                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            AUG 29 2003
                                    TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 DALE WAYNE GROSS,

          Plaintiff - Appellant,

 v.                                                       No. 03-1122
                                                      (D.C. No. 02-M-445)
 COLORADO DEPARTMENT OF                                  (D. Colorado)
 CORRECTIONS; DR. L. DENNIS
 KLEINSASSER; MERLE DORMAN;
 TERESA KRALL,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **


      Plaintiff-Appellant Dale Wayne Gross, a state inmate appearing pro se,

appeals from the district court’s dismissal of his civil rights action against the

Colorado Department of Corrections (“DOC”) and certain of its employees. His


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
complaint alleged deprivation of various constitutional rights springing from his

internal prison classification as a sex offender even though he was not found

guilty of a sex offense. On cross-motions for summary judgment, the district

court granted summary judgment in favor of the Defendants. Our jurisdiction

arises under 28 U.S.C. § 1291 and we affirm.

      Mr. Gross is in the custody of the DOC to serve a 12-year term of

imprisonment after being convicted by a jury of first degree trespass, first degree

burglary, retaliation against a victim or witness, second degree assault, third

degree assault, and domestic violence (“the convicted offenses”). The DOC

reviewed Mr. Gross’s file and concluded that although he was not convicted of

sexual assault, he nonetheless satisfied the criteria for an administrative review of

his sex offender classification. Mr. Gross was served with notice of his right to

an administrative review, which he requested. This notice informed Mr. Gross of

the facts in his file supporting a review and explained that he had the right to call

witnesses and to present documentary evidence on his behalf. Mr. Gross received

notice of the hearing date and appeared at the hearing. The hearing panel, in a

written statement, informed Mr. Gross that he would be classified as an S-4 sex

offender for having behaved in a sexually violent and abusive manner based on a

presentence report detailing conduct surrounding the convicted offenses.

      Mr. Gross filed a complaint pursuant to 42 U.S.C. § 1983 alleging


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deprivation of various rights from the classification. Specifically, he alleged: (1)

that the inadequate administrative procedures resulting in his classification as a

sex offender denied him due process; (2) that requiring him to participate in the

sex offender treatment program (“SOTP”) to be eligible for additional earned time

credits denied him the equal protection of the law; and (3) that requiring him to

admit that he is a sex offender as a precondition to entry into the SOTP violates

his privilege against self-incrimination.

      The district court granted summary judgment for Defendants, concluding

that Mr. Gross failed to show any factual support for his claims and concluding

that: (1) the DOC’s administrative procedure complied with the requirements of

Chambers v. Colo. Dep’t of Corrs., 205 F.3d 1237 (10th Cir. 2000); (2) there is

no equal protection violation by classifying sex offenders differently from other

groups of inmates because there are rational reasons for the classification and

difference in programs; (3) any claim of self incrimination is defeated by the

Supreme Court’s decision in McKune v. Lile, 536 U.S. 24 (2002); and (4)

Colorado’s provision for earned time credits does not create a constitutionally

protected liberty or property interest.

      We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court. Kendrick v. Penske

Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). Summary judgment


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“shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “When

reviewing cross-motions for summary judgment, ‘our review of the record

requires that we construe all inferences in favor of the party against whom the

motion under consideration is made . . . .’” Pirkheim v. First Unum Life Ins., 229

F.3d 1008, 1010 (10th Cir. 2000) (quoting Andersen v. Chrysler Corp., 99 F.3d

846, 856 (7th Cir. 1996)).

      On appeal, Mr. Gross reargues the claims from his complaint and also adds

the claim that the pattern of DOC conduct alleged by his complaint amounts to

infliction of cruel and usual punishment in violation of the Eighth Amendment.

Aplt. Br. at 2, 18. We decline to consider Mr. Gross’s added Eighth Amendment

claim because it was raised for the first time on appeal. See McDonald v.

Kinder-Morgan Inc., 287 F.3d 992, 999 (10th Cir. 2002). After conducting the

required de novo review and examining the parties’ submissions, including Mr.

Gross’s brief, the record, and the relevant law, we are convinced that the district

court’s disposition was correct. For substantially the reasons relied on by the

district court, we conclude that Defendants were entitled to summary judgment.

      Regarding Mr. Gross’s due process claim, we held in Chambers that “some


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process” must be afforded an inmate before he can be classified as a sex offender.

205 F.3d at 1243. Although we did not explicitly discuss how much process was

required, we relied on the Ninth Circuit’s analysis in Neal v. Shimoda, 131 F.3d

818, 831 (9th Cir. 1997), which itself relied on the standards discussed in Wolff

v. McDonnell, 418 U.S. 539 (1974). See also Superintendent v. Hill, 472 U.S.

445, 454 (1985) (under Wolff standards, the prisoner must receive advance

written notice, an opportunity to call witnesses and present documentary evidence

in his defense, and a written statement by the factfinder of the evidence relied on

and the reasons for the action taken). Here, the DOC provided Mr. Gross process

that satisfies the Wolff standard. R. Doc. 15 Exs. 1-4. Without deciding

precisely what process must be afforded in these circumstances, we agree with the

district court that Mr. Gross received sufficient process.

      Regarding Mr. Gross’s equal protection argument relating to earned time

credits, we also recognized in Chambers that earned time credits are a matter of

discretion under Colorado law; thus, there is no basis upon which the earned time

credits statute may be interpreted to create an entitlement or liberty interest for

purposes of a due process claim. 205 F.3d at 1239. Because there is no

constitutionally protected right to earned time credits, Mr. Gross’s equal

protection claim must fail; absent deprivation of a constitutionally protected right,

he presents no cognizable claim under § 1983. See West v. Atkins, 487 U.S. 42,


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48 (1988).

      Even were we to reach the merits of the equal protection claim, we agree

with the district court that the DOC classification is not subject to heightened

review and would easily pass muster under rational basis review. See Aplee. Br.

at 13-15. Finally, we also agree with the district court that the Supreme Court’s

reasoning in McKune renders Mr. Gross’ self-incrimination claim meritless.

      Accordingly, we AFFIRM the district court’s grant of summary judgment to

defendants. We remind Mr. Gross that he is obligated to make partial payments

of the filing fee until the entire fee has been paid.

                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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