1The Honorable John B. Jones, United States District Judge, United States

District Court for the District of South Dakota, sitting by designation.

2Plaintiff is a prisoner incarcerated with the Iowa Department of Corrections

who filed his claims under a fictitious name to protect himself from possible harm

should it be known that he is a convicted child molester.

3The Honorable Robert W. Pratt, United States District Judge for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-4182

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John Doe, an Iowa State Prisoner, *

*

Appellant, * Appeal from the United States

* District Court for the Southern

v. * District of Iowa.

*

Walter Sauer, et al., *

*

Appellees. *

_____________

 Submitted: June 14, 1999 

Filed: July 29, 1999

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Before HANSEN, MAGILL, Circuit Judges, and JONES1, District Judge.

_____________

JONES, District Judge.

Plaintiff John Doe2 appeals from a final judgment entered by the district court3

granting the defendants, officials of the Iowa State Board of Parole (“parole board”),
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summary judgment on Doe’s claims under 42 U.S.C. § 1983 for violation of his Fifth

and Fourteenth Amendment rights against self-incrimination. We affirm.

I. BACKGROUND

Doe was convicted of sexual abuse of a minor in Iowa in 1991 and sentenced

to a term of imprisonment of 25 years. Doe’s conviction was affirmed by the Iowa

Supreme Court. The parole board first considered Doe for parole in 1992. Citing the

seriousness of Doe’s offense, the parole board denied Doe’s request for parole. The

parole board denied parole to Doe five additional times from 1993 to 1997, again

citing the seriousness of Doe’s offense as the reason for denial of parole. Beginning

in 1993, the parole board recommended Doe enter a sexual offender treatment

program (“SOTP”) offered by the Iowa Department of Corrections. Doe testified in

his deposition that he has refused to enter the SOTP because he refuses to admit guilt

concerning any act of sexual abuse, including his offense of conviction. In order to

successfully complete the SOTP, an inmate convicted of a sex offense must admit he

has a sexual problem. Doe has never admitted that he is guilty of the sex offense for

which he was convicted.

Doe alleges a prerequisite for successful completion of the SOTP is that an

inmate admit guilt not only for the offense of conviction, but also for other acts of

sexual abuse without any grant of immunity from prosecution for such admissions.

Doe’s contention is that the SOTP’s asserted requirement that an offender admit

offenses other than the offense of conviction violates his right against selfincrimination in violation of the Fifth and Fourteenth Amendments. Doe contends

the district court erred in granting summary judgment to the parole board without

affording him the opportunity for adequate discovery on the issue of whether

completion of the SOTP is or is not a prerequisite for parole and on the issue of

whether successful completion of the SOTP requires an inmate to admit guilt to

offenses other than the offense of conviction.
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The parole board contends no evidence exists in the record that it denied parole

to Doe for any reason other than the seriousness of his crime. The denial letters sent

to Doe from the parole board state “[i]n view of the seriousness of the crime for

which you were convicted, the Board believes that a parole at this time would not be

in the best interest of society.” Beginning in 1993, the denial letters further state

“[t]he Board would like to see your involvement during the coming year in

recommended Sex Offender Treatment Program.” Richard E. George, the Executive

Director for the parole board, submitted an affidavit in support of the summary

judgment motion. George explained acceptance of responsibility is an important step

in inmate rehabilitation and Doe’s participation in the recommended SOTP “would

enhance his chance of being paroled, but is not a prerequisite of parole.” 

The district court granted summary judgment in favor of defendants,

concluding no genuine issue of material fact existed regarding the reason parole was

denied to Doe. The district court concluded the record established that the parole

board denied Doe parole because of the seriousness of his offense and not for any

other reason, including refusal to participate in his rehabilitation or invoking his right

against self-incrimination.

II. DECISION

We review a grant of summary judgment de novo, applying the same standard

as the district court. See Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir.

1998). Summary judgment shall be granted if “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A dispute as to a

material fact is genuine if there is sufficient evidence for a reasonable jury to return

a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). The moving party for summary judgment bears the initial burden of
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demonstrating the absence of a genuine issue of fact for trial. Celotex Corp. v.

Cattrett, 477 U.S. 317, 323 (1986). Once the moving party satisfies its initial burden,

the nonmoving party must go beyond the pleadings and, by its own affidavits or

discovery, “set forth specific facts showing that there is a genuine issue for trial.”

Fed.R.Civ.P. 56(e).

Although Doe contends he was denied parole for his refusal to participate in

the SOTP, and not solely because of the seriousness of his offense, Doe has not

offered any evidence sufficient to create a genuine issue of material fact on this issue.

Doe also alleges successful completion of the SOTP requires him to admit to sexual

offenses other than the offense of conviction. There is no evidence in the record to

support this allegation, other than Doe’s conclusory statements. Doe contends that

if he would have been given more time to conduct discovery, he would have been

able to produce some evidence to support these allegations. Doe, however, did not

ask the district court for additional time to conduct discovery.

We review for abuse of discretion the district court’s determination that a claim

is ripe for summary judgment and that no further discovery is needed. See

Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078, 1081 (8th Cir. 1993). A

party seeking to delay resolution of a summary judgment motion can do so by filing

a request under Federal Rule of Civil Procedure 56(f) to postpone the decision until

the completion of adequate discovery. See In re Temporomandibular Joint (TMJ)

Implants Products Liability Litigation, 113 F.3d 1484, 1490 (8th Cir. 1997). If the

nonmoving party does not file a Rule 56(f) motion or ask for a continuance, “a court

generally does not abuse its discretion in granting summary judgment based on the

record before it.” Id. Doe did not file a Rule 56(f) motion or otherwise request a

continuance, and we find the district court did not abuse its discretion in ruling on the

parole board’s motion for summary judgment.
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Even if there was a genuine issue of material fact regarding whether the parole

board denied parole to Doe because he failed to participate in the SOTP, he would not

prevail on his § 1983 claim. The Fifth Amendment provides that no person “shall be

compelled in any criminal case to be a witness against himself.” The Supreme Court

held that “[t]he Amendment not only protects the individual against being

involuntarily called as a witness against himself in a criminal prosecution but also

privileges him not to answer official questions put to him in any other proceeding,

civil or criminal, formal or informal, where the answers might incriminate him in

future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).

Furthermore, a state may not impose substantial penalties on a person who decides

to invoke his right against self-incrimination. Minnesota v. Murphy, 465 U.S. 420,

434 (1984).

Notwithstanding the prohibition on the state of penalizing a person who

invokes his Fifth Amendment right, “prison officials may constitutionally deny

benefits to a prisoner who, by invoking his privilege against self-incrimination,

refuses to make statements necessary for his rehabilitation, as long as their denial is

based on the prisoner’s refusal to participate in his rehabilitation and not his

invocation of his privilege.” McMorrow v. Little, 109 F.3d 432, 436 (8th Cir. 1997)

(citing Asherman v. Meachum, 957 F.2d 978, 980-83 (2nd Cir. 1992)). Thus the

denial of parole is permissible if it is based on the prisoner’s refusal to participate in

his rehabilitation and not based on his invocation of his privilege. See Asherman,

957 F.2d at 982-83. Doe has refused to admit he committed the offense for which he

was convicted, and as observed by the Second Circuit, “[a]n inmate who is unwilling

to admit to particular criminal activity is unlikely to benefit from a rehabilitative

process aimed at helping those guilty of that activity.” Johnson v. Baker, 108 F.3d

10, 12 (2nd Cir. 1997) (holding a policy requiring an inmate to admit to sexual

offenses before admission to sex offender treatment program did not violate the

inmate’s right against self-incrimination). Therefore, even if the parole board denied

parole to Doe because he refused to participate in the SOTP, the denial was based on
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Doe’s refusal to participate in his rehabilitation and was not based on Doe’s

invocation of his privilege against self-incrimination.

III. CONCLUSION

The judgment of the district court is affirmed.

A true copy.

Attest:

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