
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1466                                   JAMES DOMINIQUE,                                Plaintiff, Appellant,                                          v.                                WILLIAM WELD, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin,* Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Wendy B. Golenbock, for appellant.            __________________            Stephen  G. Dietrick,  Deputy  General Counsel,  with  whom  Nancy                                   _______________________        Ankers  White,  Special Assistant  Attorney  General,  and Herbert  C.                        ____________________________________        Hanson,  Senior  Litigation   Attorney,  Massachusetts  Department  of                 _____________________________        Correction, were on brief for appellees.                                 ____________________                                   January 18, 1996                                 ____________________                                    ____________________        *Judge  Boudin  heard  oral  argument  in  this  matter  but  has  not        participated  in the issuance of  the panel's opinion.   The remaining        two  panelists therefore  issue  this opinion  pursuant  to 28  U.S.C.          46(d).                      CAMPBELL,  Senior Circuit  Judge.   Plaintiff James                                 _____________________            Dominique, a  sentenced  inmate in  the Massachusetts  prison            system, was returned to confinement after he had been allowed            to participate  in a  work  release program  for almost  four            years.  He appeals from the district court's refusal to order            reinstatement of his work release status and its dismissal of            his related claims,  brought under 42 U.S.C.   1983, alleging            violations  of  the  Due  Process Clause  of  the  Fourteenth            Amendment  and the Ex Post  Facto Clause.   We affirm, albeit            for  different  reasons  in  light of  recent  Supreme  Court            decisions.            I. Facts            I. Facts                      Plaintiff  was  imprisoned  in  1983  for  multiple            crimes including incest and is scheduled for release  in June            2000.   In  August 1987,  he was  transferred to  the minimum            security Massachusetts Correctional Institution  at Lancaster            ("MCI-Lancaster").   In May 1988, the  Superintendent of MCI-            Lancaster  permitted him  to  renew his  driver's license  in            connection with work he was then doing on state vehicles.  In            August 1990,  plaintiff was  approved for the  Community Work            Release   Program.     He  became   a  mechanic   for  R.M.J.            Transportation, Inc., and the following year was permitted to            open his own vehicle repair business.                                           -2-                      Plaintiff  remained  in good  standing in  the work            release program.  However,  in the summer of 1993,  access to            his license and the keys to his personal vehicle was revoked,            causing him to  lose his job  at R.M.J. Transportation.    In            April  of 1994, he was removed from the work release program.            On May 5, 1994, because he was deemed a security risk, he was            transferred from MCI-Lancaster to a medium security facility,            MCI-Shirley.  No hearing occurred before the latter transfer,            but reclassification hearings were subsequently held  on June            13 and September 23,  1994.  Each time, a  committee majority            recommended   plaintiff's  transfer   to  a   lower  security            facility.  The  Commissioner overruled these recommendations.            Plaintiff remains at MCI-Shirley.                      Defendants1  say  that  they   revoked  plaintiff's            privileges  because he  remains  in denial  of his  crime (in            particular,  the  incest),  and  because he  had  too  little            accountability at  his repair business.   They justify taking            away  plaintiff's license  because of revised  DOC guidelines            providing that only inmates within six  months of an approved            release  date are eligible to  use their licenses.   They add            that his  crime makes him  a risk to  the public safety,  and            that,  having been  denied parole on  three occasions,  he is                                            ____________________            1.     The   defendants   are  William   Weld,   Governor  of            Massachusetts,  Thomas  Rapone,   then-Commissioner  of   the            Department of Public Safety, Larry E. Dubois, Commissioner of            the Massachusetts Department of Correction, and Luis Spencer,            Superintendent of MCI-Lancaster.                                         -3-            more likely to attempt to escape.  Plaintiff responds that he            has  never violated  any condition  of the  Community Release            Agreement  ("Agreement").2    He  claims  that  his   removal            resulted from media and public uproar following an incident -            -  wholly  unrelated to  him  --  in which  an  MCI-Lancaster            escapee shot a police  officer.  Plaintiff was never  given a            written  statement   of  reasons   for  his  removal.     New            regulations concerning the  treatment of  sex offenders  make            plaintiff presently ineligible for work release.                      In  his  district court  action,  plaintiff alleged            that these  changes in  his status violated  the Due  Process            Clause  of the  Fourteenth Amendment  and the  Ex Post  Facto            Clause.  He requested  a preliminary injunction ordering that            he  be reinstated to the work release program.  In dismissing            the due process claim, the district court held that plaintiff            had shown  neither  a constitutionally-derived  nor a  state-                                            ____________________            2.    The  Community  Release Agreement  for  Lancaster  pre-            release programs  requires a participating  inmate to signify            his understanding  that "[i]n accepting and  participating in            community  release  programs  including  all  furloughs, work            release,   and   education   release    opportunities,   [he]            voluntarily accept[s]  the following conditions . . . ."  The            participant cannot leave the state, cannot leave his assigned            location during breaks  unless authorized to  do so, must  be            aware  of specific  requirements  and arrangements  for  each            specific  release  activity,  must  cooperate  with requested            medical examinations  or searches of lockers  or outside work            areas, and must conduct himself generally "in accordance with            the laws of the state and community."                 The Agreement states that "[a]ny violation  of community            release  policies will  result in  [the participant's]  being            subject to disciplinary action or prosecution and will not be            considered in the future community participation requests."                                         -4-            created  liberty interest.    This being  so, the  Fourteenth            Amendment  did not  require the  state to  provide procedures            prior to removing him  from the program and returning  him to            prison.  The district court also found no violation of the Ex            Post  Facto  Clause,  because the  new  regulations governing            participation in  work release  were not punitive  but rather            related to the  public safety.   The court denied  injunctive            relief, as plaintiff had not shown a likelihood of success on            the merits.3                                            II. Standard of Review            II. Standard of Review                 The  district  court  dismissed  plaintiff's  claims  in            response  to  defendants'  motion   in  the  alternative  for            dismissal under Fed.  R. Civ. P. 12(b)(6) or Fed.  R. Civ. P.            56.    The  district  court recited  the  standard  governing            12(b)(6)  motions  to dismiss,  but  it  relied  in  part  on            materials outside  of the pleadings  (including the Agreement            and  affidavits)  to determine  whether  plaintiff enjoyed  a            protected liberty  interest entitling  him to procedural  due            process before  removal from  the work release  program.   We                                            ____________________            3.   The  district court dismissed plaintiff's  pendant state            law   claims  without   prejudice,  pursuant  to   28  U.S.C.             1367(c)(3).  While  appellant's   counsel  claimed  at  oral            argument  a lack  of substantive  as well  as procedural  due            process,  the former theory is not briefed nor does it appear            to have  been developed below.   Accordingly, it  was waived.            See Grella  v. Salem Five Cent Sav. Bank, 42 F.3d 26, 36 (1st            ___ ______     _________________________            Cir. 1994).                                              -5-            therefore  treat the motion as one for summary judgment.  See                                                                      ___            Smith v.  Massachusetts Dep't  of Correction, 936  F.2d 1390,            _____     __________________________________            1394 (1st Cir. 1991); Fed. R.  Civ. P. 12(b)(6).  We review a            grant of summary judgment  de novo, viewing the facts  in the                                       _______            light most favorable  to the nonmovant, plaintiff.   Coyne v.                                                                 _____            Taber Partners I, 53 F.3d 454, 457 (1st Cir. 1995).            ________________            III. Due Process Clause of the Fourteenth Amendment            III. Due Process Clause of the Fourteenth Amendment                 A. The District Court Decision                 A. The District Court Decision                      The  Fourteenth  Amendment provides  that  no state            shall  "deprive  any person  of  life,  liberty, or  property            without due  process of law."   U.S. Const. amend.  XIV.  The            focal  issue  here is  whether  plaintiff was  deprived  of a            protected liberty interest.   Plaintiff has not asserted that            he  possessed  a  liberty  interest created  by  the  federal            Constitution   itself.4    Rather,   he  has  contended  that                                            ____________________            4.    The  Supreme  Court  has recognized  that,  in  certain            circumstances,  the Constitution  itself may  give rise  to a            liberty interest.  See, e.g.,  Washington v. Harper, 494 U.S.                               ___  ____   __________    ______            210,   221-222   (1990)   (involuntary    administration   of            antipsychotic  drugs); Vitek  v. Jones,  445 U.S.  480 (1980)                                   _____     _____            (involuntary  commitment to a  mental hospital); Morrissey v.                                                             _________            Brewer,  408   U.S.  471   (1972)  (revocation   of  parole).            ______            Generally,  prisoners   under  confinement  do   not  have  a            constitutionally-derived liberty interest.  See, e.g., Hewitt                                                        ___  ____  ______            v. Helms,  459 U.S.  460  (1983) (state  action taken  within               _____            sentence  imposed);  Meachum v.  Fano,  427  U.S. 215  (1976)                                 _______     ____            (transfer  to higher  security prison);  Bowser v.  Vose, 968                                                     ______     ____            F.2d 105, 106 (1st Cir. 1992) (denial of furlough); Lanier v.                                                                ______            Fair, 876  F.2d 243, 246  (1989) (removal from  halfway house            ____            program);  Brennan v.  Cunningham, 813  F.2d  1, 6  (1st Cir.                       _______     __________            1987) (same).                                           -6-            Massachusetts  state  regulations and  the  Community Release            Agreement established a state-created liberty  interest which            defendants could not take away without providing due process.            The  regulations and Agreement, he argued, cabined officials'            discretion and  led him legitimately  to expect to  remain in            the work release program  so long as he did not  violate some            express condition.   Dominique relied on cases holding that a            liberty  interest  may be  created  by  "explicitly mandatory            language" within  state regulations.   See Kentucky  Dep't of                                                   ___ __________________            Corrections v. Thompson, 490 U.S. 454,  463 (1989); Hewitt v.            ___________    ________                             ______            Helms, 459  U.S.  460,  471-472  (1983);  see  also  Olim  v.            _____                                     ___  ____  ____            Wakinekona,  461   U.S.  238,  249   (1983)  ("particularized            __________            standards or criteria [to] guide the State's decisionmakers")            (citation  omitted).   Dominique  pointed  to  cases of  this            circuit holding that  a signed  agreement outlining  criteria            for  participation  in  and  removal from  a  prison  release            program  may  evidence  a  state-created   liberty  interest.            Lanier  v. Fair,  876 F.2d  243 (1st  Cir. 1989);  Brennan v.            ______     ____                                    _______            Cunningham, 813 F.2d 1 (1st Cir. 1987).            __________                                            ____________________                 The    Tenth    Circuit     recently    recognized     a            constitutionally-derived liberty interest in a case involving            a  state pre-parole  conditional  supervision program.    See                                                                      ___            Harper  v. Young, 64 F.3d  563, 566 (10th  Cir. 1995) (citing            ______     _____            Edwards v. Lockhart,  908 F.2d 299,  302-303 (8th Cir.  1990)            _______    ________            for the  proposition that parole  and work release  should be            viewed on a continuum, with the program at issue more closely            resembling  parole because  it allowed  a convict  "to exist,            albeit conditionally, in society on a full-time basis").                                                      -7-                      The district court  analyzed the state  regulations            and  Agreement under  Thompson,  Hewitt, Olim  criteria.   It                                  ________   ______  ____            concluded that the language relating to Dominique's  interest            in participating  and remaining  in the work  release program            was  too provisional  to create  a constitutionally-protected            liberty interest.  Neither  the regulations nor the Agreement            required officials to grant  work release status initially or            indefinitely.      Despite   certain   similarities   between            plaintiff's  Agreement and agreements  in Brennan and Lanier,                                                      _______     ______            the  district   court  determined  that,   under  our  latest            precedent,   language  of  a  more  mandatory  character  was            essential.5                       Plaintiff appealed.   Within  a week of  filing his            appellate  brief, the  Supreme  Court issued  its opinion  in            Sandin  v.  Conner,   infra,  modifying   the  standard   for            ______      ______    _____            determining   the  existence   of  a   state-created  liberty            interest.                                              ____________________            5.   See Bowser v. Vose, 968 F.2d 105, 108 (1st Cir. 1992) (a                 ___ ______    ____            regulation providing that "[a]  resident who satisfies one of            the  [six enumerated]  purposes . . . shall  be  eligible for            furlough" was insufficient to  create a liberty interest, for            "[a]bsent  from  the   regulations  . . . is  any   mandatory            language directing  that a  furlough must  be granted  to any                                                 ____            inmate who satisfies the  eligibility requirements"); Rodi v.                                                                  ____            Ventetuolo,  941  F.2d  22,   25  (1st  Cir.  1991)  (clearly            __________            mandatory  regulatory  language  placed definite  substantive            limits on officials' actions,  as state conceded); Smith, 936                                                               _____            F.2d at 1397 (court reserved judgment  on the inmate contract            because of a misconduct-based violation, but noted a  lack of            mandatory language  limiting discretion in  both the contract            and the regulations).                                         -8-                 B. Sandin v. Conner                    Sandin v. Conner                    ______    ______                      In  Sandin v. Conner, 115 S. Ct. 2293 (1995) (5-4),                          ______    ______            the Court criticized its  former precedent under which courts            examined the  language in  state statutes and  regulations to            determine  whether  a liberty  interest  was  created.   This            doctrine "encouraged prisoners to  comb regulations in search            of  mandatory  language  on  which to  base  entitlements  to            various state-conferred privileges."  Id. at 2299.  The Court                                                  ___            expressed two  policy concerns:  its  prior approach "creates            disincentives   for  States   to  codify   prison  management            procedures in the interest  of uniform treatment."  Id.   The                                                                ___            old  approach also  "has led  to the  involvement of  federal            courts in the day-to-day  management of prisons," contrary to            cases affording  state  officials appropriate  deference  and            flexibility in prison management.  Id.                                               ___                      The Court held that states may still create liberty            interests that afford prisoners due process protections,  but            explained:                      [T]hese   interests  will   be  generally                      limited to freedom from  restraint which,                      while not exceeding the sentence  in such                      an unexpected  manner as to  give rise to                      protection by  the Due Process  Clause of                      its own force . . . , nonetheless imposes                      atypical and significant hardship  on the                      _________________________________________                      inmate  in  relation   to  the   ordinary                      _________________________________________                      incidents of prison life.                       ________________________            Id. at 2300 (internal citations omitted) (emphasis supplied).            ___            Applying this standard  to the situation in Sandin, the Court                                                        ______                                         -9-            concluded  that disciplining  a prisoner  for thirty  days in            segregated confinement "did not present the type of atypical,            significant deprivation  in which a  state might  conceivably            create a liberty interest."  Id. at 2301.                                         ___                 C. Applying Sandin                 C. Applying Sandin                             ______                      Defendants argue that Sandin requires this court to                                            ______            affirm  the district  court's  dismissal  of plaintiff's  due            process  claim.   They agree  with the  lower court  that the            language of the regulations and Agreement was insufficient to            create  a  liberty  interest in  any  event,  but argue  that            removal from  work release and return  to regular confinement            did not meet Sandin's new threshold criterion of an "atypical                         ______            and significant  hardship . . . in  relation to  the ordinary            incidents  of  prison  life."   Id.  at  2300.   If  solitary                                            ___            confinement for thirty days  did not, in Sandin, rise  to the                                                     ______            level of  an  "atypical, significant  hardship," then  surely            removal from work release does not do so, defendants say.                        Plaintiff  replies that Sandin is unclear about the                                              ______            extent  to  which  the   standard  for  recognizing   liberty            interests has changed.  He argues that the Due Process Clause            still  protects inmates  against important  deprivations, and            that  removal  from work  release  and transfer  to  a higher            security  prison  constitute  an  "atypical  and  significant            hardship."                                           -10-                      We  have some  sympathy for  plaintiff's complaint.            His  removal  from a  work release  program  in which  he was            apparently  functioning well,  and his  transfer to  a medium            security facility,  may  well,  from  his  perspective,  seem            unjust.  But  the federal courts are not authorized by law to            second-guess  the  policies  of prison  administrators  in  a            general sense.    The  question assigned  to  us  is  whether            plaintiff had a liberty interest in remaining in work release            status,  such  that under  the  Fourteenth  Amendment he  was            entitled to due process of law before that privilege could be            revoked.   We are  constrained to agree  with defendants that            the new  threshold test  articulated in Sandin  precludes our                                                    ______            finding a liberty interest and bars relief.6                   As in Sandin, the state's action here did not in any way                       ______            affect  the duration of Dominique's state  sentence.  See id.                                                                  ___ ___            at 2301-2302.   Additionally, his transfer  to a more  secure            facility subjected him to  conditions no different from those            ordinarily  experienced  by large  numbers  of other  inmates            serving their sentences in customary fashion.  In Sandin, the                                                              ______            Supreme  Court observed  that  conditions  in the  segregated            confinement at issue "mirrored  those conditions imposed upon            inmates   in   administrative   segregation  and   protective                                            ____________________            6.  Sandin  applies retroactively  to the  present  case, the                ______            Supreme Court having applied the rule  announced in Sandin to                                                                ______            the parties in  that case.   See Rivers  v. Roadway  Express,                                         ___ ______     _________________            Inc.,  114 S. Ct. 1510, 1519 (1994); Harper v. Virginia Dep't            ____                                 ______    ______________            of Taxation, 113 S. Ct. 2510, 2517 (1993).            ___________                                         -11-            custody."  Id. at  2301 (footnote omitted).  The  Court found                       ___            support in this similarity  for the proposition that "[b]ased            on   a  comparison   between   inmates  inside   and  outside            disciplinary  segregation, the State's actions in placing him            there  for 30  days did  not work  a major disruption  in his            environment."   Id. (footnote omitted).   Similarly here, any                            ___            hardship  was  not "atypical"  in  relation  to the  ordinary            incidents of prison life.                      It is true that  there is a considerable difference            between the freedoms  Dominique enjoyed when  he was in  work            release  status  and the  conditions  of  incarceration at  a            medium security  facility.  To return  from the quasi-freedom            of work  release to  the  regimentation of  life within  four            walls  may  be said,  relatively  speaking,  to have  been  a            "significant" deprivation.   Nonetheless, confinement  within            four  walls of the type plaintiff now endures is an "ordinary            incident of prison life."   It is not "atypical."   The Court            has noted  that an  inmate's subjective expectations  are not                                         __________            dispositive of  the liberty-interest analysis.   See id., 115                                                             ___ ___            S.Ct. at 2301 n.9.                      If Dominique's  contrary argument were  to prevail,            we would  open the door to  finding an "atypical...restraint"            whenever  an  inmate  is  moved   from  one  situation  to  a            significantly harsher one that is, nonetheless, a commonplace            aspect of prison  existence.  For example, a liberty interest                                         -12-            could  be claimed if an inmate were moved into less agreeable            surroundings  than  his  initial  placement.    Similarly,  a            liberty interest might be claimed whenever authorities or the            state  legislature  decided to  eliminate  or  cut back  work            release  programs or  furloughs.   Such  changes, painful  to            those affected, could be  regarded under plaintiff's argument            as implicating liberty interests even though the prisoner was            never placed in conditions  going beyond the customary rigors            of  prison life.  Such an outcome, we believe, would directly            conflict with Sandin's teachings.   Sandin's new standard was                          ______                ______            expressly  adopted by  a majority  of  the Supreme  Court "to            afford  appropriate   deference  and  flexibility   to  state            officials trying  to manage a volatile environment."   Id. at                                                                   ___            2299.   The Court plainly intended to eliminate the basis for            federal due process  claims stemming from internal  transfers            and status changes that do not result in "atypical hardship,"            i.e.,  hardship beyond  the  norms of  ordinary prison  life.            ____            Hence the state's removal  of Dominique's measure of freedom,            replacing it  with confinement of a  sort commonly associated            with  ordinary prison life, did not violate anything that can            be termed a liberty  interest.  See Klos v.  Haskell, 48 F.3d                                            ___ ____     _______            81  (2d Cir.  1995)  (a  pre-Sandin  case denying  relief  on                                         ______            strikingly similar  facts,  cited with  apparent approval  in            Sandin, 115 S. Ct. at 2299-2300).            ______                                         -13-                      Plaintiff  urges  that execution  of  the Agreement            shows  that a matter sufficiently important to give rise to a            liberty  interest is at stake.  Prison officials, it is said,            do  not enter  into  agreements with  inmates concerning  the            ordinary incidents  of prison  life.   As the  district court            found, however, the  Agreement preserved broad decisionmaking            authority  of state  officials  and the  regulations did  not            impose any  duty  to retain  plaintiff  in the  work  release            program.    And,  that  analysis aside,  withdrawal  of  work            release privileges  did not  meet Sandin's threshold  test of                                              ______            working a  "significant and atypical hardship  in relation to            the  ordinary incidents of prison life."  While we may regret            the   disappointment   and  frustration   inherent   in  such            withdrawal, the hardship  was not "atypical."   Cf. Bulger v.                                                            ___ ______            United  States Bureau of Prisons, 65 F.3d 48, 49-50 (5th Cir.            ________________________________            1995)  (inmate terminated  from a  prison job  permitting the            automatic  accrual of  good-time  credits lacked  a protected            liberty interest,  despite  apparent  violation  of  a  state            regulation); see also  Mitchell v. Dupnik,  67 F.3d 216,  221                         ___ ____  ________    ______            (9th Cir. 1995) (inmate  lacked a protected liberty interest,            despite   corrections   officer's    violation   of    prison            regulations);  Orellana v.  Kyle, 65 F.3d  29, 32  (5th Cir.)                           ________     ____            ("the  ambit of  [prisoners'] potential  Fourteenth Amendment            due process liberty claims has been dramatically narrowed" by                                         -14-            Sandin), petition for cert. filed, (U.S.  Sep. 15, 1995) (No.            ______   ________________________            95-6743).                      Under  the standard  announced  in Sandin,  we hold                                                         ______            that  plaintiff's loss  of  work release  privileges did  not            affect any  state-created liberty interest of  his, hence did            not violate the Due Process Clause.7              IV. Ex Post Facto Clause            IV. Ex Post Facto Clause                      Plaintiff asserts a violation  of the Ex Post Facto            Clause  based  on  a   new  state  regulation  governing  the            treatment and  movement of  sex offenders from  commitment to            release.   See  103  DOC     446.8    The  regulation  became                       ___                                            ____________________            7.    The inmate  in Sandin  based his  claim to  a protected                                 ______            liberty interest on state  regulations alone, and not on  any            written agreement  with the state,  as is also  present here.            The parties have not  argued that Sandin is  inapplicable for                                              ______            this reason.  This court's prior relevant cases  have applied            a language-focused approach  to the state scheme as  a whole,            whether or not an  agreement was involved.  See,  e.g., Rodi,                                                        ___   ____  ____            941  F.2d at 26 ("Our own precedents similarly teach that the            appropriate  [Thompson/Hewitt] constitutional  analysis looks                          ________ ______            beyond   the  State's   statutes  to   administrative  rules,            regulations,  contractual  commitments,   and  the   like.");            Lanier, 876 F.2d at 248.            ______            8.    The Sex  Offender Treatment  policy applies  to inmates            serving a  sentence for  or convicted  in the  past of  a sex            offense, or serving a sentence for a non-sexual offense where            "[t]here are sexual overtones in  the reading of the official            version of a crime for which the inmate may have been charged            and  sentenced."   103 DOC  446.08.   The  policy's expressed            goal is "to create a system  in which there is 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.   446.07.                                  ___                 The policy requires identified sex offenders to complete            a four-phase treatment program  at a medium security facility                                         -15-            effective  in  October  1994,  at which  time  plaintiff  was            incarcerated  at the medium security facility to which he had            been  transferred following  his  removal from  work  release            earlier  that   year.     Plaintiff  does  not   dispute  the            Commonwealth's contention  that under  the regulation, he  is            presently  ineligible  to  participate in  the  work  release            program.  While the district court did not articulate a basis            for  this  ineligibility  (instead  assuming  that  was  so),            plaintiff appears  to be an  identified sex offender  who may            not be moved to a minimum  security facility, with associated            privileges,  unless  and until  he  successfully completes  a            treatment program,  admits his offense, and otherwise obtains            approval  for  a transfer.    See id.      446.07, 446.08(4),                                          ___ ___            446.13.                       The district court  rejected plaintiff's claim that            the regulation amounted  to punishment applied  retroactively            to  plaintiff's  offense.     The  court  reasoned  that  the            regulation  was "driven  by  safety concerns,  and  not by  a                                            ____________________            as  a  precondition  for   transfer.    It  outlines  further            transition phases and evaluation processes as well.  Transfer            appears  ultimately  possible   absent  "program   failures,"            defined to  include inmates  who  remain in  denial of  their            offense, those  who "refuse  to participate or  minimize with            regard  to their  offense(s),"  and those  at the  non-secure            facility treatment phase who move toward relapse or otherwise            become  "at risk."    Id.    446.13.   The  regulations  also                                  ___            contain a  sex offender "notice of  release" provision, which            is not at issue in this appeal.  See id.   446.14.                                             ___ ___                                         -16-            desire  to  impose  further  punishment on  prisoners."    We            affirm, again guided by a recent Supreme Court decision.9                      The Ex  Post Facto  Clause provides that  "No State            shall . . . pass  any . . . ex post facto Law."   U.S. Const.            art.  I   10.   Ex post  facto laws include  "'every law that            changes the  punishment, and  inflicts a  greater punishment,            than  the law annexed to the crime, when committed.'"  Miller                                                                   ______            v. Florida, 482 U.S. 423, 429 (1987) (quoting Calder v. Bull,               _______                                    ______    ____            3 U.S. (Dall.) 386, 390 (1798)).                        Defendants have not argued that the new  regulation            is  not a "law"  for ex post  facto purposes.   There is some            disagreement among the  circuits on this matter.   Cf. Bailey                                                               ___ ______            v.  Noot,  503  U.S.  952, cert.denied,  (1992)  (White,  J.,                ____                   ___________            dissenting) (noting  circuit split on whether  Clause applies            to revised  state parole regulations).10   In  past cases  we                                            ____________________            9.   Plaintiff's ex  post facto  claim is not  barred by  our            above  ruling that he lacks a protected liberty interest.  As            the Supreme Court has stated, "Evaluating whether a right has            vested  is important  for claims under  the Contracts  or Due            Process   Clauses,   which   solely    protect   pre-existing            entitlements  . . . .     The  presence  or   absence  of  an            affirmative, enforceable right  is not relevant,  however, to            the ex post facto prohibition. .  . ."  Weaver v. Graham, 450                                                    ______    ______            U.S.  24, 29-30 (1981); Jones v. Georgia State Bd. of Pardons                                    _____    ____________________________            & Paroles, 59 F.3d 1145, 1148 n.6 (11th Cir. 1995).              _________            10.  The  dispute  appears  to  turn  on  whether a  rule  is            legislative (based on a delegation of statutory authority) or            merely  interpretive,  and  whether  a  legislative  rule  is            binding or merely guides the exercise of discretionary power.            See, e.g., Jones,  59 F.3d  at 1149 n.8  (applying Clause  to            ___  ____  _____            state  parole   rules  and   comparing  cases);   Kellogg  v.                                                              _______            Shoemaker,  46 F.3d 503,  509 (6th Cir.)  (applying Clause to            _________            binding  parole regulations),  cert. denied,  116 S.  Ct. 120                                           ____________                                         -17-            have applied the Clause to the federal Sentencing Guidelines,            see,  e.g., United States v. Harotunian, 920 F.2d 1040, 1041-            ___   ____  _____________    __________            1042 (1st Cir. 1990), and rules issued by a state agency, see                                                                      ___            Martel  v.  Fridovich,   14  F.3d  1,   3  (1st  Cir.   1993)            ______      _________            (Massachusetts  Department of  Mental Health).   We  need not            address  the  possible  limits  of these  holdings,  for  the            parties  have  not  raised the  issue  and  we  find that  no            violation occurred, even  assuming arguendo  that the  Clause            applies  to the regulation at issue.  Accord Hamm v. Latessa,                                                  ______ ____    _______            Nos. 94-2018, 94-1999, slip  op. at 21 & n.14  (1st Cir. Dec.            27, 1995)  (declining to decide whether  a parole eligibility            policy was a "law" for ex post facto purposes).                      The Supreme Court has  reiterated recently that the            proper focus of ex post facto inquiry is whether the relevant            change  "alters  the   definition  of  criminal  conduct   or            increases  the  penalty  by  which a  crime  is  punishable."            _______________________            California Dep't of Corrections v. Morales, 115  S. Ct. 1597,            _______________________________    _______            1602  n.3 (1995)  (emphasis  supplied); see  also Collins  v.                                                    ___  ____ _______            Youngblood, 497 U.S.  37, 43  (1990) (citing  Calder, 3  U.S.            __________                                    ______            (Dall.) at 391-392).  Morales examined a California statutory                                  _______            amendment which authorized the Board of Prison Terms to defer                                            ____________________            (1995) and  116 S. Ct. 274  (1995); Francis v.  Fox, 838 F.2d                                                _______     ___            1147,  1149-1150 (11th  Cir. 1988)  (holding that  state work            release  regulation was not an ex post facto "law"); Faruq v.                                                                 _____            Herndon, 831 F. Supp. 1262, 1279-1280  (D. Md. 1993) (holding            _______            that  work release  and  security classification  regulations            were not ex post facto "laws"), aff'd, Briscoe v. Herndon, 56                                            _____  _______    _______            F.3d 60 (4th Cir. 1995).                                         -18-            for  up  to  three  years  parole  suitability  hearings  for            multiple murderers.    The  Court  found  no  ex  post  facto            violation,  because the  amendment  "create[d] only  the most            speculative  and  attenuated  possibility  of  producing  the            prohibited effect of increasing the measure of punishment for            covered crimes."  Morales, 115 S. Ct. at 1603.  The Court did                              _______            not  develop  a  precise  formula;  rather,  it  said,  these            judgments "must  be  a matter  of 'degree.'"   Id.  (internal                       ____                                ___            citation omitted).   It stated,  however, that a  change that            "simply 'alters the method to be followed' in fixing a parole            release date under identical substantive standards," but does            not change the applicable sentencing range, was insufficient.            Id.  at  1602  (internal  citation omitted);  cf.  Miller  v.            ___                                           ___  ______            Florida, 482 U.S. 423 (1987) (violation found where statutory            _______            amendment increased presumptive  sentencing range for certain            sexual offenses  and permitted departure only  for "clear and            convincing reasons");  Weaver v.  Graham, 450 U.S.  24 (1981)                                   ______     ______            (violation  found  where  the statute  retroactively  reduced            "gain  time" credits  to prisoners,  thereby  eliminating the            lower end of the possible range of prison terms).                      The question  here, as  in Morales, is  whether the                                                 _______            instant regulation "increases the penalty by which a crime is            punishable."   Morales, 115  S. Ct. at  1602 n.3.   It can be                           _______            argued that  the regulation increases the  penalty because it            subjects Dominique to a different and stricter prison regime:                                         -19-            unless  and  until he  successfully completes  the prescribed            treatment  program and admits  to a crime  he continually has            denied,  he must  remain confined  at no  less than  a medium            security   facility  and  remain  ineligible  for  privileges            associated with  lower security  imprisonment.  We  conclude,            however, that  this change in the  conditions determining the            nature  of his confinement while  serving his sentence was an            allowed alteration in  the prevailing  "legal regime"  rather            than  an "increased penalty" for ex post facto purposes.  See                                                                      ___            id.  at 1603  n.6;  cf. In  re  Medley, 134  U.S.  160 (1890)            ___                 ___ ______________            (discussing  extreme  penalty  of  solitary  confinement  and            finding  an  ex post  facto  violation  where a  new  statute            required a prisoner to serve four weeks in complete isolation            before being executed  at a  time unknown to  him); see  also                                                                _________            Ewell  v. Murray,  11 F.3d  482, 487  (4th Cir.  1993), cert.            _____     ______                                        _____            denied, 114 S. Ct. 2112 (1994) (finding that a new regulation            ______            punishing a prisoner's refusal  to submit to a DNA test  by a            loss of good-time credits and possible isolated placement for            up  to 15  days was not  an ex  post facto  violation but was            "reasonably within  the  administrative structure  of  prison            authority that attends every sentence").                        The   change   does  not   affect  the   length  of            Dominique's sentence or his parole options.  Cf. Morales, 115                                                         ___ _______            S.  Ct. at  1603  & n.6  (emphasizing  speculative effect  on            prisoner's actual  term of confinement, and  stating that the                                         -20-            ex post facto clause  does not "require that the  sentence be            carried out under the  identical legal regime that previously            prevailed"); Hamm, slip op.  at 28 (finding no ex  post facto                         ____            violation  where a  revised parole  policy which  postponed a            prisoner's initial  parole  hearing presented  a  speculative            risk  of extending his sentence).   Compare Vargas v. Pataki,                                                _______ ______    ______            899  F. Supp.  96,  99 (N.D.N.Y.  1995) (statutory  amendment            making an applicant for work  release no longer eligible  was            not an ex post facto  violation) with Knox v. Lanham, 895  F.                                             ____ ____    ______            Supp.   750,   758   (D.Md.   1995)   (change   in   security            classification and work release policies violated the ex post            facto clause where they  "directly impact[ed] upon  [lifers']            actual eligibility for parole").                        While the matter is perhaps close, we conclude that            plaintiff  has  not  satisfied   his  burden  of  showing  an            increased penalty for  his crime.  See Morales, 115 S. Ct. at                                               ___ _______            1602  n.3   (challenging  party  has   "ultimate  burden   of            establishing  that  the  measure  of  punishment  itself  has            changed").   The regulation  appears primarily to  affect the            methods  followed to treat certain sex offenders for a period            of  time,  e.g.,  with   regard  to  facility  placement  and                       ____            treatment  programs.   The  Ex  Post  Facto Clause  does  not            encourage  close scrutiny  by the  federal courts  of ongoing            procedural or  operational changes in  prisons to  coordinate                                         -21-            treatment, promote security,  and protect the public  safety.            See id. at 1603; Martel, 14 F.3d at 2.            ___ ___          ______            Affirmed.            _________                                         -22-
