United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1065

___________

Randy Lee Closs, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the District of

* South Dakota.

Douglas Weber, Warden of the *

South Dakota State Penitentiary, *

*

Appellant. *

___________

Submitted: October 19, 2000

Filed: January 30, 2001

___________

Before WOLLMAN, Chief Judge, and BEAM and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Fourteen years after his conviction in state court, Randy Closs was granted a

conditional parole. The parole agreement, which he signed, stated that "[i]n

consideration" of being granted parole he would comply with instructions regarding his

parole supervision and with other "special limitations and conditions." Mr. Closs had

a long-term diagnosis of schizophrenia, and as part of the "special limitations and

conditions" of his parole he agreed to "[b]egin and maintain psychological or
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psychiatric treatment at a facility or with a psychologist or psychiatrist approved by the

[Board of Pardons and Parole]."

In compliance with the parole agreement, Mr. Closs voluntarily entered a boardapproved mental health facility for psychiatric treatment. At the facility, his attending

psychiatrist prescribed a psychotropic drug for him. Psychotropic drugs are "commonly

used in treating mental disorders such as schizophrenia" by altering the chemical

balance in the brain, see Washington v. Harper, 494 U.S. 210, 214 (1990). Mr. Closs

initially refused to take the prescribed medication. After his parole agent reportedly

explained to him that "cooperation with his treatment was imperative and that any

future refusal to do so would ... result in a [parole] violation," he took the drug for

about two days. On the next day, Mr. Closs refused a scheduled increase in his

medication, and for the next two days he refused to take the medication at all. The

facility then discharged him to his parole agent.

At his parole violation hearing, Mr. Closs testified that the parole agreement did

not require him to take medication, and that he quit taking the medicine because it

caused him side effects, including a dry mouth, stiff muscles, and drowsiness. The

board concluded that he had violated his parole conditions by failing to comply with

"all instructions affecting [his] supervision." As a result, the board revoked Mr. Closs's

parole and reduced his good-time credits by two years. See S.D. Codified Laws

§ 24-15-24. 

Mr. Closs petitioned for a writ of habeas corpus in state court, see S.D. Codified

Laws § 21-27-1, contending that his parole revocation violated due process. The state

court denied Mr. Closs's petition without opinion, but it granted him a certificate of

probable cause to appeal. See S.D. Codified Laws § 21-27-18.1. The state supreme

court affirmed without opinion the trial court's denial of Mr. Closs's habeas petition.

See Closs v. Weber, 596 N.W.2d 734 (S.D. 1999).
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Mr. Closs then filed a petition under 28 U.S.C. § 2254 in federal court, claiming

that he had a right not to take his medication, that his due process rights were therefore

violated when the board revoked his parole for failure to take his medication while in

a mental health facility, and that state law regarding mental health treatment was not

followed. The district court granted Mr. Closs's § 2254 petition in part and ordered that

his good-time credits be restored to him. See Closs v. Weber, 87 F. Supp. 2d 921, 936

(D. S.D. 1999).

The board, through the warden of the South Dakota State Penitentiary, appeals

the district court's order. We reverse. 

I.

We review the district court's conclusions of law de novo. See Whitmore v.

Kemna, 213 F.3d 431, 432 (8th Cir. 2000). The relevant facts in this case are

undisputed, and therefore, with regard to any claim adjudicated on the merits in state

court and rejected there, we may affirm the district court's grant of a writ of habeas

corpus only if the state court adjudication "resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the [United States] Supreme Court," see 28 U.S.C. § 2254(d)(1); see

also Evans v. Rogerson, 223 F.3d 869, 871-72 (8th Cir. 2000). "[C]learly established

Federal law, as determined by the Supreme Court," refers to the Supreme Court's

holdings, not dicta, that were in existence at the time of the state court's decision. See

Taylor v. Williams, 120 S. Ct. 1495, 1523 (2000). The summary nature of a state

court's decision does not affect the applicable standard of review under § 2254(d)(1).

See James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999), cert. denied, 120 S. Ct.

994 (2000). 
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Under § 2254(d)(1), a state court decision is "contrary to" established federal

law if it contradicts the governing Supreme Court cases on a question of law or if, when

confronting facts "materially indistinguishable," Williams, 120 S. Ct. at 1520, from the

facts addressed in a Supreme Court decision, it reaches a different result. See id. at

1519-20, 1522. We have located no Supreme Court legal determination contradicted

by the state court's decision in this case, and the Supreme Court has not confronted

facts indistinguishable from those presented here. We therefore conclude that the state

court's denial of Mr. Closs's habeas corpus petition was not "contrary to" clearly

established federal law, see § 2254(d)(1). 

Because the state court's decision was not contrary to Supreme Court precedent,

we may uphold the district court's grant of relief to Mr. Closs only if the state court

decision involved an "unreasonable application" of federal law under § 2254(d)(1). A

writ may not issue based on the state court's "unreasonable application" of Supreme

Court precedent, id., solely because a federal court concludes that the state court

decision erroneously applied the law; the state court's erroneous application of the law

"must also be unreasonable," see Williams, 120 S. Ct. at 1522. Whether the state

court's application of federal law was unreasonable is an objective inquiry. See id. at

1521.

II.

Although the Supreme Court has not addressed the treatment of mentally ill

parolees, the Court, prior to Mr. Closs's 1997 parole date, had considered the

fourteenth amendment due process rights of state prisoners who are involuntarily

treated for mental illness. In Vitek v. Jones, 445 U.S. 480, 491 (1980), the Court held

that the due process clause requires that "appropriate procedural protections" be

observed before a state prisoner may be involuntarily transferred to a mental hospital.
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With regard to medication, the Court held ten years after Vitek that a state prison

policy may confer upon prisoners "a right to be free from the arbitrary administration"

of psychotropic drugs, Harper, 494 U.S. at 221, and that the due process clause itself

provides inmates "a significant liberty interest in avoiding the unwanted administration"

of these drugs, id. at 221-22. The Court concluded that the constitutional right to

refuse psychotropic medications may be overcome if the inmate has a serious mental

illness and is dangerous, and if the treatment is in his or her best medical interest, see

id. at 227; see also Riggins v. Nevada, 504 U.S. 127, 137 (1992). In Riggins, 504 U.S.

at 135, the Court confirmed that prisoners may not be given such drugs forcibly absent

"a finding of overriding justification and a determination of medical appropriateness."

The Court in Harper, 494 U.S. at 228, also addressed what process is due to

ensure that the decision to medicate an inmate forcibly "is neither arbitrary nor

erroneous." Although the Court did not specify the specific procedural protections that

are mandated by the due process clause, it concluded that the procedures provided by

the state in that case (including notice, a hearing, and decision makers who were not

involved in the inmate's treatment) were adequate. See id. at 216, 236. 

In Mr. Closs's case, as in Harper, the state requires that certain procedures be

followed before the "involuntary treatment" of inmates with psychotropic medication,

see S.D. Codified Laws § 24-2-33, and we note that parolees remain "inmate[s]" under

state law until their terms of imprisonment expire, see S.D. Codified Laws § 24-15-1.1.

In addition, the state prohibits the forcible administration of psychotropic medication,

absent an emergency, to anyone admitted to a mental institution. See S.D. Codified

Laws § 27A-12-3.12, § 27A-12-3.23.

III.

The Supreme Court cases that we cite above establish that prisoners have a

liberty interest in being free from being forcibly medicated with psychotropic drugs and
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that procedural protections must be provided to prisoners before this liberty interest

may be taken from them. We believe, however, that the state court could reasonably

have concluded that such protections were inapplicable to Mr. Closs's circumstances.

First, we believe that the state court could reasonably have decided that it was

not required to rely upon the above cases because Mr. Closs, rather than being forcibly

medicated, agreed to treatment that included prescribed medication. Although

Mr. Closs correctly stated that the parole agreement did not require him to take

prescribed medication, the agreement did provide that he would maintain

board-approved mental health treatment. We believe that the state court could have

determined as a matter of law that under the facts presented here the parole agreement

to maintain "treatment" necessarily included an agreement to take the drugs that were

prescribed as an integral part of that treatment. Cf. Franceschi v. American Motorists

Insurance Co., 852 F.2d 1217, 1220 (9th Cir. 1988) ("treatment" includes management

of illness by administration of drugs). As the district court stated, "the phrase

'psychiatric treatment' certainly includes the possibility of administration of

psychotropic medications," Closs, 87 F. Supp. 2d at 935. Psychotropic drugs are used

to treat schizophrenia, see Harper, 494 U.S. at 214, and Mr. Closs had been treated

with psychotropic drugs in the past.

In addition, there was no evidence that Mr. Closs was forced to agree to the

parole terms or that he objected to the treatment condition when it was imposed, and

state law specifically provides that an inmate is "not required to accept a conditional

parole," see S.D. Codified Laws § 24-15-1.1. The board's decision whether to grant

parole to Mr. Closs was discretionary, moreover, see id., and he therefore had no

protected liberty interest in receiving it, see Greenholtz v. Inmates of Nebraska Penal

and Correctional Complex, 442 U.S. 1, 7 (1979); see also Dace v. Mickelson, 816

F.2d 1277, 1282-83 (8th Cir. 1987) (en banc). Thus in return for receiving the

discretionary benefit of parole, Mr. Closs agreed, inter alia, to maintain
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board-approved treatment for his mental illness. Cf. Felce v. Fiedler, 974 F.2d 1484,

1494, 1501 (7th Cir. 1992) (holding that due process clause requires procedural

protections before conditioning mandatory parole on taking psychotropic drugs, but

finding that the right was not "clearly established" at the time of the events in that case).

We also note that when Mr. Closs refused to take his medication, psychotropic drugs

were not forcibly administered to him.

Although it may be that arbitrary parole conditions violate the Constitution, see

Preston v. Piggman, 496 F.2d 270, 273, 275 (6th Cir. 1974), we do not believe that

under the particular facts presented here, the state court was required to conclude that

the board had arbitrarily required Mr. Closs to maintain mental health treatment that

included psychotropic medication. The Supreme Court has observed that parolees do

not enjoy "the absolute liberty to which every citizen is entitled, but only ... the

conditional liberty properly dependent on observance of special parole restrictions,"

Morrissey v. Brewer, 408 U.S. 471, 480 (1972). Conditions of parole serve the

purpose of prohibiting "behavior that is dangerous to the restoration of the individual

into normal society," id. at 478; see also S.D. Codified Laws § 24-15-11 (parole

agreement may include "reasonable restrictions ... designed to continue the parolee's

rehabilitation"). To accomplish the purposes of parole, those released early from prison

may be subjected to substantial restrictions on their conduct. See Morrissey, 408 U.S.

at 478. 

Here Mr. Closs had a long-term diagnosis of schizophrenia and related

hospitalizations, and he had previously been placed on psychotropic medication for his

condition. His prison physician was concerned that he would have difficulty

functioning in society upon his release and recommended that he receive inpatient

treatment. Furthermore, there was evidence that when Mr. Closs took his medication

his social skills improved and he was less likely to be orally aggressive and to throw

things. Given these facts, we do not believe that the state court was required to
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conclude that the condition imposed was unconstitutional. Cf. United States v. Cooper,

171 F.3d 582, 587 (8th Cir. 1999) (finding "without merit" defendant's challenge to

supervised-release condition that required him to undergo mental health treatment if

"deemed appropriate," where defendant had history of "major depression, refusal to

take anti-depressant medications, and conduct dangerous to himself and others");

United States v. Wilson, 154 F.3d 658, 667 (7th Cir. 1998), cert. denied, 525 U.S.

1081 (1999) (trial court acted within its discretion by ordering defendant during

supervised release to participate in mental health program and take prescribed

medications, based on defendant's history of emotional disturbance, erratic behavior,

mood swings, and depression); and United States v. Gallo, 20 F.3d 7, 9, 11-12, 15 (1st

Cir. 1994) (upholding condition that required probationer suffering from paranoid

schizophrenia to enter inpatient treatment, and permitting probation revocation after

probationer "made it plain," id. at 15, that he would not take his medications or submit

to inpatient treatment). 

Under 28 U.S.C. § 2254(d)(1), we need not decide whether the due process

clause actually requires procedural protections before parole is conditioned on the

taking of psychotropic medication, because we conclude that the state court, by

denying Mr. Closs's habeas petition, did not unreasonably apply Supreme Court

precedent. The state court could have concluded that Mr. Closs's parole agreement

conditioned his parole on his taking psychotropic drugs if they were prescribed, that

when he refused to do so he violated a valid condition of his parole, and that his due

process rights were not violated by the parole revocation.

IV.

With respect to Mr. Closs's loss of good-time credits, under state law the board

has the discretion to reduce a parolee's good-time credits once it decides that the

parolee has violated the conditions of his or her parole. See S.D. Codified Laws

§ 24-15-24. We note that at his parole violation hearing, Mr. Closs testified that he
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understood that he could lose his good-time credits if the board concluded that he had

violated the terms of his parole agreement, and his good-time credits are not mentioned

specifically in his state habeas petition or in his petition under 28 U.S.C. § 2254.

Because we believe that the state court could properly have upheld the decision to

revoke Mr. Closs's parole, we also conclude that the state court could reasonably have

upheld the board's decision to reduce Mr. Closs's good-time credits under S.D.

Codified Laws § 24-15-24, a statute that Mr. Closs has not challenged.

V.

With regard to the retaliation claim referred to by the district court, we conclude

after reviewing the record that Mr. Closs did not assert a retaliation claim as a separate

ground for relief in either his state habeas petition or his petition under 28 U.S.C.

§ 2254, and he does not rely on such a claim in this appeal. Insofar as Mr. Closs, by

relying on state statutes in state and federal court, attempts to allege a state-law claim,

we are limited as a federal habeas court to deciding whether "the Constitution or laws

or treaties of the United States" have been violated, see § 2254(a); see also Reed v.

Farley, 512 U.S. 339, 345-46 (1994). We have not found, nor have the parties cited

to us, authority under which we may examine issues of state law in this action. See

Cole v. Young, 817 F.2d 412, 416 (7th Cir. 1987); see also United States ex rel.

Hoover v. Franzen, 669 F.2d 433, 436-37 (7th Cir. 1982) (neither the habeas corpus

statutes nor principles of pendent jurisdiction allow collateral review of questions of

state law).

VI.

For the reasons stated, we reverse the district court's order, and we remand the

case to the district court for the entry of an order denying Mr. Closs's petition under 28

U.S.C. § 2254.
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A true copy.

Attest:

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