                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                MAY 18 2004
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 JOHN HERRERA,

           Plaintiff-Appellant,
 v.                                                           No. 03-2248
 JOE WILLIAMS, Warden, Central NM                  (D.C. No. CIV-03-981 WPJ/DJS)
 Correctional Facility, in his individual and             (D. New Mexico)
 professional capacities; ROBERT J.
 PERRY, Secretary of New Mexico
 Department of Corrections, in his
 individual and professional capacities;
 JOHN DOE, in his individual and
 professional capacities; RICHARD ROE,
 in his individual and professional
 capacities,

           Defendants-Appellees.


                                  ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, BRISCOE and HARTZ, Circuit Judges.


       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


       *
        This order is not binding precedent, except under the doctrines of law of the case,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.
submitted without oral argument.

       Plaintiff John Herrera, a state prisoner appearing pro se, appeals the district court’s

dismissal of his complaint for failure to state a claim. We exercise jurisdiction pursuant

to 28 U.S.C. § 1291 and affirm.

                                              I.

       Herrera is a prisoner at the Southern New Mexico Correctional Facility in Las

Cruces, New Mexico. He filed his complaint under 42 U.S.C. §§ 1983, 1985, and 1986,

claiming officers and agents of the New Mexico Department of Corrections violated his

Eighth and Fourteenth Amendment rights. Specifically, he alleged that, without a

determination of his mental state, the Central New Mexico Correctional Facility forced

him to remain in a maximum security mental health unit. Additionally, in his amended

complaint, Herrera alleged post-conviction application of the New Mexico Sex Offender

Registration and Notification Act, N.M. Stat. Ann. § 29-11A-1 (2004), violated his rights

under the ex post facto clause. The district court dismissed Herrera’s complaint for

failure to state a claim.

                                              II.

       Refusal to transfer Herrera from a maximum to a medium security facility does not

rise to the level of a due process violation. Prisoners do not have a liberty interest in a

particular prison classification where the state retains discretion in classifying prisoners.

See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994); Bailey v. Shillinger, 828


                                               2
F.2d 651, 652 (10th Cir. 1987). The Supreme Court has held that classifying a prisoner in

administrative segregation does not involve deprivation of a liberty interest independently

protected by the Constitution’s due process clauses. See Hewitt v. Helms, 459 U.S. 460,

468 (1983).

       Nor has Herrera alleged facts which, if proven, would tend to show he was

subjected to cruel and unusual punishment. “[P]lacing an inmate in segregation as a

preventive measure does not necessarily violate the Eighth Amendment.” Shillinger, 828

F.2d at 653. To prevail, Herrera must allege facts which “involve the wanton and

unnecessary infliction of pain” or are “grossly disproportionate to the severity of the

crime warranting imprisonment.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

                                             III.

       Although the claim is vague and unclear, Herrera appears to contend that

application of the New Mexico Sex Offender Registration Act to him violates the ex post

facto clause because he was convicted before the Act was effective. Among laws

prohibited by the ex post facto clause are those that “make[] more burdensome the

punishment for a crime, after its commission.” Collins v. Youngblood, 497 U.S. 37, 42

(1990) (internal quotations omitted). However, sex offender registry laws do not fall

within the purview of the ex post facto clause because they impose only civil burdens

upon sex offenders and do not implicate criminal punishments, as required by the ex post

facto clause. See Femedeer v. Haun, 227 F.3d 1244, 1253 (10th Cir. 2000) (analyzing


                                              3
Utah sex offender registry); see also Smith v. Doe, 538 U.S. 84 (2003) (upholding Alaska

sex offender registration act against ex post facto clause challenge on grounds that act

was intended as a civil, non-punitive statute). Herrera has presented no evidence tending

to establish the New Mexico statute is in any way different.

       AFFIRMED. All pending motions are DENIED.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




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