Chief Judge, held that:
risk of self-incrimination that flowed from inmate’s participation in program was real and appreciable;
adverse consequences that inmate faced for refusing to make admissions required for participation in program were sufficiently severe to amount to compelled self-incrimination; and
habeas petition, rather than § 1983 action, was appropriate vehicle for inmate to challenge program.
Affirmed.
1

Procedural Posture(s): On Appeal; Petition for Writ of Habeas Corpus; Motion for Summary Judgment.
*373 Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 13-CV-00811 — Richard L. Young, Judge.
Attorneys and Law Firms
Sara J. Varner, Attorney, INDIANA FEDERAL COMMUNITY DEFENDERS, INC., Indianapolis, IN, for Petitioner - Appellee.
Donald Lacy, Pro Se.
Larry D. Allen, Frances Barrow, Attorneys, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN, for Respondent - Appellant.
Before Wood, Chief Judge, and Sykes and Scudder, Circuit Judges.
Opinion
Wood, Chief Judge.
When the state wants to encourage suspects, defendants, or incarcerated offenders to admit guilt, it has many tools at its disposal. Before or during trial, prosecutors may hold out the prospect of a plea bargain. Judges may reward defendants with a sentence reduction for accepting responsibility. Prison rehabilitation programs may offer benefits and incentives by conditioning visitation rights, work opportunities, housing in a lower-security unit, and other privileges on an offender’s willingness to admit responsibility for the crime of conviction. McKune v. Lile, 536 U.S. 24, 40, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002).
But the Fifth Amendment draws one sharp line in the sand: no person “shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. (emphasis added). This case requires us to decide whether Indiana’s Sex Offender Management and Monitoring (INSOMM) program crosses that line with its system of revoking good time credits and denying the opportunity to earn such credits for convicted sex offenders who refuse to confess their crimes. In an action brought by a class led by Donald Lacy, an inmate subject to INSOMM, the district court ruled that Indiana’s system as currently operated impermissibly compels self-incrimination and

Lacy v. Butts, 922 F.3d 371 (2019)
must be revised. We affirm.
I Indiana requires all inmates convicted of a sex offense to complete the INSOMM program before release. The program is divided into three phases. During Phase 1, which focuses on “Consent and Assessment,” participants must fill out a Sex Offender Questionnaire that asks them to identify which illegal sexual acts (for instance, rape, child molestation, or prostitution) they committed and how often. Based on their offense history, participants are then sorted into one of three risk groups for Phase 2, “Risk Based Sex Offender Treatment,” which consists of group therapy sessions led by counselors. Inmates meet only with others assessed at the same risk level; this becomes their “core group.” The higher-risk groups must complete *374 more hours of therapy. In preparation for the therapy sessions, participants must fill out workbooks that require them to describe in detail all past acts of sexual violence and abuse, regardless of whether they were ever charged for those offenses. Finally, after release participants must complete Phase 3, “Community Management and Monitoring,” which is not at issue in this case.
As INSOMM stresses to its participants throughout the program, they enjoy neither immunity nor confidentiality for any of the disclosures they make at any stage. Moreover, participation is an all-or-nothing affair: inmates may not opt out of any part of the program, and they are required to respond fully to all questions asked. A counselor who suspects that a participant has been either deceptive or less than forthcoming has the discretion to order polygraph testing. Such an order triggers a requirement for the participant to fill out a detailed Polygraph Sex History Questionnaire. A participant is excused from admitting responsibility for an offense only if the polygraph examination indicates no deception and the counselors agree that the participant is being truthful.
Failure to participate satisfactorily in INSOMM is costly. It is treated as a Class A or Major Conduct disciplinary violation. That is the same class assigned to rioting, escape, rape, or assault on prison staff. The particular Class A violation at issue in our case—Code 116, “Refusing a Mandatory Program”—applies to a much broader range of conduct than a flat-out refusal to participate. Inmates who refuse a polygraph examination, deny parts of their offenses, give answers that are deemed
2

to be incomplete or dishonest, or otherwise fail to “adhere to treatment expectations” also qualify for a Code 116 violation. The INSOMM counselors make the final decision whether an inmate’s conduct merits disciplinary action.
For a first Code 116 offense, inmates are penalized (among other ways) by placement in a credit class that denies them the opportunity to accrue good-time credits. These are credits to which they would otherwise be entitled by statute. IND. CODE § 35-50-6-3 (accrual of credit time for people convicted up to June 30, 2014); § 35-50-6-3.1 (same, for people convicted after June 30, 2014); § 35-50-6-5 (deprivation of credit time). If an inmate persists in whatever conduct gave rise to the disciplinary action—such as by refusing to admit a particular crime or answer a particular question—he is regarded as committing a continuing Code 116 violation punishable by revocation of 180 days of already-acquired good-time credits for every 60 days during which the noncompliance continues. While the violation is ongoing, the inmate is barred from earning new good time credits. Some class members have lost all of their accrued good-time credits as a result of this system.
Lacy brought this case on May 16, 2013, under 28 U.S.C. § 2254, on behalf of a class of Indiana inmates who have been punished with a loss of good-time credits and a demotion in credit class for failure to abide by the requirements of INSOMM. On September 20, 2015, the district court certified the class. (For ease of exposition, we refer to Lacy’s arguments, on the understanding that he presents them on behalf of the entire class.) Lacy argues that the disclosures required by INSOMM and the penalties imposed for non-participation, taken together, amount to a violation of his Fifth Amendment right to be free from compelled self-incrimination. The district court agreed and ordered the issuance of the writ of habeas corpus to restore the class’s lost good-time credits. It also vacated all disciplinary actions and *375 sanctions for failure to participate in INSOMM.
On appeal, Indiana argues both that the INSOMM program does not carry a sufficiently serious risk of incrimination to trigger the protections of the Fifth Amendment, and that even if it does, the revocation of credit time and the demotion in credit class do not add up to unconstitutional compulsion. Because the district court resolved the case on summary judgment, we consider its decision de novo. Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015).

Lacy v. Butts, 922 F.3d 371 (2019)
II To succeed in his Fifth Amendment challenge to INSOMM, Lacy must demonstrate that the disclosures to which he objects are (1) testimonial, (2) incriminating, and (3) compelled. Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cnty., 542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). Because the parties do not dispute that the disclosures are testimonial, we need decide only the latter two issues: whether the program calls for incriminating information; and if so, whether participation is “compelled” as that term is used in the Supreme Court’s Fifth Amendment jurisprudence.
A Lacy’s first task is to show the risk of self-incrimination that flows from an inmate’s participation in INSOMM is “real and appreciable,” rather than “imaginary and insubstantial.” Marchetti v. United States, 390 U.S. 39, 48, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). He can do so even if the required disclosures would not “in themselves support a conviction,” so long as they would “furnish a link in the chain of evidence” that could lead to a criminal prosecution. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).
A closer look at INSOMM shows that Lacy has met that burden. The extensive information that INSOMM requires of its participants—with the express warning that neither immunity nor confidentiality will be available—exposes Lacy and his fellow class members to the risk of future criminal investigation and prosecution. Although Indiana contends that “the INSOMM program permits participants to describe their actions in the most general terms,” a few examples illustrate why this benign description is not supported by the record.
First, in the disclosure assignments that make up part of the core-group workbooks, the program directs the participant to be “detailed and specific” about each victim he has harmed, using a separate sheet for each one. In the Medium Risk Core Group Workbook, the questions that the participant must answer for each past act of sexual violence or abuse include the participant’s age and the victim’s age at the time of the offense; the first name of the victim; the participant’s relationship to the victim; “what parts of [the participant’s] body” touched “what parts of [the victim’s] body”; “how many times [the participant] offended the victim and over what period of
3

time”; “where and when” the abuse occurred; how the victim was selected and groomed; and the types of force used to ensure the victim’s compliance. The High Risk Core Group Workbook includes these questions and more: it also asks the participant to describe “in detail the set-up of the sexual abuse of each victim”; patterns among his victims, such as their age, appearance, and race; “when and how” the abuse started with each victim; and “in what ways [the participant’s] ... sexual offending behavior change[d] over time.”
*376 If counselors find any of the responses to those questions to be inaccurate or incomplete—a determination they have unfettered discretion to make—they can refer the participant for a polygraph examination. Such a referral starts with the obligation to fill out yet another, equally intrusive, questionnaire. The polygraph questionnaire asks highly specific questions, such as: “How many children have you physically forced into sexual activities? Describe what you did.”; “How many times have you had sexual contact with someone who is handicapped? Describe.”; and “How many times have you made child pornography (taken pictures, video-tapes, films, etc.) of nude children or children engaged in sex acts? Describe.” The participant must also “write the number of times” that he has masturbated in each of 31 different public places, indicate the most recent time he exposed himself to someone, and describe times when he had sexual contact with someone who was drunk or under the influence of drugs. For each victim, the participant must indicate whether he engaged in any one of 27 specific actions and how many times, including whether he “put [his] penis inside [the victim’s] vagina (even a little bit),” “threatened [the] victim with harm,” or “masturbated in front of [the] victim.”
Truthful and complete answers to questions such as these—and there are many, many more—are highly pertinent to crimes beyond those of conviction. The odds that some participants would be investigated and successfully prosecuted for past uncharged crimes are high. The required disclosures could provide enough detail to kickstart a brand-new investigation. (By the time the state knows the victim’s first name, age, and relationship to the offender, as well as when and where the abuse took place, it often will require little outside investigation to complete the story.) INSOMM disclosures might advance or substantiate an ongoing investigation or one that was halted for lack of evidence. In current or potential prosecutions, disclosures from INSOMM could confirm identity or modus operandi. FED. R. EVID. 404(b)(2). And when the questions

Lacy v. Butts, 922 F.3d 371 (2019)
require an admission of responsibility for the crime of conviction rather than for an uncharged crime, a participant who pleaded not guilty and testified in his own defense could be exposed to perjury charges. In short, when Indiana requires inmates to describe all of their past sexual offenses in minute detail, the risks of self-incrimination are far from “remote” or “speculative.” Zicarelli v. N.J. State Comm’n of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972). They are self-evident.
Indiana’s arguments to the contrary are unpersuasive. It places great weight on the fact that “[p]articipants are not required to identify their victims or specific dates of the sexual activity” and that they “are specifically advised not to provide identifying information.” But that general statement collides with the specific command to provide highly detailed questions about each incident of past sexual abuse, omitting only the date and the victim’s last name (or even full name). The required details easily raise a significant risk of incrimination. The state has not explained how it is possible to answer these more specific questions—such as the age of the victim and the victim’s relationship to the participant—while taking advantage of the general admonishment to avoid “identifying information.” Ignoring the actual questions, the state insists that the disclosures are at such a high level of generality that they “could not support a link in the chain sufficient to support an investigation or even admission at trial.”
*377 Saying so does not make it so. This ipse dixit does not explain why granular descriptions of the circumstances surrounding specific sex crimes and patterns of criminal sexual behavior would prove useless to investigators or prosecutors. The Fifth Amendment “protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Kastigar v. United States, 406 U.S. 441, 445, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (emphasis added). The questions posed to an INSOMM participant would yield answers that any competent sex-crimes investigator or prosecutor would love to have.
Indiana also stresses that “no prosecutions have been initiated as a result of the INSOMM program.” But this fact—assuming it is true—is not determinative. It is not the case that “a witness’ constitutional privilege against self-incrimination depends upon a judge’s prediction of the likelihood of prosecution. Rather ... it is only where there is but a fanciful possibility of prosecution that a
4

claim of fifth amendment privilege is not well taken.” In re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir. 1979) (emphasis added).
Indeed, in its reply brief the state all but concedes that the necessary level of risk is present. It admits there that the possibility of prosecution is anything but “fanciful.” It does so in the course of explaining why INSOMM does not provide immunity for its participants. Offenders, the state insists, must feel the risk of prosecution for the program to achieve its therapeutic goals. “Immunity is not an option. If prisoners know they will never be prosecuted for past offenses, they may be led to believe that society does not consider their crimes to be serious.” No one says that the state is obliged to grant immunity, of course; Lile holds otherwise. 536 U.S. at 27, 122 S.Ct. 2017. But the state’s recognition that the disclosures run enough risk of self-incrimination that a prisoner might want immunity is telling. It seems to us that the state is trying to have it both ways: on the one hand, it wants us to believe that the rehabilitative purpose of INSOMM depends on the disclosures’ carrying a meaningful risk of prosecution; but on the other hand, it maintains that this risk is too remote to implicate the Fifth Amendment. Our own independent assessment of the program convinces us that the disclosures do give rise to a real and appreciable risk of prosecution.
B That brings us to the central question on appeal: whether INSOMM, through its denial of the opportunity to earn good-time credits and its revocation of credits already earned, as a means of inducing participants to furnish information, compels self-incrimination in contravention of the Fifth Amendment.
We acknowledge that the line between permissible pressure and impermissible compulsion can be difficult to draw. That may explain why in Lile, the Supreme Court’s latest pronouncement on the subject, the justices failed to produce a majority opinion. 536 U.S. 24, 122 S.Ct. 2017. Nonetheless, many cases are not close to the line, and ours is one of them. All five justices joining the judgment in Lile singled out the extension of a term of incarceration as a penalty more severe than the one before them. We look for guidance to Justice O’Connor’s concurring opinion, which we find reflects the narrowest grounds accepted by the concurring justices and thus is controlling under the rule of Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). Justice

Lacy v. Butts, 922 F.3d 371 (2019)
O’Connor summarized the relevant *378 restrictions imposed on inmate Lile as follows:

These consequences involve a

reduction in incentive level, and a

corresponding transfer from a

medium-security

to

a

maximum-security part of the

prison. In practical terms, these

changes involve restrictions on the

personal property respondent can

keep in his cell, a reduction in his

visitation privileges, a reduction in

the amount of money he can spend

in the canteen, and a reduction in

the wage he can earn through

prison employment.

536 U.S. at 50–51, 122 S.Ct. 2017.
Justice O’Connor’s concurrence specifically identified a longer term of incarceration as an impermissible penalty, at least if it were imposed automatically. 536 U.S. at 52, 122 S.Ct. 2017 (“The penalties potentially faced in these cases—longer incarceration and execution—are far greater than those we have already held to constitute unconstitutional compulsion in the penalty cases. Indeed, the imposition of such outcomes as a penalty for refusing to incriminate oneself would surely implicate a ‘liberty interest.’ ”). Her rationale leads to the conclusion that Lacy faced unconstitutional compulsion. Cf. United States v. Antelope, 395 F.3d 1128, 1138 (9th Cir. 2005) (“Justice O’Connor made clear in her McKune [v. Lile] concurrence that she would not have found a penalty of ‘longer incarceration’ such as that here to be permissible.”). See also Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) (error leading to longer sentence is prejudicial for Sixth Amendment purposes, even if the extension is not a long one).
The plurality opinion in Lile is not to the contrary. The four justices in the plurality went out of their way to distinguish the penalties they found permissible from the sort of punishment at issue in this case. They noted that Lile’s “decision not to participate ... did not extend his term of incarceration. Nor did his decision affect his eligibility for good-time credits or parole.” Lile, 536 U.S. at 38, 122 S.Ct. 2017 (plurality opinion; emphasis added). Like Justice O’Connor, the plurality suggested that when
5

the penalty in question was as serious as a longer term of incarceration, the automatic imposition of such a penalty would amount to unconstitutional compulsion. “States may award good-time credits and early parole for inmates who accept responsibility because silence in these circumstances does not automatically mean the parole board, which considers other factors as well, will deny them parole.” Id., citing Baxter v. Palmigiano, 425 U.S. 308, 317–18, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). For this purpose, the distinction between a discretionary award of less time and the automatic deprivation of an earned sentence reduction is critical.
Three of our sister circuits share this understanding of Lile. See Antelope, 395 F.3d at 1133 n.1; Ainsworth v. Stanley, 317 F.3d 1, 4 (1st Cir. 2002); Searcy v. Simmons, 299 F.3d 1220, 1225 (10th Cir. 2002); see also United States v. Von Behren, 822 F.3d 1139, 1147–48 (10th Cir. 2016). (There are also two unpublished decisions that discuss Lile more briefly; they do not reach any contrary conclusions about the effect of the O’Connor opinion. See Edwards v. Goord, 362 F. App’x 195 (2d Cir. 2010); Thorpe v. Grillo, 80 F. App’x 215 (3d Cir. 2003).)
More broadly, the Supreme Court has emphasized that punishments implicating the length of confinement are different in kind from those that affect the conditions of confinement. Here, Indiana considers no other factors as it evaluates whether to revoke an inmate’s good time credits or to deny him the opportunity to earn such credits. The decision to decline participation *379 in INSOMM is not merely a trigger for a later stage in which the state takes a more holistic view of an inmate’s progress toward rehabilitation. Instead, a prisoner’s choice to invoke his privilege against self-incrimination is the direct cause of his loss of credits—credits that otherwise would be statutorily guaranteed (assuming no independent reason to revoke them). IND. CODE §§ 35-50-6-3, 35-50–6-5. Neither the plurality nor the concurring opinions in Lile support such a system. Nor, for that matter, did the dissenters. As the Ninth Circuit noted in Antelope, 395 F.3d at 1138, the dissenters found even the existing penalties to be unconstitutionally coercive; the more severe sanction of longer incarceration would have been at least as problematic.
Indiana stresses that its credit-time statute explicitly contemplates the revocation of credit time for an offender who “refuses to participate in a sex offender treatment program” during incarceration. IND. CODE § 35-50-6-5(a)(6). But that does not answer the question before us, which is whether it is permissible to strip a

Lacy v. Butts, 922 F.3d 371 (2019)
prisoner of a constitutional right as a means of forcing participation. We have no quarrel with the proposition that the state may use other penalties or inducements.
Indeed, we can assume that there is still some room for parole revocation, depending on the circumstances. But that measure must be used with care. Other courts of appeals that have evaluated these programs since Lile have found that revocation of parole as a penalty for non-participation is permissible in situations where it does not automatically follow. See Ainsworth, 317 F.3d at 4–5 (noting that the denial of parole “was not entirely automatic”); Thorpe, 80 F. App’x 215 (finding no unconstitutional compulsion where an inmate’s refusal to participate in a treatment program did not “automatically deprive him of consideration for parole”). In contrast, the Ninth Circuit held that a district court’s decision explicitly to condition a prisoner’s supervised release on his successful completion of a treatment program similar to INSOMM violated the inmate’s right to be free from compelled self-incrimination. Antelope, 395 F.3d at 1139. Just as in Antelope, Lacy’s refusal to incriminate himself has rendered him categorically ineligible for the shorter term of confinement he otherwise would have received. The Fifth Amendment does not allow Indiana to impose such a penalty.

Finally, we stress that this case relates to the length of time Lacy will be incarcerated, not to the conditions of his confinement. It thus falls on the habeas-corpus side of the line drawn by Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), not the section 1983 side. In fact, Lacy originally brought his suit as a section 1983 action, but we held that a petition under section 2254 was the only appropriate vehicle for his claim. Lacy v. Indiana, 564 F. App’x 844 (7th Cir. 2014) (unpublished order). His case is thus distinguishable from Lile, insofar as the sanctions that the Supreme Court endorsed in Lile were all conditions of confinement, not measures that would affect duration.
III We AFFIRM the judgment of the district court.
All Citations
922 F.3d 371

6

 
 Case: 1:13-cv-811 As of: 01/21/2020 01:10 PM EST 1 of 13
MANDATE,CLOSED
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:13−cv−00811−RLY−DML

LACY v. STATE OF INDIANA et al Assigned to: Judge Richard L. Young Referred to: Magistrate Judge Debra McVicker Lynch Case in other court: 7th Circuit, 13−03173 − Mandate
7th Circuit, 17−03256 − Mandate Cause: 42:1983 Prisoner Civil Rights
Petitioner

Date Filed: 05/16/2013 Date Terminated: 09/28/2017 Jury Demand: Plaintiff Nature of Suit: 555 Prisoner Petitions − Prison Condition Jurisdiction: Federal Question

DONALD LACY 184915 NEW CASTLE − CF NEW CASTLE CORRECTIONAL FACILITY − Inmate Mail/Parcels 1000 Van Nuys Road NEW CASTLE, IN 47362

represented by Andrea Lynn Ciobanu CIOBANU LAW, PC 8910 Purdue Road Suite 240 Indianapolis, IN 46268 317−495−1090 Fax: 866−841−2071 Email: aciobanu@ciobanulaw.com ATTORNEY TO BE NOTICED

Gwendolyn M. Beitz INDIANA FEDERAL COMMUNITY DEFENDERS 111 Monument Circle Suite 3200 Indianapolis, IN 46204 317−383−3520 Fax: (317) 383−3525 Email: gwendolyn_beitz@fd.org ATTORNEY TO BE NOTICED

Sara Varner INDIANA FEDERAL COMMUNITY DEFENDERS 111 Monument Circle Suite 3200 Indianapolis, IN 46204 317−383−3520 Email: sara.varner@fd.org ATTORNEY TO BE NOTICED

V.
Respondent
KEITH BUTTS in his official capacity as Warden of the New Castle Correctional Facility

represented by Frances Hale Barrow DEPUTY ATTORNEY GENERAL Indiana Government Center South 302 West Washington Street 5th Fl. Indianapolis, IN 46204−2770 (317)233−0555 Fax: (317)232−7979 Email: frances.barrow@atg.in.gov ATTORNEY TO BE NOTICED
Jonathan Paul Nagy INDIANA ATTORNEY GENERAL 302 West Washington Street, Indiana Government Center South Fifth Floor

Case: 1:13-cv-811 As of: 01/21/2020 01:10 PM EST 2 of 13
Indianapolis, IN 46204 317−233−8296 Fax: 317−232−7979 Email: jonathan.nagy@atg.in.gov ATTORNEY TO BE NOTICED

Date Filed 05/16/2013
05/16/2013 05/17/2013 05/28/2013 06/14/2013 07/22/2013 07/22/2013 08/13/2013
08/23/2013 09/11/2013 09/11/2013 10/01/2013 10/01/2013 10/01/2013 10/01/2013 10/02/2013

# Docket Text
1 COMPLAINT against CARI BREZMAN, KEITH BUTTS, JANICE DOWNS, INDIANA DEPARTMENT OF CORRECTION, WENDY KNIGHT, BRUCE LEMMON, CHERYL MOORE, MIKE PENCE, STATE OF INDIANA, filed by DONALD LACY. (No fee paid with this filing) (DJH) (Entered: 05/17/2013)
2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff, DONALD LACY. (Attachments: # 1 certification of inmate trust account)(DJH) (Entered: 05/17/2013)
3 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (DJH) (Entered: 05/17/2013)
4 ENTRY granting 2 Motion for Leave to Proceed in forma pauperis. Signed by Judge Richard L. Young on 5/28/2013. (PG) (Entered: 05/28/2013)
5 CONSENT to Jurisdiction by US Magistrate Judge by DONALD LACY. (CBU) (Entered: 06/14/2013)
6 NOTICE of Filing Petition for Temporary Restraining Order by DONALD LACY c/s. (MAC) (Additional attachment(s) added on 7/22/2013: # 1 Affidavit) (MAC). (Entered: 07/22/2013)
7 MOTION for Temporary Restraining Order (Petition), c/s filed by Plaintiff DONALD LACY. (Attachments: # 1 Exhibits, # 2 Text of Proposed Order)(MAC) (Entered: 07/22/2013)
8 ENTRY Dismissing Complaint and Directing Further Proceedings; denying as moot 7 Motion for TRO. The dismissal of the complaint will not at this time result in dismissal of the action. Lacy shall have through August 23, 2013, in which to show cause why Judgment consistent with this Entry should not issue. Signed by Judge Richard L. Young on 8/13/2013. (PG) (Entered: 08/13/2013)
9 RETURN TO ORDER TO SHOW CAUSE, re 8 Order on Motion for TRO, filed by Plaintiff. (Attachments: # 1 Envelope)(PG) (Entered: 08/28/2013)
10 ENTRY and Order Directing Dismissal of Action. Lacy has failed to state a claim that would entitle him to relief and this action is dismissed. Signed by Judge Richard L. Young on 9/11/2013.(PG) (Entered: 09/11/2013)
11 JUDGMENT dismissing action. Signed by Judge Richard L. Young on 9/11/2013.(PG) (Entered: 09/11/2013)
12 NOTICE OF APPEAL as to 10 Entry and Order Directing Dismissal of Action and 11 Judgment. (No fee paid with this filing) (Attachments: # 1 Envelope)(JLM) (Entered: 10/02/2013)
13 DOCKETING STATEMENT by DONALD LACY re 12 Notice of Appeal. (Attachments: # 1 Envelope)(JLM) (Entered: 10/02/2013)
14 MOTION for Leave to Appeal in forma pauperis, filed by Plaintiff DONALD LACY. (Attachments: # 1 Affidavit in Support of Motion to Proceed IFP, # 2 Envelope)(JLM) (Entered: 10/02/2013)
15 DESIGNATION of Record on Appeal by DONALD LACY re 12 Notice of Appeal (Attachments: # 1 Docket Sheet, # 2 Envelope)(JLM) (Entered: 10/02/2013)
16 SEVENTH CIRCUIT APPEAL INFORMATION SHEET re 12 Notice of Appeal − Instructions for Attorneys − Parties' Short Record, Instructions, and Designation of Record information attached. (copy mailed to plaintiff) (LBT) (Entered: 10/02/2013)

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10/02/2013 10/02/2013 10/04/2013 11/13/2013 11/14/2013 11/22/2013
12/12/2013 05/29/2014 06/02/2014 06/02/2014 06/02/2014 06/02/2014 06/02/2014 06/20/2014
06/23/2014 06/23/2014

17 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 12 Notice of Appeal. − for Court of Appeals Use Only. (LBT) (Entered: 10/02/2013)
18 USCA Case Number 13−3173 for 12 Notice of Appeal filed by DONALD LACY. (Attachments: # 1 PLRA Notice and Fee Order)(LBT) (Entered: 10/02/2013)
19 ORDER denying 14 Motion for Leave to Appeal in forma pauperis. (c/m). Signed by Judge Richard L. Young on 10/4/2013. (TMD) (Entered: 10/04/2013)
20 Certified and Transmitted Record on Appeal to US Court of Appeals re 12 Notice of Appeal (USCA #13−3173). (Attachments: # 1 Pleadings, # 2 Notice to Transmit Record on Appeal)(JLM) (Entered: 11/13/2013)
21 Appeal Remark re 12 Notice of Appeal (USCA #13−3173): Long Record received and docketed by USCA. (LBT) (Entered: 11/14/2013)
22 ORDER of USCA as to 12 Notice of Appeal filed by DONALD LACY (USCA #13−3173) − The following are before the Court: 1) Motion for Leave to File and Proceed on Appeal In Forma Pauperis, filed on 11/16/2013, by the pro se appellant. 2) Memorandum in Support of PLRA Motion for Leave to Proceed on Appeal in Forma Pauperis, filed on 11/6/2013, by the pro se appellant. This court has determined that the district court erred in its bad−faith determination. Accordingly, it is ORDERED that the motion for leave to proceed on appeal in forma pauperis is GRANTED. The district court is instructed to assess an initial partial filing fee for the appeal and to notify this court when the partial fee has been collected. (JLM) (Entered: 11/22/2013)
23 ENTRY Regarding Initial Partial Filing Fee on Appeal − No initial partial filing fee is feasible at this time. (c/m and notice to USCA). Signed by Judge Richard L. Young on 12/12/2013.(TMD) (Entered: 12/12/2013)
24 MANDATE of USCA as to 12 Notice of Appeal filed by DONALD LACY (USCA #13−3173) − The judgment of the District Court is VACATED, and the case is REMANDED with instructions. The above is in accordance with the decision of this court entered on this date. (LBT) (Entered: 05/29/2014)
25 ENTRY Directing Further Proceedings − Clerk shall reopen action based on 5/29/14 mandate. Plaintiff shall have through 6/30/14 to notify court in writing regarding the content in paragraph II of this Entry.(cm). Signed by Judge Richard L. Young on 6/2/2014.(TMD) (Entered: 06/02/2014)
26 NOTICE of Offer of Agreement, filed by Plaintiff DONALD LACY. (Attachments: # 1 Envelope) (NMT) (Entered: 06/03/2014)
27 MOTION for Preliminary Injunction, filed by Plaintiff DONALD LACY. (Attachments: # 1 Envelope)(NMT) (Entered: 06/03/2014)
28 BRIEF/MEMORANDUM in Support re 27 MOTION for Preliminary Injunction, filed by Plaintiff DONALD LACY. (Attachments: # 1 Envelope)(NMT) (Entered: 06/03/2014)
29 MOTION to Appoint Counsel, filed by Plaintiff DONALD LACY. (NMT) (Entered: 06/04/2014)
30 ORDER granting 29 Motion to Appoint Counsel. The Indiana Federal Community Defenders is appointed to represent the petitioner in this action pursuant to 18 U.S.C. § 3006A. Counsel shall have through June 26, 2014, in which to file an appearance. The clerk shall convert this action to one pursuant to 28 U.S.C. § 2254. The Nature of Suit Code shall be 530 and the Cause of Action shall be 28:2254. The petitioner shall be Donald Lacy and the Respondent shall be Keith Butts. Signed by Judge Richard L. Young on 6/20/2014. (c/m) (NRN) (Entered: 06/20/2014)
32 MOTION for Leave to Proceed in forma pauperis, filed by Petitioner DONALD LACY. (Attachments: # 1 Inmate Account Information, # 2 Envelope)(NMT) (Entered: 06/25/2014)
33 MOTION for Leave to Appeal in forma pauperis, filed by Petitioner DONALD LACY. (Attachments: # 1 Affidavit, # 2 Inmate Account Information, # 3 Envelope)(NMT) (Entered: 06/25/2014)

Case: 1:13-cv-811 As of: 01/21/2020 01:10 PM EST 4 of 13

06/24/2014
06/26/2014 06/27/2014 07/03/2014 07/03/2014 07/08/2014 08/04/2014 08/04/2014
08/06/2014 08/14/2014 08/18/2014 08/18/2014 08/19/2014 08/25/2014

31 ORDER TO SHOW CAUSE (Disciplinary) − Show cause deadline is 20 days of the date of this entry. Petitioner shall have 20 days after service of such answer in which to reply.Respondent shall have through 7/7/2014 to respond to Motion for Preliminary Injunction. (cm). Signed by Judge Richard L. Young on 6/24/2014.(TMD) (Additional attachment(s) added on 6/24/2014: # 1 Exhibit 1, # 2 Exhibit 2) (TMD). (Entered: 06/24/2014)
34 ORDER granting 32 and 33 Motions to Proceed in forma pauperis. (cm). Signed by Judge Richard L. Young on 6/26/2014. (TMD) Modified on 6/26/2014 (TMD). (Entered: 06/26/2014)
35 NOTICE of Appearance by Sara J. Varner on behalf of Petitioner DONALD LACY. (Varner, Sara) (Entered: 06/27/2014)
36 MOTION for Reconsideration re 31 Order to Show Cause (Disciplinary) BRIEFING SCHEDULE, filed by Petitioner DONALD LACY. (Attachments: # 1 Text of Proposed Order)(Varner, Sara) (Entered: 07/03/2014)
37 ORDER granting 36 Motion for Reconsideration of Briefing Schedule. Petitioner's supplement to the Request for Preliminary Injunction is due by August 4, 2014, and a Status Report is due from the parties on the same date. (cm). Signed by Judge Richard L. Young on 7/3/2014. (TMD) (Entered: 07/03/2014)
38 NOTICE of Appearance by Frances Hale Barrow on behalf of Respondent KEITH BUTTS. (Barrow, Frances) (Entered: 07/08/2014)
39 MOTION FOR BRIEFING SCHEDULE AND JOINT STATUS REPORT, filed by Petitioner DONALD LACY. (Attachments: # 1 Text of Proposed Order)(Varner, Sara) (Entered: 08/04/2014)
40 Supplemental MOTION for Preliminary Injunction , filed by Petitioner DONALD LACY. (Attachments: # 1 Exhibit A− Judgment, # 2 Exhibit B− Diagnostic and Classification Summary, # 3 Exhibit C− INSOMM Informed Consent, # 4 Exhibit D− Case No: 08−03−0057, # 5 Exhibit E− Executive Directive #06−30, # 6 Exhibit F− Case No: 08−05−0075, # 7 Exhibit G− Appeal of 08−03−57 & 08−05−75, # 8 Exhibit H− Case No: 11−05−0034, # 9 Exhibit I− Case No: 11−07−0068, # 10 Exhibit J− Case No: 11−10−0082, # 11 Exhibit K− Case No: 12−01−0177, # 12 Exhibit L− Case No: 12−04−162, # 13 Exhibit M− Case No: 12−07−0018, # 14 Exhibit N− Executive Directives #12−48 and #12−53, # 15 Exhibit O− Case No: 12−10−0154, # 16 Exhibit P− Case No: 13−05−0183, # 17 Exhibit Q− Parole Revocation Findings, # 18 Exhibit R− Case No: 14−06−0139, # 19 Exhibit S− INSOMM Informed Consent Form 49777)(Varner, Sara) (Entered: 08/04/2014)
41 ORDER granting 39 Motion for Briefing Schedule. See entry for deadlines. (cm). Signed by Judge Richard L. Young on 8/6/2014. (TMD) (Entered: 08/06/2014)
42 MOTION for Extension of Time to August 20, 2014 in which to 41 Order on Motion Respond to Petitioner's Supplement to Motion for Preliminary Injunction, filed by Respondent KEITH BUTTS. (Attachments: # 1 Text of Proposed Order)(Barrow, Frances) (Entered: 08/14/2014)
43 ORDER granting respondent's 42 Motion for Extension of Time to 8/20/14 to file response to petitioner's supplement to motion for preliminay injunction. (cm). Signed by Judge Richard L. Young on 8/18/2014. (TMD) (Main Document 43 replaced on 8/18/2014) (TMD). (Entered: 08/18/2014)
44 MOTION FOR CLASS CERTIFICATION, filed by Petitioner DONALD LACY. (Attachments: # 1 Exhibit A−Executive Directive #06−30, # 2 Exhibit B−Executive Directive #12−53, # 3 Exhibit C−INSOMM Informed Consent, # 4 Exhibit D−INSOMM Informed Consent, Form 49777)(Varner, Sara) (Entered: 08/18/2014)
45 MOTION for Temporary Suspension of Briefing Schedule and for Status Conference, filed by Respondent KEITH BUTTS. (Attachments: # 1 Text of Proposed Order)(Barrow, Frances) (Entered: 08/19/2014)
46 Order Setting Status Conference: This case is set for an status conference on September 15, 2014, at 10:00 a.m., with Magistrate Judge Debra McVicker Lynch, in Room 277, U.S. Courthouse, 46 East Ohio Street, Indianapolis, Indiana ***SEE

Case: 1:13-cv-811 As of: 01/21/2020 01:10 PM EST 5 of 13

08/27/2014 09/12/2014 09/19/2014 09/23/2014
10/08/2014 10/09/2014
10/20/2014 10/22/2014 10/23/2014 11/03/2014

ORDER FOR ADDITIONAL INFORMATION***. Signed by Magistrate Judge Debra McVicker Lynch on 8/25/2014.(DW) (Entered: 08/25/2014)
47 ENTRY Suspending Briefing Schedule: The briefing schedule entered on August 6, 2014, (Dkt. 39) is suspended. Counsel should be prepared to discuss briefing of the motion for preliminary injunction and the motion for class certification at the status conference on September 15, 2014, at 10:00 a.m. Signed by Magistrate Judge Debra McVicker Lynch on 8/27/2014.(DW) (Entered: 08/28/2014)
48 Supplemental MOTION FOR CLASS CERTIFICATION, filed by Petitioner DONALD LACY. (Attachments: # 1 Exhibit A−Indiana Sex Offender Management)(Varner, Sara) (Entered: 09/12/2014)
49 MINUTE ENTRY and ORDER for proceedings held before Magistrate Judge Debra McVicker Lynch: Telephone Status Conference held on 9/15/2014. (Telephone Status Conference set for 9/22/2014 09:30 AM before Magistrate Judge Debra McVicker Lynch.). See Order for details. Signed by Magistrate Judge Debra McVicker Lynch. (PG) (Entered: 09/19/2014)
50 MINUTE ENTRY and ORDER for proceedings held before Magistrate Judge Debra McVicker Lynch: Telephone Status Conference held on 9/22/2014. The plaintiffs' amended motion for preliminary injunction/motion for summary judgment is due November 3, 2014; the defendants' response is due 12/15/14; plaintiffs' reply is due January 9, 2015. The parties agree that (1) the other cases pending in this district asserting the same challenge should be consolidated, and plaintiff will file a motion to that effect; and (2) the hearing on the motion for preliminary injunction should be consolidated with the trial on the merits. (Telephone Status Conference set for 10/8/2014 03:00 PM before Magistrate Judge Debra McVicker Lynch.). Signed by Magistrate Judge Debra McVicker Lynch. (PG) (Entered: 09/24/2014)
51 Unopposed MOTION TO CONSOLIDATE, filed by Petitioner DONALD LACY. (Attachments: # 1 Exhibit A−Petition Lawrence Greer−Bey, # 2 Exhibit B− Petition Frederick Holmes−Bey, # 3 Exhibit C− Petition Allan Kirkley, # 4 Exhibit D− Petition George Sanders, # 5 Exhibit E−Donald Wrobel)(Varner, Sara) (Entered: 10/08/2014)
52 MINUTE ENTRY and ORDER for proceedings held before Magistrate Judge Debra McVicker Lynch: Telephone Status Conference held on 10/8/2014. The briefing schedule set out in the court's September 23, 2014 Order 50 is modified: that schedule now applies to the plaintiffs' amended motion for classcertification and amended motion for preliminary injunction. Counsel shall confer and file by October 20, 2014, a proposed case management plan. Signed by Magistrate Judge Debra McVicker Lynch. (PG) (Entered: 10/09/2014)
53 MOTION for Extension of Time to File Case Management Plan, filed by Respondent KEITH BUTTS, Petitioner DONALD LACY. (Attachments: # 1 Text of Proposed Order)(Varner, Sara) (Entered: 10/20/2014)
54 ORDER granting 53 Motion for Extension of Time. IT IS THEREFORE ORDERED that the current deadline in which to file a Case Management Plan is extended. The partites are to file a proposed case management plan within fifteen days after the court's ruling on the motion to consolidate (Dkt. 51). The court will not set another status conference in advance of that submission. Signed by Magistrate Judge Debra McVicker Lynch on 10/22/2014. (DW) (Entered: 10/22/2014)
55 ORDER granting 51 unopposed motion to consolidate for all pretrial matters. Cases 1:14−cv−195−JMS−DKL, 1:14−cv−1150−WTL−DML, 1:14−cv−1149−SEB−TAB, 1:14−cv−896−RLY−DKL, and 1:14−cv−1536−WTL−DKL are consolidated into this matter. (cm). Signed by Judge Richard L. Young on 10/23/2014. (TMD) (Entered: 10/23/2014)
56 Supplemental MOTION for Preliminary Injunction Second Consolidated Supplement. (Attachments: # 1 Exhibit T− IDOC Offender Data, # 2 Exhibit U− Case no. 13−11−0105, # 3 Exhibit V− case no. 14−01−0150, # 4 Exhibit W− case no. 14−04−0029, # 5 Exhibit X− case no. 14−06−0203, # 6 Exhibit Y− case no. 14−08−0251, # 7 Exhibit Z− IDOC Offender Data, # 8 Exhibit AA− case no. 14−01−0151, # 9 Exhibit AB− case no. 14−02−0035, # 10 Exhibit AC− case no. 14−04−0160, # 11 Exhibit AD− case no. 14−08−0232, # 12 Exhibit AE− IDOC

Case: 1:13-cv-811 As of: 01/21/2020 01:10 PM EST 6 of 13

11/03/2014 11/07/2014 12/03/2014 12/15/2014 12/15/2014
12/15/2014 12/15/2014 12/15/2014 01/05/2015
01/09/2015 02/05/2015
02/09/2015 03/06/2015

Offender Data, # 13 Exhibit AF− case no. 14−05−0148, # 14 Exhibit AG− case no. 14−06−0067, # 15 Exhibit AH− case no. 14−09−0167, # 16 Exhibit AI− IDOC Offender Data, # 17 Exhibit AJ− case no. 14−02−0282, # 18 Exhibit AK− Court of Appeals Opinion 8−28−12, # 19 Exhibit AL− IDOC Offender Data, # 20 Exhibit AM− case no. 14−04−0004)(Varner, Sara) (Entered: 11/03/2014)
57 Supplemental MOTION to Certify Class Second Supplement. (Varner, Sara) (Entered: 11/03/2014)
58 Joint CASE MANAGEMENT PLAN TENDERED, filed by Petitioner DONALD LACY . (Varner, Sara) (Entered: 11/07/2014)
59 ORDER: CASE MANAGEMENT PLAN APPROVED AS AMENDED. Dispositive motions due by 5/1/2015. Discovery due by 3/1/2015. Signed by Magistrate Judge Debra McVicker Lynch on 12/3/2014.(SWM) (Entered: 12/04/2014)
60 RESPONSE in Opposition re 56 Supplemental MOTION for Preliminary Injunction Second Consolidated Supplement, 27 MOTION for Preliminary Injunction , filed by Respondent KEITH BUTTS. (Barrow, Frances) (Entered: 12/15/2014)
61 DECLARATION of Adam H. Deming, Psy.D. re 60 Response in Opposition to Motion by KEITH BUTTS. (Attachments: # 1 Exhibit A−Informed Consent Form, # 2 Exhibit B−Questionnaire, # 3 Exhibit C−Orientation Workbook, # 4 Exhibit D−Normative Sexuality Workbook, # 5 Exhibit E−Low Risk Core Group Workbook, # 6 Exhibit F−Medium Risk core Group Workbook, # 7 Exhibit G−Phase II High Risk Treatment Workbook, # 8 Exhibit H−Arousal Management Workbook, # 9 Exhibit I−Active Empathy Workbook, # 10 Exhibit J−Attitudes Beliefs Behaviors Workbook, # 11 Exhibit K−Healthy Relationships Workbook, # 12 Exhibit L−Emotional Management Workbook)(Barrow, Frances) (Entered: 12/15/2014)
62 DECLARATION of Cari N. Rezman, LSCW re 60 Response in Opposition to Motion by KEITH BUTTS. (Barrow, Frances) (Entered: 12/15/2014)
63 NOTICE of Appearance by Laura Ann Turner on behalf of Respondent KEITH BUTTS. (Turner, Laura) (Entered: 12/15/2014)
64 RESPONSE in Opposition re 44 MOTION FOR CLASS CERTIFICATION, 48 Supplemental MOTION FOR CLASS CERTIFICATION , filed by Respondent KEITH BUTTS, Defendant BRUCE LEMMON. (Turner, Laura) (Entered: 12/15/2014)
65 MOTION for Extension of Time to February 9, 2015 to file reply to 56 Supplemental MOTION for Preliminary Injunction Second Consolidated Supplement, 57 Supplemental MOTION to Certify Class Second Supplement , filed by Petitioner DONALD LACY. (Attachments: # 1 Text of Proposed Order)(Varner, Sara) (Entered: 01/05/2015)
66 ORDER granting 65 Motion for Extension of Time to File Reply to 2/9/2015 re 56 Supplemental MOTION for Preliminary Injunction Second Consolidated Supplement. Signed by Judge Richard L. Young on 1/9/2015. (TMD) (Main Document 66 replaced on 1/9/2015) (TMD). (Entered: 01/09/2015)
68 MOTION for Extension of Time to March 9, 2015 to file reply to 56 Supplemental MOTION for Preliminary Injunction Second Consolidated Supplement, 57 Supplemental MOTION to Certify Class Second Supplement , filed by Petitioner DONALD LACY. (Attachments: # 1 Text of Proposed Order)(Varner, Sara) (Entered: 02/05/2015)
69 ORDER granting 68 Motion for Extension of Time to 3/09/15 to File Reply 57 Supplemental MOTION to Certify Class Second Supplement, and 56 Supplemental MOTION for Preliminary Injunction Second Consolidated Supplement. Signed by Judge Richard L. Young on 2/9/2015. (TMD) (Entered: 02/09/2015)
70 MOTION for Extension of Time to File Reply to April 20, 2015 re 56 Supplemental MOTION for Preliminary Injunction Second Consolidated Supplement, 57 Supplemental MOTION to Certify Class Second Supplement , filed by Petitioner DONALD LACY. (Attachments: # 1 Text of Proposed Order)(Varner, Sara) (Entered: 03/06/2015)

Case: 1:13-cv-811 As of: 01/21/2020 01:10 PM EST 7 of 13

03/06/2015 03/13/2015 03/23/2015 03/23/2015 04/01/2015 04/08/2015 04/16/2015
04/16/2015 04/22/2015 04/27/2015 04/28/2015 05/01/2015 05/18/2015 05/18/2015 05/20/2015
06/10/2015

71 REVISED CASE MANAGEMENT PLAN TENDERED, filed by Petitioner DONALD LACY . (Varner, Sara) (Entered: 03/06/2015)
72 ORDER granting 70 Motion for Extension of Time to File Reply to 4/20/2015 re 57 Supplemental MOTION to Certify Class Second Supplement, 56 and Supplemental MOTION for Preliminary Injunction Second Consolidated Supplement. Signed by Judge Richard L. Young on 3/13/2015. (TMD) (Entered: 03/13/2015)
73 ENTRY − Plaintiff's ex parte notice of discharge of attorney 67 is stricken. Signed by Judge Richard L. Young on 3/23/2015.(TMD) (Entered: 03/23/2015)
74 ORDER denying as moot 40 Motion for Preliminary Injunction; denying as moot 44 Motion for class certification and denying as moot 27 Motion for Preliminary Injunction. Signed by Judge Richard L. Young on 3/23/2015. (TMD) (Entered: 03/23/2015)
75 MOTION Requesting Status and Information filed by Petitioner DONALD LACY. (Attachments: # (1) Envelope)(TMB) Modified on 4/2/2015 (TMB). (Attachment 1 replaced on 4/2/2015) (TMB). (Entered: 04/02/2015)
76 ORDER granting 75 Motion for information. Clerk shall include a copy of the docket sheet with this Entry. (cm). Signed by Judge Richard L. Young on 4/8/2015. (TMD) (Entered: 04/08/2015)
77 Fourth MOTION for Extension of Time to File Reply to 5/18/15 re 56 Supplemental MOTION for Preliminary Injunction Second Consolidated Supplement, 57 Supplemental MOTION to Certify Class Second Supplement , filed by Petitioner DONALD LACY. (Attachments: # 1 Text of Proposed Order)(Varner, Sara) (Entered: 04/16/2015)
78 Second Revised CASE MANAGEMENT PLAN TENDERED, filed by Petitioner DONALD LACY . (Varner, Sara) (Entered: 04/16/2015)
79 ORDER granting 77 Motion for Extension of Time to File Reply to 5/18/2015 re 57 Supplemental MOTION to Certify Class Second Supplement, 56 Supplemental MOTION for Preliminary Injunction Second Consolidated Supplement.. Signed by Judge Richard L. Young on 4/22/2015. (TMD) (Entered: 04/22/2015)
80 ORDER: CASE MANAGEMENT PLAN APPROVED (Second Revised CMP). Dispositive Motions due by 9/1/2015. Discovery due by 7/1/2015. Signed by Magistrate Judge Debra McVicker Lynch on 4/27/2015.(SWM) (Entered: 04/27/2015)
81 MOTION to Withdraw Attorney Appearance of Laura Turner, filed by Respondent KEITH BUTTS. (Attachments: # 1 Text of Proposed Order)(Barrow, Frances) (Entered: 04/28/2015)
82 ORDER granting 81 Motion to Withdraw Attorney Appearance. Attorney Laura Ann Turner withdrawn.. Signed by Magistrate Judge Debra McVicker Lynch on 5/1/2015. (DW) (Entered: 05/04/2015)
83 REPLY in Support of Motion re 48 Supplemental MOTION FOR CLASS CERTIFICATION, 57 Supplemental MOTION to Certify Class Second Supplement, 44 MOTION FOR CLASS CERTIFICATION , filed by Petitioner DONALD LACY. (Attachments: # 1 Exhibit E, # 2 Exhibit F)(Varner, Sara) (Entered: 05/18/2015)
84 REPLY in Support of Motion re 27 MOTION for Preliminary Injunction, 56 Supplemental MOTION for Preliminary Injunction Second Consolidated Supplement, 40 Supplemental MOTION for Preliminary Injunction , filed by Petitioner DONALD LACY. (Varner, Sara) (Entered: 05/18/2015)
85 ORDER SETTING STATUS CONFERENCE. The court sets this case for a telephone status conference on June 10, 2015, at 1:00 p.m. Plaintiff's counsel and counsel for the defendants are to contact the court at 317.229.3630 to participate in the conference. Where multiple counsel representing a party are participating in the conference, those counsel should call in to the court on a single line. Signed by Magistrate Judge Debra McVicker Lynch on 5/20/2015. (BGT) (Entered: 05/20/2015)
86 NOTICE of Appearance by Jonathan Paul Nagy on behalf of Respondent KEITH BUTTS. (Nagy, Jonathan) (Entered: 06/10/2015)

Case: 1:13-cv-811 As of: 01/21/2020 01:10 PM EST 8 of 13

06/11/2015
06/30/2015 06/30/2015 07/09/2015
08/06/2015 08/10/2015 09/30/2015
01/06/2016
01/29/2016 01/29/2016 01/29/2016 01/29/2016 02/05/2016
02/29/2016 03/31/2016 05/02/2016 05/23/2016

87 MINUTE ORDER for proceedings held before Magistrate Judge Debra McVicker Lynch: Settlement Conference held on 6/10/2015. The conference was held and concluded without further order. Signed by Magistrate Judge Debra McVicker Lynch. (BAS) (Entered: 06/11/2015)
88 ***STRICKEN PER ORDER OF 7/9/2015***THIRD REVISED CASE MANAGEMENT PLAN TENDERED, filed by Petitioner DONALD LACY . (Varner, Sara) Modified on 7/9/2015 (CBU). (Entered: 06/30/2015)
89 MOTION FOR IMMEDIATE RULING ON CLASS CERTIFICATION MOTION & REQUEST FOR ORAL ARGUMENT, filed by Petitioner DONALD LACY. (Varner, Sara) (Entered: 06/30/2015)
90 ORDER STRIKING re 88 Case Management Plan. The court acts on motions, not proposed orders. If the parties wish to amend the case management deadlines in this matter, they should properly move for such relief and state the grounds. Signed by Magistrate Judge Debra McVicker Lynch on 7/9/2015.(CBU) (Entered: 07/09/2015)
91 MOTION FOR EXTENSION OF DEADLINES & ACCEPTANCE OF REVISED CASE MANAGEMENT PLAN, filed by Petitioner DONALD LACY. (Attachments: # 1 Third Revised Case Management Plan)(Varner, Sara) (Entered: 08/06/2015)
92 NOTICE of Obstruction to Access to Counsel, filed by Petitioner DONALD LACY (by Non−Party James E. Manley) (Attachments: # 1 Exhibits, # 2 Envelope) (NRN) (Entered: 08/11/2015)
93 ORDER granting 48 and 57 Supplemental Motions for Class Certification, denying as moot 56 Motion for Preliminary Injunction and granting 89 Motion for immediate ruling on class certification motion. Signed by Judge Richard L. Young on 9/30/2015. (TMD) (Entered: 09/30/2015)
94 ORDER denying for the present, Petitioners 91 Motion for extension of deadlines. They shall have through 2/01/16 to file a consolidated motion for preliminary injunction. The parties shall meet and confer and file a proposed notice to potential class members consistent with Rule 23(C) by February 1, 2016. Signed by Judge Richard L. Young on 1/6/2016. (TMD) (Entered: 01/06/2016)
95 NOTICE of Appearance by Gwendolyn M. Beitz on behalf of Petitioner DONALD LACY. (Beitz, Gwendolyn) (Entered: 01/29/2016)
96 STATUS REPORT by DONALD LACY. (Varner, Sara) (Entered: 01/29/2016)
97 NOTICE OF PROPOSED NOTICE PLAN, filed by Petitioner DONALD LACY, re 94 Order on Motion. (Attachments: # 1 Exhibit A−Notice Regarding Class Action) (Varner, Sara) (Entered: 01/29/2016)
98 Joint MOTION TO AMEND THE CASE MANAGEMENT PLAN, filed by Petitioner DONALD LACY. (Attachments: # 1 Fourth Revised Case Management Plan, # 2 Text of Proposed Order)(Varner, Sara) (Entered: 01/29/2016)
99 ORDER granting 98 Motion to amend case management plan. Parties 97 proposed notice plan is approved. Clerk to provide endorsed copy with this Entry (attached). Signed by Judge Richard L. Young on 2/5/2016. (Attachments: # 1 Notice plan) (TMD) (Entered: 02/05/2016)
100 Witness List Preliminary, filed by Petitioner DONALD LACY, Exhibit List Preliminary, filed by Petitioner DONALD LACY. (Varner, Sara) Modified on 3/1/2016 (NRN). (Entered: 02/29/2016)
101 Witness List (Preliminary), filed by Respondent KEITH BUTTS, Exhibit List (Preliminary), filed by Respondent KEITH BUTTS. (Nagy, Jonathan) (Entered: 03/31/2016)
102 Expert Disclosure, filed by Petitioner DONALD LACY. (Attachments: # 1 Exhibit A− Luis Rossell CV)(Varner, Sara) Modified text on 5/3/2016 (TMB). (Entered: 05/02/2016)
103 ENTRY Directing Further Proceedings − Class counsel shall have twenty−one days from the date of this Entry in which to review the habeas petitions listed in this Entry

Case: 1:13-cv-811 As of: 01/21/2020 01:10 PM EST 9 of 13

05/24/2016 05/25/2016
07/14/2016 07/15/2016 07/22/2016
08/01/2016 08/01/2016 08/05/2016 08/15/2016 09/13/2016
09/30/2016 10/07/2016 01/31/2017 03/31/2017 04/10/2017

and report whether any or all of the petitioners in the habeas petitions are members of the class in this case as defined in the Entry of September 30, 2015. Class counsel shall also report at that time if there are any other pending habeas petitions in this court which should be part of the class. The respondent shall have fourteen days from the filing of class counsel's report in which to file a response, if any. For any petition which counsel contends is a part of the class, counsel shall appear on behalf of the petitioner, if she has not already appeared, and file a notice of dismissal of the individual petition in favor of the class. Signed by Judge Richard L. Young on 5/23/2016.(NRN) (Entered: 05/23/2016)
104 MOTION for Extension of Time to July 15, 2016 , filed by Petitioner DONALD LACY. (Attachments: # 1 Text of Proposed Order)(Beitz, Gwendolyn) (Entered: 05/24/2016)
105 ORDER granting 104 Motion for Extension of Time. The deadline to review and report whether any or all of the petitioners in the habeas petitions are members of the class in this case is extended to July 15, 2016. Signed by Judge Richard L. Young on 5/25/2016. (NRN) (Entered: 05/25/2016)
106 MOTION for Extension of Time to August 5, 2016, filed by Petitioner DONALD LACY. (Attachments: # 1 Text of Proposed Order)(Varner, Sara) (Entered: 07/14/2016)
107 Submission of Signature Requirement re 106 MOTION for Extension of Time to August 5, 2016 by DONALD LACY. (Attachments: # 1 Text of Proposed Order)(Beitz, Gwendolyn) (Entered: 07/15/2016)
108 ORDER granting 106 Motion for Extension of deadline to review and report that the deadline to review and report as to class membership of pending habeas actions, file appearances and move to dismiss individual petitions in favor of the class is extended to August 5, 2016. Signed by Judge Richard L. Young on 7/22/2016. (TMD) (Entered: 07/22/2016)
109 Submission FIFTH REVISD CASE MANAGMENT PLAN, filed by Petitioner DONALD LACY. (Varner, Sara) (Entered: 08/01/2016)
110 Joint MOTION TO AMEND THE CASE MANAGMENT PLAN, filed by Petitioner DONALD LACY. (Varner, Sara) (Entered: 08/01/2016)
111 REPORT ON PENDING HABEAS PETITIONS by DONALD LACY. (Varner, Sara) (Entered: 08/05/2016)
112 ENTRY − The joint motion to amend the case management plan 110 is granted. The Fifth Revised Case Management Plan is approved as submitted. Signed by Judge Richard L. Young on 8/15/2016. (JRB) (Entered: 08/15/2016)
113 Entry Directing Further Proceedings − Counsel for the petitioner shall have through September 30, 2016, to provide an update of the status of the petitions identified in the Report filed on August 5, 2016. Signed by Judge Richard L. Young on 9/13/2016.(JRB) (Entered: 09/13/2016)
114 MOTION for Extension of Time to Provide an Update to the Report on Pending Habeas Petitions , filed by Petitioner DONALD LACY. (Attachments: # 1 Text of Proposed Order)(Varner, Sara) Modified on 10/3/2016 (JRB). (Entered: 09/30/2016)
115 ORDER granting 114 Motion for Extension of Time to Update the Status of the Petitions to 10/21/2016. No further extensions of time are anticipated. Signed by Judge Richard L. Young on 10/7/2016. (JRB) (Entered: 10/07/2016)
116 Sixth Revised CASE MANAGEMENT PLAN TENDERED, filed by Petitioner DONALD LACY . (Varner, Sara) (Entered: 01/31/2017)
117 REPORT of Luis Rosell, Psy.D. by DONALD LACY. (Attachments: # 1 Expert Report of Luis Rosell, Psy.D.)(Varner, Sara) (Entered: 03/31/2017)
118 Entry Setting Hearing − The parties' Sixth Revised Case Management Plan is approved as submitted. In that filing, the parties request a hearing in August of 2017. Accordingly, this matter is set for a hearing on AUGUST 24, 2017, at 2:00 p.m. in Courtroom 349, United States Courthouse, 46 East Ohio Street, Indianapolis, IN

Case: 1:13-cv-811 As of: 01/21/2020 01:10 PM EST 10 of 13

05/08/2017 05/17/2017 06/12/2017
07/10/2017 07/10/2017 07/10/2017 07/10/2017
07/10/2017

46204. The parties shall file witness and exhibit lists and prehearing briefs as contemplated in the Sixth Revised Case Management Plan. Signed by Judge Richard L. Young on 4/10/2017.(JRB) (Entered: 04/10/2017)
119 Correspondence REQUESTING COPY of Case Docket Sheet, filed by Cleverly Lockhart. Copy/Copies provided via US Mail. (Attachments: # 1 Envelope) (JRB) (Entered: 05/08/2017)
120 Joint MOTION for Continuance and Motion for Entry of Dispositive Motions Briefing Schedule, filed by Respondent KEITH BUTTS. (Attachments: # 1 Text of Proposed Order Granting Motion for Continuance and for Entry of Dispositive Motions Briefing Schedule)(Nagy, Jonathan) (Entered: 05/17/2017)
121 Entry − The parties' Joint Motion for Continuance, 120 is granted in part and denied in part consistent with the following: The hearing set for August 24, 2017, is vacated and the action shall proceed in accordance with the following schedule. Discovery shall be completed by June 19, 2017. Petitioner shall file a supplement to the petition for a writ of habeas corpus by July 10, 2017. Respondent's response to the supplement must be filed no later than 45 days after the filing of the petitioner's summary judgment motion, and in any event no later than August 24, 2017. Petitioner's reply in support of the habeas petition must be filed no later than 15 days after the filing of the response, and in any event, no later than September 8, 2017. If the respondent believes a surreply is necessary, it shall be filed by September 15, 2017. Signed by Judge Richard L. Young on 6/12/2017.(JRB) (Entered: 06/12/2017)
122 AMENDED COMPLAINT under 28 U.S.C. 2254 against KEITH BUTTS, filed by DONALD LACY.(Varner, Sara) (Entered: 07/10/2017)
123 First MOTION for Summary Judgment , filed by Petitioner DONALD LACY. (Varner, Sara) (Entered: 07/10/2017)
124 Designation of Evidence re 123 First MOTION for Summary Judgment , filed by Petitioner DONALD LACY. (Varner, Sara) (Entered: 07/10/2017)
125 BRIEF/MEMORANDUM in Support re 123 First MOTION for Summary Judgment , filed by Petitioner DONALD LACY. (Attachments: # 1 Exhibit A− Deming Declaration, # 2 Exhibit B− Petitioners' Indiana Case Summaries, # 3 Exhibit C− IDOC Executive Directive #15−13, # 4 Exhibit D− INSOMM Program Participation Notification, # 5 Exhibit E− IDOC Disciplinary Code for Adult Offenders, Appendix I, # 6 Exhibit F− IDOC Disciplinary Code for Adult Offenders, # 7 Exhibit G− INSOMM Request for Temporary Exemption, # 8SEALED Exhibit H− Donald Lacy INSOMM Conduct File & Treatment Notes, # 9 SEALED Exhibit I− George Sanders INSOMM Treatment Notes Excerpt, # 10 Exhibit J− INSOMM Informed Consent, # 11 Exhibit K− INSOMM Sex Offender Participation Agreement, # 12 Exhibit L− INSOMM Sex Offender Questionnaire, # 13 Exhibit M− INSOMM Orientation Workbook, # 14 Exhibit N− INSOMM Low Risk Core Workbook, # 15 Exhibit O− INSOMM Medium Risk Core Workbook, # 16 Exhibit P− INSOMM High Risk Core Workbook, # 17 SEALED Exhibit Q− Michael Parker Conduct Report & Offender Complaint, # 18 SEALED Exhibit R− Richard Dobeski Polygraph Report, # 19SEALED Exhibit S− Quinton Bonner Polygraph Report, # 20 SEALED Exhibit T− Lionel May Polygraph Report, # 21 SEALED Exhibit U− Donald Wrobel Polygraph & Disciplinary Action, # 22 SEALED Exhibit V− Lawrence Greer−Bey INSOMM Conduct Report & Treatment Notes, # 23 Exhibit W− Lewis Exemption, # 24 Exhibit X− Respondent's Discovery Response Excerpt, # 25 Exhibit Y− Donald Lacy Indiana Offender Data, # 26 Exhibit Z− Lawrence Greer−Bey Indiana Offender Data, # 27 Exhibit AA− Frederick Holmes−Bey Indiana Offender Data, # 28 SEALED Exhibit AB− Frederick Holmes−Bey INSOMM Conduct File & Treatment Notes, # 29 Exhibit AC− Allan Kirkley Indiana Offender Data, # 30 SEALED Exhibit AD− Allan Kirkley INSOMM Conduct File & Treatment Notes, # 31 Exhibit AE− Offender Orientation Form, # 32 Exhibit AF− INSOMM Polygraph Sex History Questionnaire, # 33 SEALED Exhibit AG− Larry Smith Polygraph Report)(Varner, Sara) Modified on 7/18/2017 (TMD). (Entered: 07/10/2017)
126 MOTION to Maintain Document Under Seal 127 Brief/Memorandum in Support, 123 First MOTION for Summary Judgment , filed by Petitioner DONALD LACY. (Attachments: # 1 Text of Proposed Order)(Varner, Sara) Modified on 7/11/2017 (JRB). (Entered: 07/10/2017)

Case: 1:13-cv-811 As of: 01/21/2020 01:10 PM EST 11 of 13

07/10/2017
07/18/2017 08/21/2017 08/21/2017 08/22/2017
08/31/2017 09/12/2017 09/15/2017 09/28/2017 09/28/2017
10/03/2017

127 SEALED Exhibits, re 125 Brief/Memorandum in Support, filed by Petitioner DONALD LACY. (Attachments: # 1 Exhibit H− Donald Lacy INSOMM Conduct File & Treatment Notes, # 2 Exhibit I− George Sanders INSOMM Treatment Notes Excerpt, # 3 Exhibit Q− Michael Parker Conduct Report & Offender Complaint, # 4 Exhibit R− Richard Dobeski Polygraph Report, # 5 Exhibit S− Quinton Bonner Polygraph Report, # 6 Exhibit T− Lionel May Polygraph Report, # 7 Exhibit U− Donald Wrobel Polygraph & Disciplinary Action, # 8 Exhibit V− Lawrence Greer−Bey INSOMM Conduct File & Treatment Notes, # 9 Exhibit AB− Frederick Holmes−Bey INSOMM Conduct File & Treatment Notes, # 10 Exhibit AD− Allan Kirkley INSOMM Conduct File & Treatment Notes, # 11 Exhibit AG− Larry Smith Polygraph Report)(Varner, Sara) (Entered: 07/10/2017)
128 ORDER granting 126 Motion to Seal Exhibits to Petitioners' 123 First MOTION for Summary Judgment and 125 Brief/Memorandum in Support. Signed by Judge Richard L. Young on 7/18/2017. (TMD) (Entered: 07/18/2017)
129 *** PLEASE DISREGARD. REFILED AT 130 *** Unopposed MOTION for Extension of Time to File Response to August 31, 2017 re 123 First MOTION for Summary Judgment and to File His Cross−Motion for Summary Judgment, filed by Respondent KEITH BUTTS. (Nagy, Jonathan) Modified on 8/22/2017 (JRB). Modified on 10/26/2017 (TMD). (Entered: 08/21/2017)
130 Unopposed MOTION for Extension of Time to File Response to August 31, 2017 re 123 First MOTION for Summary Judgment and Cross−Motion for Summary Judgment, filed by Respondent KEITH BUTTS. (Attachments: # 1 Text of Proposed Order Granting Defendants' Motion for Extension of Time)(Nagy, Jonathan) (Entered: 08/21/2017)
131 ORDER granting 130 Motion for Extension of Time to File Response to 123 First MOTION for Summary Judgment up to and including 8/31/17 − Petitioners shall have up 15 days after the filing of the response, and in any event, no later than September 15, 2017 to file their reply in support of the habeas petition. NO FURTHER EXTENSIONS OF TIME ARE ANTICIPATED. IT IS FURTHER ORDERED that if the respondent believes a sur−reply is necessary, it shall be filed by September 15, 2017. Copy sent to Petitioner via US Mail. Signed by Judge Richard L. Young on 8/22/2017. (JRB) (Entered: 08/22/2017)
132 Cross MOTION for Summary Judgment and Response in Opposition to Petitioner's Motion for Summary Judgment, filed by Respondent KEITH BUTTS. (Nagy, Jonathan) (Entered: 08/31/2017)
133 Correspondence REQUESTING COPY of Case Docket Sheet, filed by Cleverly Lockhart. Copy/Copies provided via US Mail. (Attachments: # 1 Envelope) (JRB) (Entered: 09/12/2017)
134 REPLY in Support of Motion re 123 First MOTION for Summary Judgment and Response in Opposition re 132 Cross Motion for Summary Judgment, filed by Petitioner DONALD LACY. (Varner, Sara) (Entered: 09/15/2017)
135 Entry Discussing Petition for a Writ of Habeas Corpus − The class petition for a writ of habeas corpus is therefore granted. The petitioners' motion for summary judgment, 123 , is granted and the cross−motion for summary judgment, 132 , is denied. The disciplinary actions and sanctions for failing to participate in the SOMM program must be vacated. SEE ORDER. Signed by Judge Richard L. Young on 9/28/2017. (JRB) (Entered: 09/28/2017)
136 JUDGMENT GRANTING PETITION FOR WRIT OF HABEAS CORPUS − The petition for writ of habeas corpus of the petitioner−class is granted; and the disciplinary proceedings and sanctions of any member of the petitioner−class based on their refusal to participate in the Indiana Department of Correction SOMM program shall be forthwith vacated and a new projected release date established for such person. Signed by Judge Richard L. Young on 9/28/2017.(JRB) (Main Document 136 replaced on 10/30/2017) (MAT). (Entered: 09/28/2017)
137 Emergency MOTION to Stay Proceedings Pending Appeal, filed by Respondent KEITH BUTTS. (Attachments: # 1 Text of Proposed Order Granting Emergency Motion to Stay Proceedings Pending Appeal)(Nagy, Jonathan) (Entered: 10/03/2017)

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10/11/2017 10/17/2017 10/30/2017 10/30/2017
10/30/2017 10/30/2017 10/30/2017 10/30/2017 10/31/2017 11/13/2017 11/16/2017 12/15/2017 12/26/2017 01/16/2018 02/16/2018 03/07/2018
08/16/2018 08/16/2018 08/21/2018
05/17/2019
06/24/2019

138 Submission of Letter from James Manley Regarding Claims. (Attachments: # 1 Envelope)(APD) (Entered: 10/12/2017)
139 RESPONSE in Opposition re 137 Emergency MOTION to Stay Proceedings Pending Appeal , filed by Petitioner DONALD LACY. (Varner, Sara) (Entered: 10/17/2017)
140 ORDER denying 137 Motion to Stay Pending Appeal − SEE ORDER. Signed by Judge Richard L. Young on 10/30/2017. (JRB) (Entered: 10/30/2017)
141 NOTICE OF APPEAL as to 135 Entry, 136 Closed Judgment, filed by Respondent KEITH BUTTS. (Filing fee $505, receipt number 0756−4606161) (Nagy, Jonathan) Modified on 10/30/2017 to add link to additional document (MAT). (Entered: 10/30/2017)
142 DOCKETING STATEMENT by KEITH BUTTS re 141 Notice of Appeal (Nagy, Jonathan) (Entered: 10/30/2017)
143 SEVENTH CIRCUIT TRANSCRIPT INFORMATION SHEET by KEITH BUTTS re 141 Notice of Appeal (Nagy, Jonathan) (Entered: 10/30/2017)
144 PARTIES' SHORT RECORD re 141 Notice of Appeal − Instructions for Attorneys and Designation of Record information attached. (MAT) (Entered: 10/30/2017)
145 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 141 Notice of Appeal. − for Court of Appeals Use Only. (MAT) (Entered: 10/30/2017)
146 USCA Case Number 17−3256 for 141 Notice of Appeal filed by KEITH BUTTS. (MAT) (Entered: 10/31/2017)
147 DESIGNATION of Record on Appeal by KEITH BUTTS re 141 Notice of Appeal (Attachments: # 1 Exhibit Docket Sheet)(Nagy, Jonathan) (Entered: 11/13/2017)
148 Letter to Court from Brian Andert. (Attachments: # 1 Envelope) (JRB) (Entered: 11/16/2017)
149 Letter to Court containing Affidavit and Exhibits from Johnnie Lee Gipson. (Attachments: # 1 Exhibit, # 2 Envelope) (APD) (Entered: 12/18/2017)
150 MOTION for Court to order relief filed by Johnnie Lee Gipson. (Attachments: # 1 Envelope)(CBU) (Entered: 12/27/2017)
151 AFFIDAVIT of Johnnie Lee Gipson. (Attachments: # 1 Envelope)(JRB) (Entered: 01/19/2018)
152 MOTION forStatus of Ruling filed by Johnnie Lee Gipson. (JRB) (Entered: 02/22/2018)
153 ORDER terminating 150 Motion for Court Order and 152 Motion for Status − IfGipson wishes to challenge disciplinary action taken against him, he should file a petition for a writ of habeas corpus. SEE ORDER. Copy sent to party via US Mail. Signed by Judge Richard L. Young on 3/7/2018. (JRB) (Entered: 03/07/2018)
154 MOTION for Summary Judgment, filed by Petitioner DONALD LACY. (Attachments: # 1 Exhibit, # 2 Envelope)(JRB) (Entered: 08/20/2018)
155 AFFIDAVIT of Mark A Cade by DONALD LACY. (Attachments: # 1 Envelope)(JRB) (Entered: 08/20/2018)
156 ENTRY − The motion for summary judgment, 154 , is terminated. If Cade wishes to challenge disciplinary action taken against him, he should contact class counsel or file a petition for a writ of habeas corpus. SEE ORDER. Copy sent to Petitioner via US Mail. Signed by Judge Richard L. Young on 8/21/2018. (JRB) (Entered: 08/21/2018)
157 MANDATE of USCA as to 141 Notice of Appeal filed by KEITH BUTTS (USCA #17−3256) − The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on this date. (LBT) (Entered: 05/17/2019)
158 NOTICE of Appearance on behalf of Plaintiff DONALD LACY. (Ciobanu, Andrea) Modified on 6/25/2019 (JRB). (Entered: 06/24/2019)

Case: 1:13-cv-811 As of: 01/21/2020 01:10 PM EST 13 of 13
01/08/2020 159 STATUS REPORT and Request for Telephonic Status Conference by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Setting Telephonic Status Conference)(Ciobanu, Andrea) Modified on 1/9/2020 (JRB). (Entered: 01/08/2020)
Case #: 1:13−cv−00811−RLY−DML