FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 5, 2020 _________________________________ Christopher M. Wolpert Clerk of Court THOMAS NEILSEN,
Plaintiff - Appellant,
v. No. 19-1318 (D.C. No. 1:18-CV-01538-CMA-NRM) MAGGIE M. MCELDERRY; JOHN AND (D. Colo.) JANE DOE,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges. _________________________________
Thomas Neilsen, appearing pro se, appeals the district court’s order granting
defendant Maggie M. McElderry’s motion to dismiss his complaint under 42 U.S.C.
§ 1983 for alleged violations of his Fourth and Fifth Amendment rights, retaliation,
and conspiracy. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. BACKGROUND
The events giving rise to Mr. Neilsen’s suit took place while he was in the
custody of the Colorado Department of Corrections serving a four-year sentence
following his guilty plea to one count of sexual assault on a child and the entry of
judgment on one deferred count when he attempted to withdraw his plea. At an
October 2016 parole hearing, Mr. Neilsen denied committing any crimes against
children and told the parole board he intended to pursue post-conviction relief to
withdraw his plea. The parole board noted Mr. Neilsen’s denial and ordered his
mandatory release to parole the following year on the conditions that he present an
adequate parole plan, designate a suitable parole sponsor, and establish adequate
housing and work opportunities.
During the time leading up to his scheduled release on June 20, 2017,
Mr. Neilsen met on several occasions with Ms. McElderry—his parole officer at the
Crowley County Correctional Facility—to discuss his upcoming parole.
Ms. McElderry presented Mr. Neilsen with a Parole Agreement, which included a
requirement to “participate in a sex offender intake, evaluation and successfully
complete treatment at the discretion of the Sex Offender Supervision Team.”
R. at 98.1
1 Mr. Neilsen maintains that Ms. McElderry had no authority to require him to agree to participate in sex offender treatment because the parole board had not imposed such a condition. This argument is not relevant to any of his claims; instead, the relevant issue is whether the requirement—whether it was imposed by the board or Ms. McElderry—violated Mr. Neilsen’s Fifth Amendment right against self-incrimination. 2 Mr. Neilsen alleged that throughout his meetings with Ms. McElderry, he
told her he was seeking post-conviction relief to withdraw his guilty plea and
“explained . . . that sex offender treatment would be incompatible with his right to
[seek such] relief, [because] as part of treatment he would be required to admit guilt
to a crime that he did not commit.” R. at 6. Specifically, he told Ms. McElderry he
was invoking his Fifth Amendment privilege against self-incrimination in refusing to
sign the Parole Agreement. According to Mr. Neilsen, he “offered to correct . . . the
mistakes”; however, Ms. McElderry refused and told him “the agreement . . . was not
negotiable.” Id. at 8. Further, Ms. McElderry was alleged to have said “she would
not discuss legal issues,” id., and did not allow Mr. Neilsen to meet with his
community parole officer.
On June 20, Ms. McElderry refused to release Mr. Neilsen to parole; instead,
she filed a complaint alleging Mr. Neilsen “violated [his obligation to] ‘follow the
directives of and cooperate with the Community Parole Officer.’” Id. at 9. As a
result, Mr. Neilsen was detained for twenty-eight days before the complaint was
dismissed and he was released to parole.
Mr. Neilsen sued and Ms. McElderry moved to dismiss on qualified immunity
grounds. The magistrate judge recommended denial of Ms. McElderry’s motion as to
the retaliation and Fourth and Fifth Amendment claims and dismissal of the
conspiracy claim. Ms. McElderry objected to the recommendations concerning the
retaliation and Fourth and Fifth Amendment claims. The district court adopted the
recommendation in part by dismissing the conspiracy claim but agreed with
3 Ms. McElderry that the retaliation and Fourth and Fifth Amendment claims should
also be dismissed. This appeal followed.
II. DISCUSSION
A. Qualified Immunity
“The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted).
“Because the focus is on whether the [defendant] had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of the law at the time of the
conduct.” Kisela v. Hughes, --- U.S. ---, 138 S. Ct. 1148, 1152 (2018) (per curiam)
(internal quotation marks omitted). Therefore, “[w]hen a defendant raises the
qualified-immunity defense, the plaintiff must . . . establish (1) the defendant violated
a federal statutory or constitutional right and (2) the right was clearly established at
the time of the defendant’s conduct.” Ullery v. Bradley, 949 F.3d 1282, 1289
(10th Cir. 2020). The court has discretion to decide which of the two prongs of the
qualified immunity analysis to address first. Pearson, 555 U.S. at 236.
“A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.”
Ullery, 949 F.3d at 1291 (internal quotation marks omitted). “Ordinarily, in order for
the law to be clearly established, there must be a Supreme Court or Tenth Circuit
decision on point, or the clearly established weight of authority from other courts
4 must have found the law to be as the plaintiff maintains.” Toevs v. Reid, 685 F.3d
903, 916 (10th Cir. 2012) (internal quotation marks omitted). “Although . . . caselaw
does not require a case directly on point for a right to be clearly established, existing
precedent must have placed the statutory or constitutional question beyond debate,”
and courts are cautioned “not to define clearly established law at a high level of
generality.” Kisela, 138 S. Ct. at 1152 (internal quotation marks omitted).
B. Standard of Review
“This court reviews de novo a district court’s grant of a motion to dismiss
based on qualified immunity.” Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir.
2010). “Asserting a qualified immunity defense via a [Fed. R. Civ. P.] 12(b)(6)
motion . . . subjects the defendant to a more challenging standard of review than
would apply on summary judgment.” Thomas v. Kaven, 765 F.3d 1183, 1194
(10th Cir. 2014) (internal quotation marks omitted).2 Under our standard of review,
“we accept as true all well-pleaded factual allegations in a complaint and view [them]
in the light most favorable to the plaintiff,” then determine whether the complaint
“contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Wittner v. Banner Health, 720 F.3d 770, 774-75 (10th Cir.
2 The standard of review is more challenging because “[a]t [the motion to dismiss] stage, . . . the defendant’s conduct as alleged in the complaint . . . is scrutinized for objective legal reasonableness[,] [whereas] [o]n summary judgment, . . . the plaintiff can no longer rest on the pleadings, and the court looks to the evidence before it . . . when conducting the [qualified immunity] inquiry.” Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (citation and internal quotation marks omitted). 5 2013) (internal quotation marks omitted). At the same time, “we are not bound to
accept as true a legal conclusion couched as a factual allegation.” Id. at 775 (internal
quotation marks omitted).
Whether there is a constitutional violation is a legal issue. See United States v.
Von Behren, 822 F.3d 1139, 1145 (10th Cir. 2016) (“Determining whether an
individual has properly [alleged the violation of a constitutional right] is a question
of law, which we review de novo.” (internal quotation marks omitted)). And whether
the right is clearly established is also a question of law. See Apodaca v. Raemisch,
864 F.3d 1071, 1075 (10th Cir. 2017) (explaining that when the issue of “qualified
immunity arises . . . on a motion to dismiss, . . . our decision regarding qualified
immunity does not hinge on any factual disputes[, and] we confront a purely legal
issue: whether the underlying constitutional right was clearly established”).
C. Fourth Amendment Claim
1. Neilsen’s Complaint
For his Fourth Amendment claim, Mr. Neilsen alleged Ms. McElderry had him
“illegally arrested” on June 20. R. at 5. More particularly, he maintained that
because he was not yet a parolee when he was detained for failing to “follow the
directives of and cooperate with the Community Parole Officer,” id. at 9 (internal
quotation marks omitted), he could not have committed the offense and the arrest was
illegal. We are not required to accept as true Mr. Neilsen’s allegation of an arrest
because it is conclusory and involves purely a question of law. See Apodaca,
864 F.3d at 1075; see also Von Behren, 822 F.3d at 1145. The district court
6 determined there was no arrest and therefore no Fourth Amendment violation. We
agree.
2. Legal Principles
The Fourth Amendment protects “[t]he right of . . . people to be secure in their
persons . . . against unreasonable . . . seizures.” U.S. Const. amend IV. “An arrest,
for purposes of the Fourth Amendment, is a seizure . . . .” Romero v. Story, 672 F.3d
880, 885 (10th Cir. 2012).
Jenkins v. Currier, 514 F.3d 1030 (10th Cir. 2008), is instructive and
dispositive here. Briefly, at the time Jenkins was sentenced in Oklahoma state court
he was also serving a federal sentence. The state court ordered Jenkins to begin
serving his state sentences once he finished serving the federal sentence. But after
finishing his federal sentence, Jenkins “was erroneously released to the street rather
than being returned to Oklahoma custody to serve his state sentences.” Id. at 1032.
Months after his release from federal custody, Jenkins “was arrested without a
warrant by Oklahoma state officials who evidently were aware that he had not
completed his state sentences.” Id. Instead of taking him before a judge or
magistrate for a hearing, the state officials transferred him to a state correctional
facility. Jenkins sued the state officials for violating his Fourth Amendment rights
“when they took him into custody without a warrant or a probable cause hearing and
transferred him to a correctional facility . . . to serve his previously imposed
sentences.” Id.
7 This court rejected Jenkins’s claim, explaining that “[m]ost courts that have
considered the Fourth Amendment implications of seizing a parole violator have held
that a parolee remains in legal custody during the period of his parole and
therefore . . . the retaking of a parole violator does not constitute an arrest for Fourth
Amendment purposes.” Id. at 1033. We extended this principle to others who are
“subject to an unfinished sentence,” stating they too are “not entitled to the full
protections of the Fourth Amendment.” Id.
3. Analysis
In applying Jenkins, the district court explained Mr. Neilsen “has put the cart
before the horse. [Ms. McElderry’s] refusal to release [him] was not an arrest for
Fourth Amendment purposes. Whether [he] was a parolee or an incarcerated prisoner
is irrelevant to the situation at hand [because he is still in legal custody].” R. at 165.
We agree. Similarly, there is no authority to support Mr. Neilsen’s argument that an
incarcerated prisoner is arrested for Fourth Amendment purposes when a state actor
causes him to remain in custody, regardless of the propriety of the underlying
decision that results in continued incarceration. Last, because there was no arrest,
Mr. Neilsen’s argument that the arrest was made “without probable cause,” Aplt.
Opening Br. at 41, is irrelevant. Because we conclude there was no Fourth
Amendment violation, we need not decide whether the law was clearly established.
8 D. Fifth Amendment Claim
Mr. Neilsen alleged he told Ms. McElderry he was invoking his right against
self-incrimination as grounds for refusing to sign the Parole Agreement. We accept
this factual allegations as true; however, we agree with the district court that
Mr. Neilsen’s other “conclusory statements must be disregarded,” including his
assertions that “sex offender treatment would be incompatible with his right to pursue
post-conviction relief, [because] he would be required to admit guilt to a crime that
he did not commit.” R. at 154 (internal quotation marks mitted). Likewise, we are
not required to accept as true Mr. Neilsen’s allegations that the law was clearly
established. See Apodaca, 864 F.3d at 1075; see also Wittner, 720 F.3d at 775.
Mr. Neilsen’s theory of self-incrimination is based on a hypothetical scenario
in which he prevails in his post-conviction proceedings and is allowed to withdraw
his guilty plea to having sexually assaulted a child. “At that point, Neilsen
[maintains he] faces the real prospect that the state may try to recharge [him] with
new or original charges,” Aplt. Opening Br. at 33, and then use the language in the
Parole Agreement that he agreed to “participate in a sex offender intake, evaluation
and successfully complete treatment,” as evidence against him in a new prosecution.
Further, Mr. Neilsen never explains how the state could use any aspect of any
allegedly illegally obtained guilty plea and resulting conviction in future proceedings.
9 2. Legal Principles
The Fifth Amendment states that no person “shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V.
The . . . privilege . . . applies not only to persons who refuse to testify against themselves at a criminal trial in which they are the defendant, but also privileges them not to answer official questions put to them in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate them in future criminal proceedings. Von Behren, 822 F.3d at 1144 (brackets and internal quotation marks omitted).
“[A] defendant does not lose this protection by reason of his conviction of a crime.”
Id. (brackets and internal quotation marks omitted).
“[T]he Supreme Court has always broadly construed the protection afforded by
the Fifth Amendment privilege against self-incrimination.” Id. “Accordingly, the
protection does not merely encompass evidence which may lead to criminal
conviction, but includes information which would furnish a link in the chain of
evidence that could lead to prosecution, as well as evidence which an individual
reasonably believes could be used against him in a criminal prosecution.” Id.
(brackets and internal quotation marks omitted).
At the same time, “[t]he . . . privilege is only properly invoked when the
danger of self-incrimination is real and appreciable, as opposed to imaginary and
unsubstantial, and this protection must be confined to instances where the witness has
reasonable cause to apprehend danger from a direct answer.” Id. (citation and
internal quotation marks omitted). “[W]e will uphold an individual’s invocation of
the privilege . . . unless it is perfectly clear, from a careful consideration of all the
10 circumstances in the case, that the [person] is mistaken and his answers could not
possibly have a tendency to incriminate.” Id. at 1144-45 (internal quotation marks
omitted).
3. Von Behren
Against this backdrop, we turn to an examination of Von Behren to explain
why there was no Fifth Amendment violation. In 2005, Von Behren was sentenced in
the United States District Court for the District of Colorado to 121 months in prison
and three years of supervised release for receipt and distribution of child
pornography. In 2014, as Von Behren neared supervised release, the probation office
petitioned to modify his release conditions to include a requirement to participate in
and successfully complete an approved sex offender treatment program that
“complied with standards mandated by the Colorado Sex Offender Management
Board (SOMB),” which had been directed to “develop[] and implement[] statewide
standards for the assessment, evaluation, treatment, and behavioral monitoring of
adult sex offenders.” 822 F.3d at 1142.
One of the standards implemented by SOMB required treatment providers to
“conduct sexual history polygraphs.” Id. To that end, Von Behren’s provider
“presented [him] with a non-negotiable treatment agreement [that] required [him] to
complete a non-deceptive sexual history polygraph in order to advance through the
program.” Id. The consequence of “[f]ailure to complete the sexual history
polygraph” was “removal from the program.” Id. Further, the agreement contained a
provision concerning use of information gained by the provider regarding any crimes
11 committed by Von Behren: “I hereby instruct [the provider] to report to any
appropriate authority or authorities any occurrence or potential occurrence of any
sexual offense on my part regardless of how [the provider] gains knowledge of such
occurrence or potential occurrence.” Id. (internal quotation marks omitted).
Von Behren objected to the modification on the grounds that the requirement
to complete a sexual history polygraph violated his Fifth Amendment right against
self-incrimination. The district court sustained his objection and “modified [the]
release conditions to exclude any requirement that he admit to a criminal offense
other than his offense of conviction.” Id. at 1142-43.
Nonetheless, a few months later, Von Behren’s provider told him he would
need to submit to a sexual history polygraph that included four mandatory questions
“or leave the program.” Id. at 1143. The mandatory questions were:
1. After the age of 18, did you engage in sexual activity with anyone under the age of 15? 2. Have you had sexual contact with a family member or relative? 3. Have you ever physically forced or threatened anyone to engage in sexual contact with you? 4. Have you ever had sexual contact with someone who was physically asleep or unconscious? Id. (internal quotation marks omitted).
Von Behren filed an emergency motion to block the exam. The district court
reviewed the proposed questions, denied the motion, and ordered Von Behren to
complete the sexual history polygraph. “Specifically, the court noted [there was no
12 incrimination because the] answers would not specify the time, the place, the identity
of any victim, or other people involved.” Id. (internal quotation mark omitted).
Next, Von Behren filed an immediate appeal and asked the district court to
stay its order. The court denied the stay motion. We granted Von Behren’s motion
for an emergency stay of the polygraph and ultimately reversed. Among other things,
we held Von Behren was being asked to incriminate himself because although “[a]n
affirmative answer to any of [the four mandatory questions] could not support a
conviction on its own, . . . [t]he Fifth Amendment [was] triggered [because the
answers] would provide a lead or a link in the chain of evidence needed to prosecute
the speaker.” Id. at 1145 (internal quotation marks omitted).
4. Analysis
We agree with the district court that Mr. Neilsen was not asked to incriminate
himself by agreeing to “participate in a sex offender intake, evaluation and
successfully complete treatment at the discretion of the Sex Offender Supervision
Team.” R. at 98. Unlike Von Behren, Mr. Neilsen was not asked to say anything
until the team decided, if ever, on treatment that required Mr. Neilsen to provide
answers to questions that might tend to incriminate him. Until that time, with no
information as to what (if any) questions would be asked, there was no “real and
appreciable” danger of self-incrimination for Mr. Neilsen. Von Behren, 822 F.3d at
1144 (internal quotation marks omitted). Moreover, it is unlikely that Mr. Neilsen
would face the same or similar questions in view of our decision in Von Behren.
13 But assuming for the sake of argument there was a Fifth Amendment violation,
the law was not clearly established. A reasonable official would have understood
that requiring Mr. Neilsen to submit to a polygraph examination that asked questions
similar to those posed to Von Behren would violate the Fifth Amendment. But that
same official would not reasonably understand Von Behren to stand for the general
proposition that simply requiring a parolee to undergo evaluation and treatment, at
the discretion of the team, would also violate the Fifth Amendment. Indeed, any such
reading of Von Behren would run afoul of the Supreme Court’s admonition “not to
define clearly established law at a high level of generality.” Kisela, 138 S. Ct.
at 1152 (internal quotation marks omitted).
E. Retaliation
The district court dismissed Mr. Neilsen’s retaliation claim, reasoning that
because there was no Fifth Amendment violation, he was not engaged in
constitutionally protected activity when he refused to sign the Parole Agreement. We
disagree that Mr. Neilsen was not engaged in constitutionally protected activity;
however, we affirm for a different reason. See Ullery, 949 F.3d at 1301 n.8 (“[W]e
can affirm on any ground supported by the record if the parties had a fair opportunity
to address the ground.”).
“[P]rison officials may not retaliate against or harass an inmate because of the
inmate’s exercise of his constitutional rights.” Peterson v. Shanks, 149 F.3d 1140,
14 1144 (10th Cir. 1998) (internal quotation marks omitted). “This principle applies
even where the action taken in retaliation would be otherwise permissible.”
Id. (internal quotation marks omitted).
However, “an inmate is not inoculated from the normal conditions of
confinement experienced by convicted felons serving time in prison merely because
he has engaged in protected activity.” Id. “Accordingly, a plaintiff must prove that
but for the retaliatory motive, the incidents to which he refers . . . would not have
taken place.” Id. (internal quotation marks omitted). “An inmate claiming retaliation
must allege specific facts showing retaliation because of the exercise of the prisoner’s
constitutional rights.” Id. (internal quotation marks omitted).
Mr. Neilsen’s complaint contains only conclusory allegations of retaliation.
See, e.g., R. at 13 (“Retaliatory intent for Neilsen’s exercise of his constitutionally
protected right not to incriminate himself or be subject to compulsory actions by the
Defendant(s) was a substantially motivating factor in the false arrest and false
incarceration by individual Defendant(s).”). It does not allege “specific facts”
showing Ms. McElderry retaliated against him for the exercise of his Fifth
Amendment rights, as required by Peterson, 149 F.3d at 1144 (internal quotation
marks omitted).
It just so happens Mr. Neilsen refused to sign for Fifth Amendment reasons,
which means he was engaged in constitutionally protected activity; however, “merely
because he [was] engaged in protected activity” does “not inoculate[]” him “from the
15 normal conditions of confinement.” Id. He must “allege specific facts showing
retaliation because of the exercise of [his] constitutional rights.” Id. (internal
quotation marks omitted). The complaint fails this test.
No factual allegations link Ms. McElderry’s decision not to release
Mr. Neilsen to parole with his refusal to sign the Parole Agreement on Fifth
Amendment grounds. The only factual allegations relating to Ms. McElderry’s
motivation reflect an inflexible position that “the agreement in its present form was
not negotiable” and she “would not discuss legal issues with” him. R. at 8. In other
words, they reflect a perceived lack of authority to release Mr. Neilsen to parole
unless he signed the Parole Agreement as presented. No factual allegations show a
retaliatory motive.
F. Conspiracy Claim
The district court adopted the magistrate judge’s recommendation to dismiss
Mr. Neilsen’s conspiracy claim because he failed to plausibly plead a claim for relief.
Because Mr. Neilsen fails to address the issue as required under Federal Rule of
Appellate Procedure 28(a)(8)(A), he has waived appellate review. “Although a
pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers, this court has repeatedly insisted
that pro se parties follow the same rules of procedure that govern other litigants.”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)
(brackets, citation and internal quotation marks omitted). Where, as here, issues “are
16 not adequately briefed,” they “will be deemed waived.” Id. at 841 (internal quotation
III. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Mary Beck Briscoe Circuit Judge