Riley v. DuBois

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2039
RICHARD RILEY, ET AL.,
Plaintiffs, Appellants,
v.
LARRY E. DUBOIS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
Christopher Masonoff, Sr., John Tarrant and Charles Mitchell on
brief pro se.
Nancy Ankers White, Special Assistant Attorney General, and
William D. Saltzman, Department of Correction, on brief for appellee.
October 14, 1997
Per Curiam. In 1994, the Massachusetts Commissioner of
Correction promulgated a "sex offender treatment" program
("the program"), see 103 DOC 446, designed to provide
treatment for those inmates "with a present indication or
prior history of involvement in the commission of sex
offenses," id. 446.07. With a sequential series of
treatment phases, first at the medium-security level and then
in minimum-security and pre-release settings, the program is
intended to offer "a continuum of service from the time an
inmate with such a background is committed, until he/she is
released to the community, and hopefully beyond." Id. While
the program is voluntary, any inmate who declines to
participate (or who has not completed the initial treatment
stages) is barred from moving beyond minimum security. See
Dominique v. Weld, 73 F.3d 1156, 1161 n.8 (1st Cir. 1996)
(discussing program).
The plaintiffs here are four inmates who have declined
to participate in the program, allegedly out of fear of
retribution from other prisoners should their sex-offender
status become known. They have accordingly been confined to
medium security with a consequent loss of privileges.
Plaintiff Tarrant further complains that he has been denied
parole as a result, while plaintiff Masonoff protests that
his parole reserve date has been rescinded. All of the
plaintiffs committed their offenses before the program was
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introduced. Three of them were allegedly screened and
"cleared" under an earlier regime calling for the indefinite
civil commitment of "sexually dangerous persons." See Mass.
G. L. c. 123A.
In this pro se action under 42 U.S.C. 1983, plaintiffs
insist that applying the program to them is impermissible on
a variety of constitutional and other grounds. Declaratory
and injunctive relief and damages are sought; the
Commissioner of Correction is the sole named defendant. From
an adverse award of summary judgment, plaintiffs now appeal.
We affirm.
Extended discussion is unnecessary. Plaintiffs'
principal contention, which underlies many of their claims,
is that it is improper to subject them to the program after
they had been cleared under the c. 123A regime. In their
view, the program is simply a "mirror image"--a revamped
version--of the c. 123A system, which could not be applied to
them absent some intervening sexual misconduct. They argue
that doing so violates notions of due process, equal
protection, ex post facto law, res judicata and collateral
estoppel. We disagree. The two regimes share nothing more
than a common purpose of treating sex offenders. Whereas c.
123A involves involuntary and indeterminate civil commitment
based upon a judicial finding of sexual dangerousness, the
program involves a voluntary treatment scheme that can affect
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a prisoner's classification level but does not alter his
underlying criminal sentence. That one has previously been
determined not to be a "sexually dangerous person" under c.
123A thus does not preclude subjecting him to the program.
Applying the program to plaintiffs does not otherwise
violate due process. Imposing limitations on a prisoner's
access to minimum security entails no "atypical and
significant hardship" under Sandin v. Conner, 515 U.S. 472,
484 (1995). See, e.g., Dominique, 73 F.3d at 1158-61
(finding prisoner's removal from work release and restriction
to medium security to be permissible under Sandin). Nor is
due process implicated by the denial of parole, see, e.g.,
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979),
or by the rescission of a parole reserve date, see, e.g.,
Jago v. Van Curen, 454 U.S. 14 (1981) (per curiam); Lanier v.
Massachusetts Parole Bd., 396 Mass. 1018 (1986) (rescript).
Plaintiffs' equal protection claim is also misplaced; sex
offenders are not a suspect class, see, e.g., Lustgarden v.
Gunter, 966 F.2d 552, 555 (10th Cir. 1992), and a treatment
program such as this is rationally related to the legitimate
state interest in protecting public safety, see, e.g., Neal
v. Shimoda, 905 F. Supp. 813, 819 (D. Haw. 1995); see also
Martel v. Feidovich, 14 F.3d 1, 2-3 (1st Cir. 1994) (per
curiam). Nor does the program constitute a bill of
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attainder. See, e.g., Schafer v. Moore, 46 F.3d 43, 45 (8th
Cir. 1995).
As to whether the program might constitute an ex post
facto violation by resulting in the deferral or denial of
parole (or of a parole hearing), we need express no general
view.1 At least one court has held, albeit in a case
1
predating California Dep't of Corrections v. Morales, 514
U.S. 499 (1995), that conditioning parole on an inmate's
participation in a sex offender treatment program can violate
the Ex Post Facto Clause. See Parton v. Armontrout, 895 F.2d
1214, 1215-16 (8th Cir. 1990); cf. Knox v. Lanham, 895 F.
Supp. 750, 756-58 (D. Md. 1995) (invalidating restrictions on
parole eligibility for "lifers"). Contra Russell v. Eaves,
722 F. Supp. 558, 560 (E.D. Mo. 1989), appeal dismissed, 902
F.2d 1574 (8th Cir. 1990). Yet plaintiffs have presented no
direct claim that this is what happened here; indeed, the
interplay between the program and the parole system is
unexplained on the present record. Nor, in the course of
their ex post facto discussion, have they referred to parole
in anything more than oblique fashion--either below or on
appeal. Plaintiffs bore the burden of establishing an ex
post facto violation. See Morales, 514 U.S. at 510 n.6. It
1 Contrary to defendant's suggestion, our Dominique
1
decision does not appear to address this issue, much less
"foreclose" it. There is no indication that any complaint
was there voiced regarding the program's effect on parole
eligibility.
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suffices here to conclude that the minimal facts they have
adduced and the perfunctory arguments they have advanced fall
short of doing so.
Plaintiffs' remaining claims are rejected for the
reasons recited by the district court (or because they
require no separate comment).
Affirmed.
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