* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 22 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTHONY RANDAZZO MCBAYNE, Plaintiff - Appellant,

v. MICHAEL V. PUGH, in his individualcapacity, Former Warden, ADXFlorence; DANIEL SHOFF, in his individual capacity, Former S.I.A., ADX-Florence; MARK COLLINS, inhis individual capacity, ADXFlorence, Defendants - Appellees. No. 03-1228 (D.C. No. 03-Z-549) (D. Colo.)

ORDER AND JUDGMENT *

Before KELLY , BRISCOE , and LUCERO , Circuit Judges. **
Plaintiff-Appellant Anthony McBayne, a federal pris oner incarcerated at- 2 -

United States Penitentiary (USP) in Florence, Color ado, appeals from the district court’s dismissal of his complaint for damages file d pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971). The district court dismissed the complaint as legally f rivolous under the standard set forth in 28 U.S.C. § 1915A(b). Because we agree wi th the district court that Mr. McBayne has not alleged a violation of a protected constitutional right, we affirm the dismissal of this action as frivolous under § 1 915A(b). Mr. McBayne is a federal prisoner who from 1997 to 2001 was incarcerated at USP Florence, Colorado. Upon arrival at USP Flo rence in 1997, Mr. McBayne was accepted into the pre-transfer program through which inmates may earn a transfer to a lower security facility. Mr. McBayne alleges that in December 2000, prison officials approached him requesting his assi stance with an ongoing investigation into allegations that prison guards w ere accepting money and gifts from inmates in exchange for contraband. Mr. McBay ne denied any culpability and refused to cooperate. Following his refusal, M r. McBayne was issued two reports of misconduct, which caused his removal fro m the pre-transfer program. The two misconduct reports were later dismissed andMr. McBayne was reinstated to the pre-transfer program. He was subsequently transferred to USP Allenwood, Pennsylvania. Mr. McBayne further alleges that once he arrived atAllenwood, federal- 3 -

investigators continued to request his assistance w ith their ongoing investigation. He continued to refuse. In April 2002, Mr. McBayne was transferred back to USP Florence because of his continued refusal to cooper ate with investigators. The specific reason for the transfer was his refusal to take a polygraph exam concerning information he previously provided. R. Doc. 4, Ex. 8. To succeed in a Bivens action, Mr. McBayne must demonstrate that federal officials violated his constitutional rights while acting under color of federal law. Dry v. United States , 235 F.3d 1249, 1255 (10th Cir. 2000). Specifical ly, Mr. McBayne alleges that defendants retaliated against him because he elected to exercise his constitutional right against self-incr imination as guaranteed by the Fifth Amendment. The district court dismissed the majority of Mr. Mc Bayne’s claims due to his failure to exhaust administrative remedies befo re filing suit as required by 42 U.S.C. § 1997e(a). See Porter v. Nussle , 534 U.S. 516, 532 (2002). Mr. McBayne appeals this determination, but a review of the record indicates that the district court was correct that Mr. McBayne had fai led to exhaust remedies for every claim except that of retaliatory treatment byprison staff for exercise of his constitutional right against self-incrimination. W e therefore consider only that claim on appeal. Though commitment to a penal facility may limit an inmate in the exercise- 4 -

of his constitutional rights, inmates may not be re taliated against for exercising those constitutional rights they do retain. Frazie r v. DuBois , 922 F.2d 560, 561 (10th Cir. 1990). An inmate must prove that “but f or” the retaliatory motive, the adverse action would not have occurred. Peterson v . Shanks , 149 F.3d 1140, 1144 (10th Cir. 1998). In his pro se brief, Mr. Mc Bayne alleges that, contrary to the holding of the district court, his refusal to c ooperate with federal investigators constituted an invocation of his Fifth Amendment ri ght against self-incrimination and was motivated by a desire to avoid criminal pro secution. For two reasons, we disagree. First, Mr. McBayne did not invoke his Fi fth Amendment rights at the time of his initial questioning and he may not resu rrect them now. Second, the district court reasonably interpreted Mr. McBayne’s claim to assert a right not to cooperate with authorities, rather than a violationof any constitutional right. The fact that Mr. McBayne is a federal prisoner doe s not serve to strip him of his privilege against self incrimination. McKun e v. Lile , 536 U.S. 24, 36 (2002) (plurality opinion). Fifth Amendment protec tions, however, may not be invoked retroactively. See Roberts v. United States , 445 U.S. 552, 559 (1980) (“The Fifth Amendment privilege against compelled s elf-incrimination is not selfexecuting. At least where the Government has no su bstantial reason to believe that the requested disclosures are likely to be inc riminating, the privilege may not be relied upon unless it is invoked in a timely fas hion.”); United States v. Rogers ,- 5 -

921 F.2d 975, 979 (10th Cir. 1990). Plaintiff admi ts to cooperating with the authorities and giving a statement, but then refusi ng to sign a statement, take any polygraph exam, or further cooperate. R. Doc. 5 at20-23, 25, 27-28, 31-32, 36. On May 2, 2002, Mr. McBayne wrote a letter remindin g the warden that McBayne had “a constitutional right not to be a witness against [him]self and not to cooperate with any law enforcement agents in the ir investigation where [he] may be a defendant.” R. Doc. 4, Ex. 7 at 2. Howeve r, in his lengthy affidavit of March 3, 2003, Mr. McBayne repeatedly states that h e denied any involvement in the offenses being investigated. See , e.g. , R. Doc. 5 at 1, 4. Consistent with 42 U.S.C. § 1915A, we think it was reasonable for the district court to construe Mr. McBayne’s complaint as asserting a right not to coo perate with law enforcement authorities, rather than asserting a right to be fr ee of compulsory selfincrimination. Plainly, a “right to remain silent” does not encompass the former, as concealment of crime has always been disfavored. See 18 U.S.C. § 4 (misprision of a felony); Roberts , 445 U.S. at 557-58; Branzburg v. Hays , 408 U.S. 665, 696-97 (1972). Therefore, we AFFIRM the district court’s dismissal of Mr. McBayne’s action. Mr. McBayne is granted leave to proceed informa pauperis. We would- 6 -

remind Mr. McBayne that he must continue to make payments until the entire filing fee has been paid.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge