Mariani v. Stommel ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 16, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
M ARK DERR M ARIANI,
Plaintiff - Appellant, No. 07-1068
v. (D. Colorado)
JO SEPH STOM M EL, Administrator in (D.C. No. 05-cv-01406-W DM -M EH )
his official capacity, Colorado Sex
Offender Treatment and M onitoring
Program; JOSEPH ORTIZ, Director,
in his official capacity, Colorado
D epartm ent of C orrections; G ARY K.
W ATKINS, W arden, in his official
capacity, Fremont Correctional
Facility; DONICE NEAL, W arden, in
her official capacity, Arrowhead
Correctional Facility; CH AR LES
OLIN, personally and in his official
capacity, Full Operating Level
Treatm ent Provider; D WIG H T
M ARTINEZ, Personally and in his
official capacity, SO TM P Clinician,
Defendants - Appellees.
OR D ER AND JUDGM ENT *
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. 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not binding precedent except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before LUC ER O, HA RTZ, and GORSUCH, Circuit Judges.
M ark M ariani, a state inmate appearing pro se, appeals from the district
court’s dismissal of his civil-rights action against certain employees of the
Colorado Department of Corrections (CDOC). His complaint alleged deprivation
of various constitutional rights in connection with his internal prison
classification as a sex offender. The court dismissed M r. M ariani’s complaint and
denied his motion to amend. W e have jurisdiction under 28 U.S.C. § 1291 and
affirm.
I. B ACKGR OU N D
M r. M ariani is in the custody of the CDOC. W hile in prison in 1995 he
was convicted of, among other things, “rape, attempt, and complicity” under the
CDOC disciplinary code. M ariani v. Colo. Dep’t of Corrs., 956 P.2d 625, 627
(Colo. C t. A pp. 1997). B ased on this disciplinary conviction, the CDOC
classified him as an S-3 sex offender in 2004. 1
1
The CDOC classifies offenders as follow s:
1. S5 - Individuals with past or current felony sexual
offense convictions.
2. S4 - Individuals whose history indicates sexual
assaults or deviance for which they may not have
been convicted. These cases often involve plea
bargains where the factual basis of the crime
involved a sex offense. This category also
includes misdemeanor convictions and juvenile
(continued...)
-2-
On July 27, 2005, M r. M ariani filed in the United States District Court for
the District of Colorado a complaint against six employees of CDOC under
42 U.S.C. § 1983, alleging that (1) the defendants violated his due-process rights
by labeling him a sex offender based on his prison disciplinary conviction; (2)
CDOC Administrative Regulation (A R) 750-02, on its face, violates his right to
procedural due process because it does not permit him to appeal his sex-offender
classification; and (3) CDOC AR 750-02, on its face, violates his right to equal
protection because prisoners covered by the regulation are entitled to a hearing
following reclassification but others, such as S-3 sex offenders, are not.
The district court granted the defendants’ motions to dismiss. The court
concluded that (1) M r. M ariani’s classification did not violate his right to
procedural due process, because the hearing before his disciplinary conviction
provided sufficient due process for his later S-3 classification; (2) M r. M ariani
1
(...continued)
convictions for sex offenses.
3. S3 - Individuals who, while incarcerated, have committed sex
offenses against staff or offenders, or who have displayed
behaviors which are suggestive of sexual abuse directed
tow ards another.
4. S2 - Individuals who were arrested or investigated for sexual
offenses but not charged or individuals w ho were initially
coded S5, S4, or S3 but are not recommended for treatment
after review by M ental Health.
5. S1 - Individuals with no history or indication of sex offense
behavior.
R. Doc. 3, Attach. 1, at 32 (CDOC AR 700-19).
-3-
did not have a right to appointment of counsel during his prison disciplinary
proceeding; (3) M r. M ariani’s complaint failed to allege a claim for denial of the
right to confront his accuser; (4) CDOC AR 750-02 did not violate M r. M ariani’s
due-process rights, because M r. M ariani had received all the process that was due
at his prior disciplinary hearing; and (5) CDOC AR 750-02 did not violate
M r. M ariani’s right to equal protection, because sex offenders are not a suspect
class and there are rational reasons for treating prisoners who have never been
found guilty of a sex offense differently from those who have. In addition, the
court denied M r. M ariani’s motion to add a due-process claim for bias of the
hearing officer who presided over the disciplinary hearing, determining that such
a claim would be barred by Heck v. Humphrey, 512 U.S. 477 (1994).
II. D ISC USSIO N
On appeal M r. M ariani reargues the claims raised before the district court
and challenges the court’s denial of his motion to amend the complaint. W e
review de novo the court’s dismissal under Federal Rule of Civil Procedure
12(b)(6). See Ash Creek M ining Co. v. Lujan, 969 F.2d 868, 870 (10th Cir. 1992).
“D ismissal of a pro se complaint for failure to state a claim is proper only where
it is obvious that the plaintiff cannot prevail on the facts he has alleged and it
would be futile to give him an opportunity to amend.” Curley v. Perry, 246 F.3d
1278, 1281 (10th Cir. 2001) (internal quotation marks omitted). W e review for
-4-
abuse of discretion the denial of a motion to amend a complaint. See Seymour v.
Thornton, 79 F.3d 980, 984–85 (10th Cir. 1996).
A. Dismissal of Amended Complaint
1. The S-3 Classification
M r. M ariani claims that he was denied due process when CDOC employees
classified him as an S-3 sex offender based on his prison disciplinary conviction.
This argument is without merit. In Chambers v. Colorado Department of
Corrections, 205 F.3d 1237, 1243 (10th Cir. 2000), we held that an inmate must
be afforded “some process” before he can be classified as a sex offender. W e did
not explain exactly how much process was required. But we agree with the
conclusion of Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997), a very similar case
concerning a claim by a prisoner classified as a sex offender, which was discussed
approvingly in Chambers. In Shimoda, 131 F.3d at 830–31, the court adopted the
due-process requirements of Wolff v. M cDonnell, 418 U.S. 539 (1974), which held
that a prisoner facing discipline must receive advance written notice, an
opportunity to call witnesses and present documentary evidence in his defense,
and a written statement by the fact-finder of the evidence relied on and the
reasons for the action taken. See Superintendent v. H ill, 472 U.S. 445, 454
(1985).
It is not necessary, however, that this process be provided at the
classification proceeding if the underlying offense has been established at a prior
-5-
hearing at which the prisoner w as afforded due process. Shimoda said: “An
inmate who has been convicted of a sex crime in a prior adversarial setting,
whether as the result of a bench trial, jury trial, or plea agreement, has received
the minimum protections required by due process. Prison officials need do no
more than notify such an inmate that he has been classified as a sex offender
because of his prior conviction for a sex crime.” Shimoda, 131 F.3d at 831.
Although Shimoda referred only to prior court proceedings, we see no need to so
limit the general principle. So long as a prior prison disciplinary proceeding
provided as much process as the prisoner would be entitled to at a classification
hearing, the prisoner has been treated fairly. As conceded in M r. M ariani’s
response to the defendants’ motion to dismiss, he received at his disciplinary
hearing the process required by Wolff. The S-3 classification was an automatic
consequence of M r. M ariani’s disciplinary conviction. Therefore, there would be
no need for further fact-finding or a plea to official discretion in a classification
proceeding. The only process due M r. M ariani was notification that he had been
classified as a sex-offender based on his prior disciplinary conviction. This was
done.
As to M r. M ariani’s claim that he was denied the right to counsel during his
prison disciplinary proceedings, prisoners do not “have a right to either retained
or appointed counsel in disciplinary hearings.” See Wolff, 418 U.S. at 570. W e
therefore affirm the district court’s ruling.
-6-
W e also affirm the denial of M r. M ariani’s claim that he was denied the
right to confront his accuser. W e agree with the district court that M r. M ariani
failed to raise this issue in his complaint and did not allege sufficient facts to
support such a claim. See Baxter v. Palmigiano, 425 U.S. 308, 321, 322 & n.5
(1976) (no general right to confront and cross-examine adverse witnesses in a
prison disciplinary proceeding).
2. Constitutional Challenges to CDO C AR 750-02
CDOC AR 750-02 provides “unadjudicated offenders” with a right to a
hearing before they can be classified as sex offenders. R. Doc. 2, Attach. 1, at 17.
An “unadjudicated offender” is a prisoner “who has not been adjudicated of a sex
offense by a court or administrative board.” Id. at 16.
M r. M ariani claims that CDOC AR 750-02 is facially unconstitutional for
two reasons. First, he argues that the regulation violates his right to procedural
due process because it does not permit him, as an adjudicated S-3 sex offender, to
appeal his sex-offender classification. Second, he contends that the regulation
violates his right to equal protection because some prisoners are entitled to a
hearing following reclassification but others are not. At the outset we note that
M r. M ariani can attack the regulation only insofar as it impairs his own
constitutional rights; that the regulation may offend the rights of others is not an
issue before us. See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973)
(“Embedded in the traditional rules governing constitutional adjudication is the
-7-
principle that a person to whom a statute may constitutionally be applied will not
be heard to challenge that statute on the ground that it may conceivably be
applied unconstitutionally to others, in other situations not before the Court.”)
M r M ariani’s due-process claim is without merit. Just as there is no due-
process right to appeal a final judgment in a criminal case, see Halbert v.
M ichigan, 545 U.S. 605, 610 (2005) (“The Federal Constitution imposes on the
States no obligation to provide appellate review of criminal convictions.”), an
inmate in state prison does not have a constitutional right to appeal his sex-
offender classification in a prison administrative proceeding. Accordingly,
M r. M ariani’s due-process claim must fail.
W e also affirm the district court’s ruling regarding M r. M ariani’s equal-
protection claim. “Unless it provokes strict judicial scrutiny, a state practice that
distinguishes among classes of people will typically survive an equal protection
attack so long as the challenged classification is rationally related to a legitimate
governmental purpose.” Vasquez v. Cooper, 862 F.2d 250, 251–52 (10th Cir.
1988). Strict scrutiny is appropriate only when the classification either involves a
suspect class or interferes with a fundamental right. See id. at 252. M r. M ariani
does not contend, nor can he, that the classifications at issue involve a suspect
class. Cf. Riddle v. M ondragon, 83 F.3d 1197, 1207 (10th Cir. 1996) (sex
offenders do not constitute a suspect class). And he has not asserted the violation
of a fundamental right. The classification M r. M ariani challenges is therefore
-8-
subject only to rational-basis review. The burden is on him to establish that the
regulation is “irrational or arbitrary and that it cannot conceivably further a
legitimate governmental interest.” United States v. Phelps, 17 F.3d 1334, 1345
(10th Cir. 1994). He has failed to carry that burden. It is sensible, much less
rational, to provide procedural protections (including an appeal) only when fact-
finding is necessary to determine the prisoner’s classification. Adjudicated
offenders, such as M r. M ariani, have already been granted an evidentiary hearing
with suitable procedural protections to determine the dispositive facts.
B. M otion to Am end
M r. M ariani appeals the district court’s denial of his motion for leave to
file an amended complaint adding a claim of bias of the hearing officer. The
court determined that the amendment would be futile because such a claim would
be barred by Heck, 512 U.S. 477. Heck held that a state prisoner’s claim for
damages under § 1983 is not cognizable if “a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence” unless the
prisoner can demonstrate that the conviction or sentence has been previously
invalidated. Id. at 487. In Edwards v. Balisok, 520 U.S. 641, 648 (1997), the
Court followed Heck in a case indistinguishable from the one before us. The
defendant in Edwards was the hearing officer who had presided at a disciplinary
hearing that resulted in the loss of good-time credits by the prisoner plaintiff.
The prisoner, suing for damages and declaratory relief, alleged that the hearing
-9-
officer had denied him due process by his bias and deceit. See id. at 647. The
Court held that the suit was barred because the allegations necessarily implied the
invalidity of the punishment imposed. See id. at 645–48. Because M r. M ariani’s
allegations of bias of the hearing officer necessarily imply the invalidity of his
prison disciplinary conviction, the district court did not abuse its discretion in
denying him leave to amend.
III. C ON CLU SIO N
W e AFFIRM the district court’s dismissal of M r. M ariani’s complaint and
denial of his motion to amend the complaint.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-10-