Al-Turki v. Tomsic , 926 F.3d 610 ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 7, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
HOMAIDAN AL-TURKI,
Plaintiff - Appellant,
v. No. 18-1226
ANN TOMSIC, in her official capacity as
Chief Deputy District Attorney; GEORGE
BRAUCHLER, in his official capacity as
District Attorney; JON BIBIK, Special
Agent; ROBERT MOEN, Chief Division
Counsel*; PAUL HOLLENBECK; JOHN
DOES 1-10,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CV-00524-REB-KLM)
_________________________________
Submitted on the briefs:**
Adam Frank, Faisal Salahuddin, Frank & Salahuddin LLC, Denver, Colorado for
Plaintiff-Appellant.
*
Pursuant to Fed. R. App. 43 (c) (2), Robert Moen replaces Robert Goffi, as a defendant
in this case.
**
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument.
Joseph H. Hunt, Assistant Attorney General, Jason R. Dunn, United States Attorney,
Sharon Swingle and Dennis Fan, United States Department of Justice, Washington, D.C.,
Phil Weiser, Attorney General, James X. Quinn, Senior Assistant Attorney General,
Denver, Colorado, and Andrew D. Ringel, Gillian Dale, and Keith M. Goman, Hall &
Evans, L.L.C., Denver, Colorado, for Defendants-Appellees.
_________________________________
Before TYMKOVICH, Chief Judge, MURPHY, and HARTZ, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
Plaintiff Homaidan Al-Turki is a citizen of Saudi Arabia who was sentenced by a
Colorado state court to a term of eight years to life. He wishes to serve the remainder of
his time in prison in his home country. A treaty permits this, but requires approval of the
State, the federal government, and the foreign nation. Plaintiff alleges that he received
approval from the proper state official but Defendants (several state and federal officials)
then provided false derogatory information to the State that caused it to revoke its
approval. He filed suit in the United States District Court for the District of Colorado
contending that Defendants had violated his right to procedural due process under the
federal Constitution by not providing him a hearing to clear his name before revoking the
approval. He is not asking for damages for the violation but seeks an injunction requiring
that he be granted a judicial hearing to clear his name and that Defendants not repeat the
false allegations against him.
Defendants moved to dismiss the complaint for failure to state a claim, and the
district court granted the motion. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm. The stigma that results from defamation by public officials is alone insufficient to
2
implicate procedural due process; the defamation must also have caused an alteration in
the plaintiff’s legal status—that is, there must be “stigma plus.” But Plaintiff has not
adequately alleged a plus factor here, because he suffered no change in legal status as a
result of Defendants’ alleged stigmatizing comments. Therefore, constitutional due
process did not require that he be granted a hearing before the State’s final decision
against his transfer to a prison in Saudi Arabia.
I. BACKGROUND
While incarcerated in Colorado, Plaintiff filed an application to transfer to a prison
in Saudi Arabia under the Organization of American States’ Inter-American Convention
on Serving Criminal Sentences Abroad (OAS Convention), an international prison-
transfer treaty. Any transfer under the OAS Convention requires the consent of the
sentencing nation, the receiving nation, and the prisoner. See OAS Convention, Article
III § 2, June 9, 1993; 146 Cong. Rec. S10658-02 (Oct. 18, 2000) (“each transfer of a
sentenced person under this Convention shall require the concurrence of the sentencing
state, the receiving state, and the prisoner”). Under guidelines for an international prison
transfer issued by the United States Department of Justice (DOJ), a prisoner in the
custody of a State must obtain the State’s approval of the transfer. The guidelines state:
When a foreign national prisoner has been convicted of a criminal
violation of a state law and is in state custody, the prisoner must first obtain
the approval of the state authorities before he can be considered for transfer
by the Federal Government. Each state has its own application process and
procedures, which a prisoner must follow. If a state denies a transfer
request, the transfer cannot occur. The Federal Government cannot
compel a state to transfer a foreign national.
3
If the state approves the transfer, it transmits the case to the
Department for review. Unless a treaty requirement has not been satisfied
or a compelling federal interest is presented by the case, the Department
generally defers to a state’s transfer decision, believing that the states are
best equipped to assess if transfer would be consistent with state policy and
the rights of any victims impacted by the crime.
The most common basis for the Department to deny the transfer of a
state prisoner typically occurs when a prisoner has not satisfied a treaty
requirement. . . . On occasion, the Department may also deny the transfer of
a state prisoner based on law enforcement, national security, or public
safety concerns.
DOJ, Guidelines for the Evaluation of Transfer Requests Submitted by Foreign
Nationals, § IV (Aug. 31, 2018) (emphasis added).
Colorado delegates authority for review and state-level approval of transfer
applications to the Colorado Department of Corrections (CDOC); and the CDOC
executive director and the governor have discretion to approve or deny applications:
The [CDOC] is delegated the authority by the governor of Colorado to
approve the transfer of eligible foreign national offenders, pursuant to the
conditions of current treaties which provide for such transfer, and the
approval of the Department of Justice and the affected foreign country.
Such transfer is a privilege and not a right. The governor of Colorado, or
the executive director, at their sole discretion, may approve or deny the
transfer of an offender.
Colo. Dep’t of Corr. Admin. Reg. 550-05(IV)(B) (emphasis added). The “Transfer
Application Process” section of the CDOC regulation provides that after a prison-transfer
application is approved by the executive director, “the [CDOC Office of] Offender
Services shall forward a completed application packet to the [DOJ].” The application
packet “shall be certified by the central records office.” Id. at 550-05(IV)(D)(7)(a).
4
According to Plaintiff’s complaint, CDOC executive director Tom Clements
signed a letter on January 14, 2013, approving his transfer application, but Clements then
reversed course and denied the application in March. The complaint alleges the
following sequence of events: On the day Plaintiff’s transfer was approved, Defendant
Ann Tomsic (the prosecutor in Plaintiff’s state-court criminal case) contacted Defendant
Paul Hollenbeck (the associate director of offender services for the CDOC) and asked if
he could delay the transfer decision. About that same time, Defendant Robert Goffi (the
FBI chief division counsel) informed Hollenbeck that he had information relevant to the
transfer decision. Hollenbeck then delayed transmitting to the DOJ the paperwork
approving Plaintiff’s transfer at the state level while Tomsic and Hollenbeck coordinated
with Defendants Jon Bibik (an FBI special agent) and George Brauchler (a Colorado
district attorney) to “stigmatize and defame Plaintiff.” Aplt. App. at 520. Plaintiff claims
that defamatory comments made by Defendants to executive director Clements caused
him to reverse his initial approval of Plaintiff’s transfer application.
Relying on the stigma-plus doctrine, the complaint alleges that Defendants
conspired to violate Plaintiff’s constitutional right to procedural due process by not
providing him with a name-clearing hearing to defend himself against the allegedly false
accusations before denying his request for a transfer to a Saudi Arabian prison.1
Defendants moved to dismiss the complaint, and the district court granted their motions,
1
Plaintiff also sued ten John and Jane Doe Defendants, FBI or local law-enforcement
agents who allegedly participated in the conspiracy.
5
holding that Plaintiff had failed to sufficiently allege the plus factor necessary to state a
stigma-plus claim.
II. DISCUSSION
We review de novo the district court’s dismissal of Plaintiff’s complaint. See
Moya v. Garcia, 895 F.3d 1229, 1232 (10th Cir. 2018). To survive a motion to dismiss,
“a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted).
The Fifth Amendment’s Due Process Clause forbids the federal government from
depriving any person “of life, liberty, or property, without due process of law.” U.S.
Const. amend. V. The Due Process Clause of the Fourteenth Amendment similarly
prohibits a State from “depriv[ing] any person of life, liberty, or property, without due
process of law.” Id. amend. XIV, § 1. Court interpretations of one due-process clause
generally apply to the other; at the least, “the Fourteenth Amendment imposes no more
stringent requirements upon state officials than does the Fifth upon their federal
counterparts.” Paul v. Davis, 424 U.S. 693, 702 n.3 (1976).
“The requirements of procedural due process apply only to the deprivations of
interests encompassed by the [constitutional] protection of liberty and property.” Board
of Regents v. Roth, 408 U.S. 564, 569 (1972). A constitutionally protected liberty or
property interest may be a creation of federal law (including the Constitution itself—at
least for liberty interests) or of state law. See Wilkinson v. Austin, 545 U.S. 209, 221
(2005) (“A liberty interest may arise from the Constitution itself, by reason of guarantees
6
implicit in the word ‘liberty,’ . . . or it may arise from an expectation or interest created
by state laws or policies . . . .”); Roth, 408 U.S. 577 (“Property interests . . . are created
and their dimensions are defined by existing rules or understandings that stem from [a
source independent of the Constitution] such as state law . . . .”). Once a protected
property or liberty interest is recognized, the Constitution may require certain procedures,
such as a hearing, before depriving a person of that interest. See Mathews v. Eldridge,
424 U.S. 319, 333 (1976). In considering a procedural-due-process claim we therefore
ask two questions: “(1) Did the plaintiff possess a protected property or liberty interest to
which due process protections apply? And if so, (2) was the plaintiff afforded an
appropriate level of process?” Martin Marietta Materials, Inc. v. Kansas Dep’t of
Transp., 810 F.3d 1161, 1172 (10th Cir. 2016).
Plaintiff contends that he was denied a liberty interest when Defendants’ false
allegations caused executive director Clements to reverse his initial approval of
Plaintiff’s transfer to Saudi Arabia for incarceration, and he was therefore entitled to a
hearing to clear his name before the reversal. But Supreme Court and circuit precedent
require rejection of this claim.
A. No Due-Process Right to Change Place of Incarceration
Before we address Plaintiff’s stigma-plus claim, it will be useful to place the claim
in context by first discussing the relevant law on whether he would have any due-process
rights regarding the location of his confinement if he had not been subjected to
defamation. Plaintiff does not argue that he has a constitutionally protected liberty
7
interest in changing his place of incarceration from Colorado to Saudi Arabia. And for
good reason: Supreme Court precedent is squarely to the contrary.
It is settled law that the federal Constitution in itself does not confer a right to
incarceration in a particular institution. See Meachum v. Fano, 427 U.S. 215, 224 (1976).
As the Court explained:
Confinement in any of the State’s institutions is within the normal limits or
range of custody which the conviction has authorized the State to impose.
That life in one prison is much more disagreeable than in another does not
in itself signify that a Fourteenth Amendment liberty interest is implicated
when a prisoner is transferred to the institution with the more severe rules.
427 U.S. at 225. The question thus becomes whether state law might create a liberty
interest in the place of confinement that is protected by constitutional due process.
At one time, the Supreme Court indicated that a State conferred a constitutionally
protected liberty interest in favor of prisoners if, and only if, state law “plac[ed]
substantive limitations on official discretion.” Kentucky Dep’t of Corr. v. Thompson, 490
U.S. 454, 462 (1989) (internal quotation marks omitted). Two decisions illustrate the
standard. In Meachum, where an incarcerated plaintiff complained of his transfer to
another prison, the Court pointed to the unfettered discretion conferred on state officials
making prison-transfer decisions in support of its holding that state law did not create a
liberty interest. See 427 U.S. at 228 (“Whatever expectation the prisoner may have in
remaining at a particular prison so long as he behaves himself, it is too ephemeral and
insubstantial to trigger procedural due process protections as long as prison officials have
discretion to transfer him for whatever reason or for no reason at all.”); see also Olim v.
Wakinekona, 461 U.S. 238, 249 (1983) (“Hawaii’s prison regulations place no
8
substantive limitations on official discretion and thus create no liberty interest . . . .”).2
The opposite result was reached in Hewitt v. Helms, 459 U.S. 460, 471 (1983), where the
Court ruled that a prisoner had a liberty interest to remain incarcerated in general
population because of “language of an unmistakably mandatory character” in the state’s
prison procedures. This standard paralleled that for determining whether state law
created a constitutionally protected property interest. See Town of Castle Rock v.
Gonzales, 545 U.S. 748, 756 (2005) (property interest is at stake if state law creates a
“legitimate claim of entitlement” to a government benefit; but no such entitlement exists
“if government officials may grant or deny [the benefit] in their discretion” (internal
quotation marks omitted)).
In Sandin v. Conner, 515 U.S. 472 (1995), and Wilkinson, 545 U.S. 209, however,
the Supreme Court adopted a different analytic framework for determining whether a
prisoner has a constitutionally protected liberty interest. Sandin criticized “the search
[undertaken in previous cases] for a negative implication from mandatory language in
prisoner regulations.” 515 U.S. at 483. It explained that this test had “encouraged
prisoners to comb regulations in search of mandatory language on which to base
entitlements to various state-conferred privileges,” id. at 481, even where that language
conferred only trivial rights, see id. at 482–83. As a result, the test created “disincentives
2
International prison-transfer treaties, like the one at issue here, have also been held
insufficient to create a liberty interest because they lack mandatory language. See
Bagguley v. Bush, 953 F.2d 660, 662 (D.C. Cir. 1991); Lopez-Ortiz v. Reno, No. 94-1460,
1995 WL 364686, at *1 (10th Cir. June 19, 1995) (unpublished).
9
for States to codify prison management procedures,” and it “led to the involvement of
federal courts in the day-to-day management of prisons, often squandering judicial
resources with little offsetting benefit to anyone.” Id. at 482. The Court thus reverted to
the principles it saw as underlying its decision in Meachum, and held that a State could
create a constitutionally protected liberty interest for prisoners only insofar as it freed
them from restraints that impose an “atypical and significant hardship . . . in relation to
the ordinary incidents of prison life.” Id. at 484.3 Applying this test, the Court held that
no protected liberty interest was implicated in the plaintiff’s 30-day confinement in his
prison’s Special Housing Unit, even though the applicable prison regulation spoke in
mandatory terms. See id. at 475–477 & n.3, 487. In contrast, Wilkinson held under the
same test that prisoner incarceration at an Ohio Supermax facility implicated a liberty
interest because of the harshness and duration of the conditions of confinement. See 545
U.S. at 224. Although the Court continued to analyze the issue in terms of a “state-
created” interest, it did not clarify how a State creates such an interest or what role (if
any) the language of state law has in the Sandin inquiry. See id. at 223–24.4
3
Plaintiff, relying on a footnote in Wolff v. McDonnell, 418 U.S. 539 (1974), claims that
a prisoner has a constitutionally protected liberty interest against “a major change in [his]
conditions of confinement.” Aplt. Br. at 26 (quoting Wolff, 418 U.S. at 571 n.19). But
that is not the standard the Court adopted in Sandin. See 515 U.S. at 484.
4
At least one opinion representing the views of three Justices suggests that a
constitutionally protected liberty interest will still require an entitlement mandated by
state law. See Kerry v. Din, 135 S. Ct. 2128, 2137 (2015) (plurality opinion) (rejecting
interpretation of Wilkinson that would require a mere “substantial hope” of a state-
conferred privilege to create a liberty interest because “our cases over the past five
decades require[] . . . that the privilege be one to which the claimant has been given an
entitlement.”). Indeed, requiring a prisoner to show both that state law has created an
10
Here, unlike the cases to come before the Supreme Court, Plaintiff is not
complaining about being transferred to conditions that he considers unconstitutionally
harsh. He is the one seeking the transfer. But the same principles apply. To establish a
protected liberty interest in a prison transfer, he must be able to show that keeping him in
a Colorado prison subjected him to an “atypical and significant hardship . . . in relation to
the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. That, of course, he cannot
do. While incarcerated in Colorado, he was, as far as the record shows, subjected to
merely those “ordinary incidents.” See Meachum, 427 U.S. at 224 (“Confinement in any
of the State’s institutions is within the normal limits or range of custody which the
conviction has authorized the State to impose.”).
B. Stigma-Plus Doctrine
With this background to inform our analysis, we now turn to the doctrine on which
Plaintiff bases his claim. To establish a liberty interest, Plaintiff relies on the alleged
defamation of him by Defendants—the stigma they imposed. At several places in his
brief, he asserts that one has a liberty interest in his or her reputation. See, e.g., Aplt. Br.
at 12 (“Under this Court’s stigma-plus precedent, a person has a liberty interest in his
good name and reputation.”); Aplt. Br. at 14 (“[T]he liberty interest at issue in a stigma-
entitlement through discretion-cabining language and that he meets the Sandin test makes
good sense. A plaintiff proceeding outside of the prison context must make the former
showing; why should not the same be required of a prisoner, whose rights are necessarily
limited by his incarceration? See Wolff, 418 U.S. at 555 (“Lawful imprisonment
necessarily makes unavailable many rights and privileges of the ordinary citizen . . . .”).
Nevertheless, we need not decide this question as Plaintiff clearly lacks a liberty interest
in his place of confinement under the Sandin standard.
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plus case is the plaintiff’s liberty interest in his good name.”); Aplt. Reply Br. at 2 (“[A]
stigma-plus plaintiff has a liberty interest in his good name.”). But the Supreme Court
has explicitly rejected the proposition that “reputation alone, apart from some more
tangible interests such as employment, is either ‘liberty’ or ‘property’ by itself sufficient
to invoke the procedural protection of the Due Process Clause.” Paul, 424 U.S. at 701.
Not surprisingly, this court’s precedents are not to the contrary. See Martin Marietta,
810 F.3d at 1184 (“Damage to reputation alone . . . is not sufficient.”); Gwinn v.
Awmiller, 354 F.3d 1211, 1216 (10th Cir. 2004) (“Damage to one’s reputation alone . . .
is not enough to implicate due process protections.”).
What is needed in addition to stigma, according to the Supreme Court, is some
change in legal status. The plaintiff must show that as a result of the defamation, “a right
or status previously recognized by state law was distinctly altered or extinguished.”
Paul, 424 U.S. at 711. To merit relief, the change in status must be “significant[].” Id. If
the plaintiff establishes that the alleged defamation would significantly change the
plaintiff’s legal status, then the plaintiff is entitled to a name-clearing hearing to prove the
falsity of the defamatory information. See Codd v. Velger, 429 U.S. 624, 627 (1977)
(proper remedy is “an opportunity to refute the charge” (internal quotation marks
omitted)); Nixon v. City and Cty. of Denver, 784 F.3d 1364, 1368 (10th Cir. 2015)
(“Once infringement of a liberty interest is established, the [plaintiff] must show that he
was not afforded an adequate name-clearing hearing that comports with the Due Process
Clause.”); Ersek v. Township of Springfield, 102 F.3d 79, 84 (3d Cir. 1996) (“The
12
principal relief to which an individual is entitled should the government’s stigmatizing
comments rise to the level of a due process violation is a hearing to clear his name.”).
Although Paul did not explicate what it meant by a legal status that would suffice
to create a liberty interest, the opinion did point to prior decisions in which it had
recognized a liberty interest when there was defamation plus something more. In
Wisconsin v. Constantineau, 400 U.S. 433 (1971), “governmental action . . . deprived the
individual of a right previously held under state law – the right to purchase or obtain
liquor in common with the rest of the citizenry.” Paul, 424 U.S. at 708. In United States
v. Lovett, 328 U.S. 303 (1946), a federal statute effectively discharged three federal
employees from their federal jobs and prohibited them from obtaining future government
employment by forbidding that they be paid salary or compensation. See Paul, 424 U.S.
at 702. And in Goss v. Lopez, 419 U.S. 565 (1975), state action deprived the plaintiffs of
the right to attend school. See Paul, 424 U.S. at 710.
A later Supreme Court opinion did not provide a more precise test for determining
what kind of plus factor is needed to establish a liberty interest, but it indicated the
Court’s strict view of the limitations of the doctrine. In Siegert v. Gilley, 500 U.S. 226,
228 (1991), the plaintiff, a clinical psychologist, agreed to resign from his position at a
federal hospital in Washington, D.C., to avoid termination. He then obtained a position
at a United States Army hospital in Bremerhaven, West Germany, but during the
credentialing process it sought information on his job performance at the D.C. hospital.
The response from his former supervisor was very negative, and he was denied
credentials. See id. The plaintiff was turned down for a position at another Army
13
hospital and he was later terminated from the Bremerhaven hospital. See id. at 228–29.
The Court held that he was not deprived of a liberty interest by the allegedly defamatory
statement of his supervisor at the D.C. hospital because the statement “was not uttered
incident to the termination of [his] employment by the hospital, since he voluntarily
resigned from his position at the hospital, and the letter was written several weeks later.”
Id. at 234. And it was not enough that the statement “would undoubtedly damage the
reputation of one in his position, and impair his future employment prospects.” Id.
Our court has required a plaintiff alleging a stigma-plus claim to show both “that
(1) the government made a false statement about [the plaintiff] . . . that was sufficiently
derogatory to injure his reputation, and that (2) [the plaintiff] experienced a
governmentally imposed burden that significantly altered his status as a matter of state
law.” Gwinn, 354 F.3d at 1224 (remanding for further development of the record)
(ellipsis, brackets, and internal quotation marks omitted). We have said that the
“plaintiff’s alleged reputational damage must be entangled with some other tangible
interests such as employment.” McGhee v. Draper, 639 F.2d 639, 643 (10th Cir. 1981)
(internal quotation marks omitted); accord Setliff v. Memorial Hosp. of Sheridan Cty.,
850 F.2d 1384, 1396–97 (10th Cir. 1988) (noting cases in which protected interest
recognized when employee demoted or terminated, plaintiff required to withdraw from
graduate-study program, and plaintiff excluded from eligibility for Medicaid
reimbursements, but holding that subjecting the plaintiff in the case before it to an
investigation was not enough to implicate a due-process interest even though it may have
damaged his reputation and attractiveness to other employers); see generally James L.
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Buchwalter, Application of Stigma-Plus Due Process Claims Other than Education
Context, 95 A.L.R. 6th 341 (2014) (“The plaintiff must allege the utterance of a false
statement that harms the plaintiff's reputation, along with some tangible and material
state-imposed burden in addition to the stigmatizing statement itself.”).
Other circuits have similarly required an alteration of a state-recognized right to
allege a stigma-plus claim. Two opinions illustrate how the harm suffered by the plaintiff
must be to an interest protected by state law. In Alston v. City of Madison, 853 F.3d 901,
909 (7th Cir. 2017), the plaintiff alleged that his inclusion in a program to deter certain
repeat violent offenders violated his procedural-due-process rights under the stigma-plus
doctrine. The Seventh Circuit held that although the program subjected the plaintiff to
“increased surveillance and increased punishment” for probation violations, “neither fact
altered [the plaintiff’s] legal rights.” 853 F.3d at 910. Rather, law enforcement “just did
what they always had the authority to do”—closely monitor the plaintiff’s conduct and
exercise their “discretion to seek punishment at the strong end of the spectrum.” Id. at
910.
In Behrens v. Regier, 422 F.3d 1255, 1256 (11th Cir. 2005), the plaintiff alleged
that officials from the Florida Department of Children and Families erroneously
designated him as a verified child abuser and thereby prevented him from adopting a
second child. The Eleventh Circuit held that the plaintiff failed to allege a plus factor
giving rise to a procedural-due-process claim because state law “provide[d] that the
decision to place a child in a prospective home is a discretionary one,” and therefore did
not confer any adoption right of which the plaintiff was deprived. Id. at 1261. The court
15
also rejected the plaintiff’s claim that his previous adoption of another child conferred a
“protectable legal status” upon him, as the State had the discretion to reexamine an
applicant’s qualifications for each prospective adoption. Id. at 1262–63.
In this case, Plaintiff has not established the plus factor necessary to create a
protected liberty interest. Executive director Clements’s letter approving Plaintiff’s
transfer application conferred no state-recognized right or status upon him. The CDOC
regulation is clear: “[T]ransfer is a privilege and not a right. The governor of Colorado,
or the executive director [of CDOC], at their sole discretion, may approve or deny the
transfer of an offender.” Colo. Dep’t of Corr. Admin. Reg. 550-05(IV)(B) (emphasis
added). That statement is categorical. Nothing in the regulation prohibits the governor or
the executive director from a change of mind after signing the letter. Here the alleged
reversal occurred before the DOJ received any approval from the State; but even if
approval had already been sent, no provision of the regulation deprives Colorado
authorities of discretion to cancel authority at any time before the prisoner is actually
removed from the State—either because of the receipt of additional information or simply
because of reconsideration. In short, Plaintiff had acquired no “legal status” from the
executive director’s alleged signature on his letter. The alleged defamatory statements by
Defendants that purportedly changed the executive director’s decision therefore did not
alter Plaintiff’s legal status.
Plaintiff contends, however, that despite the language of the regulation granting
discretion to the executive director (and the governor), the executive director’s signature
on the initial approval letter actually did confer on him a legal status—namely, the “status
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. . . of a prisoner approved for an international transfer at the state level.” Aplt. Br. at 23–
24. He relies on a portion of the regulation governing the flow of paperwork in the
approval process: “Upon approval of the transfer application by the executive director,
the Offender Services shall forward a completed application packet to the United States’
Department of Justice.” Colo. Dep’t of Corr. Admin. Reg. 550-05(IV)(D)(7). According
to Plaintiff, he “had a right, under the mandatory procedures of CDOC AR 550–05, to
have the Office of Offender Services transmit [that] approval letter to the DOJ.” Aplt.
Br. at 23–24. As we understand Plaintiff’s position, once the executive director signed
the initial letter, Plaintiff had received “approval” from Colorado for the international
transfer, and the executive director and governor lost their discretion to revoke that
approval. We are not disposed to interpret a paperwork provision in the “Transfer
Application Process” section of the regulation as limiting the substantive power conferred
on the executive, and the Colorado authorities obviously interpreted the regulation just as
we do.
But even if we were to accept Plaintiff’s construction of the regulation, we would
still deny his claim. To begin with, we question whether such “state-approval” status is
an adequate plus factor. It was hardly the sort of status that one could take to the bank.
Plaintiff’s future incarceration in Saudi Arabia was still dependent on the favorable
exercise of discretion by two other institutions. Before Plaintiff could be transferred
there, he not only needed approval by the State of Colorado, but also by Saudi Arabia and
by the DOJ, whose decision, like that of Colorado, is discretionary. See Bagguley, 953
F.2d at 662; Lopez-Ortiz, 1995 WL 364686, at *2. We also note that the executive
17
director’s letter denying transfer did not render Plaintiff permanently ineligible for a
prison transfer. On the contrary, the letter informed him that if he completed
rehabilitative sex-offender treatment, it “could result in [his] eventual parole or transfer to
a Saudi Arabian prison.” Supp. App. at 121. This does not appear to be the sort of
“significant” change required by Paul. See 424 U.S. at 711. With the approval letter, the
transfer to Saudi Arabia was still contingent on discretionary decisions by two other
governments. And without the letter, transfer remains a possibility if Plaintiff cooperates.
Moreover, Plaintiff’s argument ultimately undermines rather than supports his
demand for a name-clearing hearing. If Plaintiff were to prevail on his contention that
the executive director’s signature on the original letter deprived that official of discretion
to change his mind about approval of Plaintiff’s transfer to Saudi Arabia, then due
process did not require that he be granted a name-clearing hearing before Colorado
changed its position. All Plaintiff would need to do is obtain a ruling (perhaps ultimately
by a court) adopting his view that the State could not change its position on the transfer.
With such a ruling, the truth of the allegations against Plaintiff would become
irrelevant—he would receive state approval regardless. Hence, a hearing regarding the
truth of the allegations would be pointless. Ironically, to establish that the State’s
rescission of what he terms its initial approval constituted a change in legal status,
Plaintiff argues that the State had no discretion to rescind, thereby rendering it a moot
18
point whether the allegations against him were true.5 The State’s failure to provide him a
name-clearing hearing thus did not deprive him of due process. The situation would be
similar to that in Codd, 429 U.S. at 627–29, where the Supreme Court explained that a
name-clearing hearing would be of no use in that case: “[I]f [the plaintiff] does not
challenge the substantial truth of the material in question, no hearing would afford a
promise of achieving [a favorable] result for him. . . . [The plaintiff] has therefore made
out no claim under the Fourteenth Amendment that he was harmed by the denial of a
hearing, even were we to accept in its entirety the determination . . . that the creation and
disclosure of the file report otherwise amounted to stigmatization.”
Finally, we observe that allowing a decision by correctional authorities regarding
treatment of a prisoner to satisfy the plus factor would be in tension with the Supreme
Court’s decision in Sandin. To encourage codification of prison policy by prison
authorities and to avoid undue judicial interference in correctional matters, the Court in
that case, as discussed above, held that constitutional due process would be implicated
only if the prison subjected an inmate to restraints that posed an “atypical and significant
hardship . . . in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484.
But we suspect that almost all adverse decisions by prison authorities with respect to an
inmate are predicated on information about the inmate from some source. If a
constitutional liberty interest were recognized whenever the communication of that
5
Plaintiff has not argued (and we see no basis for such an argument anyway) that once
an initial letter is signed, rescission of approval is permissible only upon a showing that a
substantive standard (say, good cause) is met.
19
information could be characterized as a defamation, courts could well often find
themselves back in the business of supervising correctional decisions.6
In sum, Plaintiff fails to adequately allege a stigma-plus claim, as he has not
shown a significant alteration in a state-recognized legal status or any other government
infringement upon his liberty interests.7
III. CONCLUSION
We AFFIRM the district court’s dismissal of Plaintiff’s action.
6
Plaintiff complained in his reply brief that Defendants’ arguments improperly relied on
materials outside the complaint. Our opinion, however, does not turn on any factual
material outside the scope of a motion to dismiss. In ruling on Defendants’ motion to
dismiss, we may properly rely on matters that we can judicially notice and materials
referenced in Plaintiff’s complaint. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.
2010) (court may consider “matters of which [it] may take judicial notice” in ruling on
motion to dismiss); GFF Corp. v. Associate Wholesale Grocers, Inc., 130 F.3d 1381,
1384 (10th Cir. 1997) (if “document is referred to in the complaint and is central to the
plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court to
be considered on a motion to dismiss”).
7
Plaintiff does not contest that if he cannot state a procedural-due-process claim, he
necessarily cannot state a claim of conspiracy to violate his due-process rights. See
Dixon v. City of Lawton, Okla., 898 F.2d 1443, 1449 (10th Cir. 1990) (“[W]e join those
courts which have recognized that to recover under a § 1983 conspiracy theory, a plaintiff
must plead and prove not only a conspiracy, but also an actual deprivation of rights;
pleading and proof of one without the other will be insufficient.”).
20