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Johnston v. Simmons, 10th Cir. (2000)
Johnston v. Simmons, 10th Cir. (2000)
AUG 29 2002
PATRICK FISHER
Clerk
MARVIN W. JOHNSTON,
Plaintiff - Appellant,
v.
CHARLES SIMMONS, Secretary of
Corrections, and DAVID MCKUNE,
No. 99-3193
(D.C. No. 97-CV-3354-KHV)
(D. Kansas)
Defendants - Appellees.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
See id.
at 5.
On October 31, 2000, we entered an order reversing in part, vacating in part,
and remanding in part Mr. Johnstons suit.
2000 WL 1629971 (10th Cir. Oct. 31, 2000) (unpublished). Our decision was
based on the holding of
that the Kansas SATP violates the Fifth Amendment rights of inmates who are not
granted immunity or otherwise guaranteed confidentiality for disclosing prior sex
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crimes), revd , McKune v. Lile , 536 U.S.__, 122 S. Ct. 2017 (2002). Appellees
appealed to the United States Supreme Court, and upon appellees request, we
stayed the mandate.
After reversing our decision in
entered a judgment on June 17, 2002, vacating our judgment in this case and
remanding the cause for further consideration in light of its opinion in
McKune .
Simmons v. Johnston , No. 00-1231, 122 S. Ct. 2583 (2002). As a result of this
judgment, on August 7, 2002, we vacated our prior judgment. We have vacated
our opinion in Lile and recently remanded the case to the district court with
directions to dismiss the complaint in its entirety, concluding that Mr. Liles
claims brought pursuant to the Fourth and Fifth Amendments do not rise to the
level of compulsion contemplated by the plurality opinion as expressed by Justice
OConnor. Lile v. McKune , __ F.3d __, __ (10th Cir. 2002);
see McKune ,
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McKune . We
We did not reach Mr. Johnstons remaining issues in our previous decision.
Mr. Johnston argues that the district court abused its discretion in not ordering
further discovery before it ruled on his due process and
continues to argue that punishing him for saying no to participation in the SATP
program violates his First Amendment right to freedom of speech. Upon review of
Mr. Johnstons brief, the district courts orders, and the record on appeal, we find
no reversible error and affirm for substantially the same reasons set forth by the
district court.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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