F I L E D

United States Court of Appeals

Tenth Circuit

JUL 26 2002

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LUKE REED,

Plaintiff - Appellant,

v.

DAVID R. McKUNE, Warden,

Lansing Correctional Facility;

CHARLES SIMMONS, Secretary of

Corrections,

Defendants - Appellees.

No. 00-3255

Appeal from the United States District Court 

for the District of Kansas

(No. 98-CV-3418-JWL )

Jean K. Gilles Phillips, The Paul E. Wilson Defender Project, University of

Kansas School of Law, Lawrence, Kansas, for Plaintiff-Appellant.

Brian R. Johnson, Assistant Attorney General, Topeka, Kansas, for DefendantsAppellees.

Before KELLY , Circuit Judge, McWILLIAMS , Senior Circuit Judge, and

LUCERO , Circuit Judge.

LUCERO, Circuit Judge.

Luke Reed, a Kansas state prisoner serving a life sentence for aggravated
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kidnaping and rape, appeals the district court’s grant of summary judgment to

defendants on his 42 U.S.C. § 1983 claim for injunctive and monetary relief. He

alleges that his constitutional rights have been violated by prison officials who

have ordered him either to participate in Kansas’s Sexual Abuse Treatment

Program (“SATP” or “program”) or suffer the revocation of certain prison

privileges and the denial of parole. We reserved judgment on this case pending

the Supreme Court’s review of this Circuit’s opinion in Lile v. McKune, 224 F.3d

1175 (10th Cir. 2000). In light of the Court’s decision, McKune v. Lile , No. 00-

1187, 2002 U.S. LEXIS 4206 (U.S. June 10, 2002) (plurality opinion), we

conclude that there is no merit to his claims. Exercising jurisdiction pursuant to

28 U.S.C. § 1291, we affirm.

I

Reed was convicted in June 1982 of aggravated kidnaping and rape, for

which he received sentences, respectively, of life imprisonment and fifteen years

to life. He became eligible for parole in June 1997. While imprisoned, Reed

worked his way from a Level I security designation to Level III, thus earning him

privileges including higher wages, more spending money, and the ability to

possess electronic equipment in his cell. 

Upon reaching the Level III classification, Reed was ordered to participate

in the prison’s SATP. Among other things, the program requires an inmate to
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disclose his sexual history, including the crime of which he was convicted, along

with any uncharged sexual offenses. No confidentiality is accorded to these

disclosures, the admissions may be used against the inmate in future criminal

prosecutions, and any information provided that concerns a sexual offense against

a minor must by statute be disclosed to the proper authorities. See Kan. Stat.

Ann. § 38-1522. In addition, participants in the SATP are required to submit to

polygraph and penile plethysmograph testing. Although Reed initially acquiesced

to the order to join the program, he ultimately refused to participate—a decision

that resulted in his automatic transfer to maximum security with a security

classification of Level I and imposition of a number of attendant sanctions,

including restrictions on visitation rights, prison-yard privileges, participation in

prison organizations, and possession of personal property. 

In June 1996, Reed filed a petition for a writ of habeas corpus in state

district court, alleging that he was being forced to participate in the SATP in

violation of his rights under the Fourth, Fifth, and Fourteenth Amendments to the

United States Constitution. The state district court dismissed the petition, and

Reed withdrew his appeal of this decision before it could be resolved by the state

appellate courts. In December 1998, Reed initiated the present § 1983 suit in

federal district court, alleging (1) that requiring him to sign a document admitting

guilt and detailing all past sexual experiences violated his Fifth Amendment
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privilege against self-incrimination; (2) that his punishment for refusing to

participate in the SATP violated his Fourteenth Amendment substantive and

procedural due process rights; (3) that his punishment for refusing to participate

in the SATP violated the Ex Post Facto Clause; and (4) that the use of penile

plethysmograph testing would violate his Fourth Amendment right to privacy and

his Fifth Amendment right not to incriminate himself. He prayed for both

injunctive relief and monetary damages.

The district court granted summary judgment to defendants, and Reed now

appeals.

II

We review the district court’s grant of summary judgment de novo,

applying the same legal standards used by the district court. See Gunnell v. Utah

Valley State Coll. , 152 F.3d 1253, 1259 (10th Cir. 1998) . Summary judgment is

appropriate “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). In reviewing a summary

judgment motion, the court is to view the record “in the light most favorable to

the nonmoving party.” Thournir v. Meyer, 909 F.2d 408, 409 (10th Cir. 1990)

(citation omitted). 
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A

Defendants argue that each of Reed’s claims was previously raised in his

state petition for a writ of habeas corpus, that each was adjudicated by the state

district court, and that Reed is therefore barred under the principles of res judicata

and collateral estoppel from re-asserting these claims in a § 1983 action in federal

court. Although we do not agree in full with this argument, we conclude that the

bulk of Reed’s claims are barred on res judicata and collateral estoppel grounds.

Most, but not all, of the claims that Reed makes in the present § 1983

action were likewise made before the state district court in his petition for a writ

of habeas corpus. Whether the doctrines of res judicata and collateral estoppel

bar Reed’s claims is an issue to be determined under Kansas law. “In determining

whether a state court judgment precludes a subsequent action in federal court, we

must afford the state judgment full faith and credit, giving it the same preclusive

effect as would the courts of the state issuing the judgment.” Rhodes v.

Hannigan, 12 F.3d 989, 991 (10th Cir. 1993); see also 28 U.S.C. § 1738

(providing that state judicial proceedings “shall have the same full faith and credit

in every court within the United States . . . as they have by law or usage in the

courts of such State . . . from which they are taken”). 

The doctrine of res judicata prohibits litigation of certain claims based on

the resolution of an earlier action between the same parties. “Under res judicata,
1

 The Supreme Court of Kansas has explained the manner in which the

“identity of the cause of action” may be ascertained:

A fundamental test applied for comparing causes of action, for the

purpose of applying principles of res judicata, is whether the primary

right and duty, and delict or wrong, are the same in each action. 

Under this test, there is but one cause of action where there is but

one right in the plaintiff and one wrong on the part of the defendant

involving that right. . . . Two actions have also been regarded as

being based on the same cause of action where the issues in the first

action were broad enough to comprehend all that was involved in the

issues of the second action, or where the two actions have such a

measure of identity that a different judgment in the second would

destroy or impair rights or interests established by the judgment in

the first.

Wells v. Ross, 465 P.2d 966, 968 (Kan. 1970) (quotation omitted).

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a final judgment on the merits of an action precludes the parties . . . from

relitigating issues that were or could have been raised in that action.” Allen v.

McCurry, 449 U.S. 90, 94 (1980). Under Kansas law, an issue is res judicata

when there is a “concurrence” of four conditions: “(1) identity in the things sued

for, (2) identity of the cause of action, (3) identity of persons and parties to the

action, and (4) identity in the quality of the persons for or against whom the claim

is made.” Steele v. Guardianship & Conservatorship of Crist, 840 P.2d 1107,

1114 (Kan. 1992) (quotation omitted).1

The doctrine of collateral estoppel prevents a second litigation of the same

issues between the same parties or those in privity with the parties. Under Kansas

law, the requirements of collateral estoppel are: 
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(1) a prior judgment on the merits which determined the rights and

liabilities of the parties on the issue based upon ultimate facts as

disclosed by the pleadings and judgment; (2) the parties must be the

same or in privity; and (3) the issue litigated must have been

determined and necessary to support the judgment. 

Kan. Pub. Employees Ret. Sys. v. Reimer & Koger Assocs., 941 P.2d 1321, 1344

(Kan. 1997) (“KPERS”) (quotation omitted). The Supreme Court has specifically

noted that the doctrine of collateral estoppel is applicable in the § 1983 context,

because there is “no reason to believe that Congress intended to provide a person

claiming a federal right an unrestricted opportunity to relitigate an issue already

decided in state court.” Allen, 449 U.S. at 104.

Reed’s request for an injunction to prevent defendants from forcing him

either to participate in the SATP or else forego a host of prison privileges has

already been adjudicated in state court. We conclude that, to the degree Reed’s

request for such an injunction is premised on the alleged violation of his

Fourteenth Amendment substantive and procedural due process rights, his Fourth

Amendment right to privacy, or his Fifth Amendment right not to incriminate

himself by submitting to polygraph and plethysmograph testing, the matter is res

judicata and therefore not assertable in this action. Stated simply, the four

conditions set forth by the Supreme Court of Kansas for applicability of the

doctrine of res judicata have been met with respect to Reed’s request for an

injunction premised on these alleged constitutional violations. 
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Res judicata does not, however, bar Reed’s claim for money damages based

on the alleged violations enumerated in the above paragraph. To the contrary, we

have previously held that under Kansas law the doctrine of res judicata does not

preclude a § 1983 action for monetary damages when a prisoner’s claims have

previously been adjudicated in a state habeas corpus proceeding because habeas

corpus and § 1983 actions are premised on different wrongs. See Rhodes, 12 F.3d

at 991 (noting that a petition for habeas corpus “attacks the fact or duration of a

prisoner’s confinement and seeks the remedy of immediate release or a shortened

period of confinement,” while a civil rights action for damages pursuant to § 1983

“attacks the conditions of the prisoner’s confinement and requests monetary

compensation for such conditions” (citation omitted)). Nonetheless, because the

requirements set forth by the Supreme Court of Kansas for collateral estoppel

have been met with respect to the adjudication of these alleged constitutional

violations, we conclude that Reed’s claim for money damages premised on these

wrongs likewise may not be asserted in this action.

B

A bit more complicated is Reed’s request for an injunction and money

damages premised on his Fifth Amendment right not to incriminate himself by

being forced to confess guilt to his crime of conviction and by being forced to

describe all past sexual experiences. Under Kansas law, even when an issue has
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been actually litigated and there is a valid and final judgment of the issue,

relitigation is not precluded when the issue is one of law and “a new

determination is warranted to take account of an intervening change in the

applicable legal context or otherwise to avoid inequitable administration of the

laws.” KPERS, 941 P.2d at 1344; cf. Spradling v. City of Tulsa, 198 F.3d 1219,

1223 (10th Cir. 2000) (“The doctrines of collateral estoppel and res judicata . . .

apply only in cases where controlling facts and law remain unchanged. 

Consequently, res judicata and collateral estoppel are inapplicable where, between

the first and second suits, an intervening change in the law or modification of

significant facts create new legal conditions.” (citation omitted)). 

A change in the relevant law was indisputably effected between the time of

the disposition of Reed’s state habeas claim and the pendency of his instant

appeal of the federal district court’s grant of summary judgment to defendants. 

In dismissing Reed’s constitutional claims in the habeas proceeding, the state

district court relied on a series of Kansas state cases, all of which held that the

SATP did not violate a prisoner’s constitutional rights. (See R. Doc. 19 Ex. A

at 1.) Subsequently, however, we held on nearly identical facts in Lile v.

McKune that “the policy that forces Plaintiff to choose between admitting

incriminating information required for participation in the SATP and incurring

the substantial and potent penalties that would be imposed if he refused to
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participate is capable of forcing the self-incrimination which the [Fifth]

Amendment forbids.” 224 F.3d at 1189 (quotation omitted).

It is an interesting question whether a change in the relevant law that

occurs after the initiation of a cause of action but before its ultimate resolution

on appeal is sufficient to allow a party to avoid the shoals of collateral estoppel

doctrine under Kansas law. Nevertheless, we conclude that this is a question we

need not answer in light of the Supreme Court’s reversal, in McKune v. Lile, of

our holding that forced participation in the SATP violates the Fifth Amendment. 

In his plurality opinion in McKune v. Lile, Justice Kennedy—joined by

three other members of the Court—opined that

[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. 

2002 U.S. LEXIS 4206 at *27. Applying this standard, which is borrowed from

the procedural due process analysis established by the Court in Sandin v. Conner,

515 U.S. 472, 484 (1995), the plurality determined that forcing an inmate to

choose between participating in Kansas’s SATP and losing prison privileges does

not violate an inmate’s privilege against self-incrimination. In her lone

concurrence, Justice O’Connor agreed that forcing an inmate to make such an

election is not compulsive, but she did not assent to the plurality contention that
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the standard for ascertaining compulsion is the same as the due process standard

set forth in Sandin. See id. at *50 (O’Connor, J., concurring). Though Justice

O’Connor’s narrower position in her concurrence represents the holding of the

plurality decision, see Marks v. United States, 430 U.S. 188, 193 (1977), the

identity of material facts between Reed’s and Lile’s circumstances nonetheless

requires us to conclude that Reed, too, has failed to show that defendants violated

his constitutional rights by forcing him to choose between participation in the

SATP and the revocation of his prison privileges.

C

Reed’s final claim—that he is entitled to an injunction and money damages

because his refusal to participate in the SATP has resulted in his being denied

parole in violation of his due process and ex post facto rights—was not

adjudicated in state court because the denials of parole had not yet occurred. 

Defendants’ res judicata and collateral estoppel arguments are therefore meritless

with respect to this claim. 

Pursuant to a statutory provision enacted by the Kansas legislature in 1988,

the secretary of corrections must “enter into a written agreement with the inmate

specifying those educational, vocational, mental health or other programs which

the secretary determines the inmate must satisfactorily complete in order to be

prepared for release on parole or postrelease supervision.” Kan. Stat. Ann. § 75-
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5210a(a). Under another provision enacted in 1988, the parole board may release

on parole—with some exceptions not relevant in the present case—only those

inmates for whom “the secretary of corrections has reported to the board in

writing that the inmate has satisfactorily completed the programs required by any

agreement entered under K.S.A. 75-5210a.” Id. § 22-3717(g). If these

provisions were applicable to Reed, who was convicted before their enactment,

then successful completion of the SATP would be a prerequisite to his being

released on parole. The Kansas Court of Appeals, however, has held that these

provisions “do not apply retroactively,” because such an application of the new

provisions would violate the Ex Post Facto Clause. Payne v. Kan. Parole Bd.,

887 P.2d 147, 150 (Kan. Ct. App. 1994); see also Lile v. McKune, 224 F.3d at

1182 (noting that, under Payne, inmates convicted prior to the 1988 enactment of

§§ 75-5210a and 22-3717(g) are not required to enter into a program agreement in

order to be eligible for parole). In light of the holding in Payne , Reed contends

that his several denials of parole offend both the Due Process Clause and the Ex

Post Facto Clause.

Reed has been denied parole three times since 1997. The reasons listed by

the parole board for the first denial in its 1997 Action Notice were the “serious

nature and circumstances of crime; history of crim [ sic ] acts; non-participation in

programs” (Appellant’s App. Attach. A at 8); the reasons listed for the second
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and third denials, in 1999 and 2000, were the “[s]erious nature and circumstances

of the crime, objections regarding parole” ( id. at 9, 10). Both the 1997 and 2000

Action Notices include a recommendation that Reed complete the SATP program. 

Also in the record is a “Parole/Release Eligibility Document,” which

accompanied the 1999 denial of parole and which states that Reed’s “[o]verall

progress has been satisfactory, except for the inmate still refusing [SATP].” ( Id.

at 53.) Reed claims that this evidence raises a material issue as to whether he

has repeatedly been denied parole “solely for his failure to participate in the

SATP” in violation of his constitutional rights. (Appellant’s Br. at 12.)

Reed seeks three separate forms of relief for this alleged violation: (1) an

injunction ordering the Kansas parole board to release him on parole,

(2) monetary damages stemming from the parole board’s unconstitutional failure

to have granted him parole thus far, and (3) an injunction requiring the parole

boa rd to c orrect constitutionally defective procedures in any future parole

hearings. We address each request in turn.

The Supreme Court has held that “when a state prisoner is challenging the

very fact or duration of his physical imprisonment, and the relief he seeks is a

determination that he is entitled to immediate release or a speedier release from

that imprisonment, his s ole federal remedy is a writ of habeas corpus.” Preiser v.

Rodriguez , 411 U.S. 475, 500 (1973). This requirement is applicable to a
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challenge to a constitutional defect in an individual parole hearing where the

remedy lies in providing a new parole hearing. Herrera v. Harkins , 949 F.2d

1096, 1097 (10th Cir. 1991). We therefore conclu de that, with respect to Reed’s

request for an injunction that would effect his immediate or imminent release on

parole, his claim is not cognizable under § 1983 and must instead be brought

under 28 U.S.C. § 2241. 

Reed’s claim for money damages in federal court is likewise precluded. In

Heck v. Humphrey , the Supreme Court held that

in order to recover damages for allegedly unconstitutional conviction

or imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid, a

§ 1983 plaintiff must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determination, or

called into question by a federal court’s issuance of a writ of habeas

corpus, 28 U.S.C. § 2254.

512 U.S. 477, 486–87 (1994) (footnote omitted). Because a judgment in favor of

Reed would “necessarily imply the invalidity of his conviction or sentence,” id. at

487, and because Reed has not “demonstrate[d] that the conviction or sentence

has already been invalidated,” id., we conclude that his claim for money damages

is likewise not cognizable under § 1983. See also Edwards v. Balisock , 520 U.S.

641, 648 (1997) (holding that Heck is applicable to § 1983 suits premised on

alleged violations of prison disciplinary procedures).

However, where a prisoner “seek[s] injunctive or declaratory relief to
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correct constitutionally defective parole procedures, section 1983 remains

available.” Herrera , 949 F.2d at 1097–98. Because Reed contends that the

parole board is improperly requiring him to complete the SATP in violation of

the Due Process and Ex Post Facto Clauses, his action seeking injunctive relief to

compel the board to abide by constitutionally acceptable procedures in the future

is cognizable under § 1983. 

“It is well-settled that the Due Process Clause shields from arbitrary or

capricious deprivation those facets of a convicted criminal’s existence that

qualify as ‘liberty interests.’” Harper v. Young , 64 F.3d 563, 564 (10th Cir.

1995), aff’d , 520 U.S. 143 (1997). An inmate’s interest in participating in a

state’s parole program is one such liberty interest inhering directly in the Due

Process Clause itself, and thus is not s ubject to deprivation without strict

procedural safeguards . Id. Although certain deprivations of process impacting on

parole decisions may be “too attenuated to invoke the procedural guarantees of

the Due Process Clause,” Sandin, 515 U.S. at 487, Reed’s claim that he is being

denied parole solely on the basis of his failure to participate in the SATP is not so

attenuated. Cf. id. (holding that the effect of a misconduct record on the duration

of an inmate’s sentence was too attenuated even though it was a relevant

consideration for parole). Reed’s claim might, therefore, potentially state a due

process violation.
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To show a violation of the Ex Post Facto Clause, a prisoner must

demonstrate that he has been subjected to a “penal or criminal law [that is]

retrospective, and disadvantageous to the offender because it [imposes] greater

punishment.” Dyke v. Meachum, 785 F.2d 267, 268 (10th Cir. 1986) (per curiam)

(quotation omitted). The law must “alter[] the definition of criminal conduct or

increas[e] the punishment for the crime.” Fultz v. Embry, 158 F.3d 1101, 1102

(10th Cir. 1998) (quotation omitted). Because the parole board’s application of

the 1988 statutory parole provisions to Reed’s case would be retrospective and

could impose an enhanced punishment for his crime, see Lynce v. Mathis, 519

U.S. 433, 445 (1997) (noting that retroactive alteration of parole or early release

provisions can constitute an increase in punishment that implicates the Ex Post

Facto Clause), we conclude that Reed might, in theory, be entitled to injunctive

relief on ex post facto as well as due process grounds.

Nonetheless, we conclude that Reed has not, either before the district court

or this Court, come forth with evidence sufficient to survive defendants’ motion

for summary judgment by demonstrating that there is a material factual dispute as

to whether he has been denied parole solely on account of his nonparticipation in

the SATP in violation of his due process and ex post facto rights. To the

contrary, each of the parole board’s Action Notices indicated that one of the

reasons Reed was denied parole was the “serious nature and circumstances of
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[his] crime.” (Appellant’s App. Attach. A at 8–9, 10.) Reed points to no

evidence in the record demonstrating that the parole board has ignored the

holding of Payne and denied him parole on the ground that Kan. Stat. Ann. § 22-

3717(g) compelled that result. Construing the evidence in the light most

favorable to Reed, we conclude that summary judgment for defendants on these

claims was warranted.

III

The district court’s grant of summary judgment to defendants on Reed’s

claims is AFFIRMED .