                                                           NOT PRECEDENTIAL


                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    _____________

                                         No. 10-3732
                                        _____________

                             RICHARD LAWRENCE WARNER,
                                      Appellant

                                               v.

        CATHERINE B. MCVEY, Chairman of the Pa. Board of Probation and Parole;
          STATE OF PA. BOARD OF PROBATION AND PAROLE, a Public Entity;
  PATRICIA LIGHTNER, District Director of Pa. Board of Probation and Parole, Erie District
   Office; JAMES WILLIAMS, Western Regional Director of the Pa. Board of Probation and
                                       Parole
                                 _______________

                       On Appeal from the United States District Court
                           for the Western District of Pennsylvania
                                District Court No. 1-08-cv-0005
                      District Judge: The Honorable Sean J. McLaughlin

                      Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                       May 10, 2011

                Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges

                                    (Filed: May 27, 2011)

                                   _____________________

                                          OPINION
                                   _____________________

SMITH, Circuit Judge.

       Richard Lawrence Warner brings this civil rights action pursuant to 42 U.S.C. § 1983.

He alleges that his right to procedural due process was violated when the Pennsylvania Board of

Probation and Parole designated him a “sex offender” and instructed him to attend sex offender

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treatment. The District Court granted summary judgment in defendants‟ favor. Warner appeals

in part. We will affirm.

        In August of 2005, Warner traveled to Iowa, posed as a physician, purported to perform a

medical examination upon an eighteen-year-old female, and digitally penetrated the victim‟s

vagina and fondled her breasts. He was arrested and charged with “sexual abuse in the third

degree,” a felony under Iowa law. State authorities eventually offered to drop the sexual abuse

charge if Warner pleaded guilty to the offense of “practicing medicine without a license,” also a

felony under Iowa law. He agreed. The state trial court accepted the plea and sentenced Warner

to, inter alia, three years‟ probation.

        Warner was a resident of Crawford County, Pennsylvania. Iowa officials therefore

transferred administration of his supervised release to the Pennsylvania Board of Parole.

Defendant Patricia Lightner, District Director of the Parole Board‟s District Office in Erie,

reviewed Warner‟s file and ordered him to undergo an evaluation for “sex offender therapy.”

Warner initially refused. He then submitted a formal complaint protesting the Board‟s order.

Lightner rejected the complaint. In an attempt to appeal this decision, Warner sent written

correspondence to defendant James Williams, requesting relief from the Board‟s directive.

Williams did not respond to Warner‟s request.

        Warner eventually complied with the Board order, submitted to a sex offender evaluation,

was designated a “sex offender” for purposes of his state supervision, and was instructed to

attend sex offender treatment sessions. His attendance, however, was sporadic, and Warner was

discharged from treatment in April of 2008 for refusal to cooperate. Nothing appears to have

come of his noncompliance, and he completed his probationary period without further incident.

        Warner filed this civil rights complaint in the Western District of Pennsylvania


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approximately two months before he was discharged from treatment. He alleged that his right to

procedural due process had been violated because he was not permitted a hearing to contest his

designation as a sex offender. After a period of discovery, the parties filed cross-motions for

summary judgment. The Magistrate Judge recommended that the District Court grant

defendants‟ motion and deny the motion filed by Warner. The District Court adopted the

Magistrate Judge‟s recommendation in full. Warner timely appealed. The District Court had

jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction to review the final

judgment, 28 U.S.C. § 1291, and we consider the question whether summary judgment was

appropriate de novo, Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011).

       Warner‟s appeal is narrow in scope. He limits his challenge to the District Court‟s

determination that defendants Lightner and Williams were entitled to qualified immunity. The

District Court held that at the time Warner was classified as a sex offender, his right to a hearing

was not clearly established. Warner disagrees, and argues that in Renchenski v. Williams, 622

F.3d 315 (3d Cir. 2010), this Court held that an individual is entitled to procedural due process

before he or she is stamped with “sex offender” status. Defendants contend that Renchenski is

not relevant because that case was decided recently and that the right therefore was not clearly

established when the designation was applied to Warner.

       We agree with the defendants. In Renchenski, we held that “only after a prisoner has

been afforded due process may sex offender conditions be imposed on an inmate who has not

been convicted of a sexual offense.” Renchenski, 622 F.3d at 326. Even if we assume that our

reasoning recognizes a clearly established right for a probationer such as Warner, this right was

not clearly established when Warner‟s designation was applied. See Torisky v. Schweiker, 446

F.3d 438, 442 (3d Cir. 2006) (stating that the right in question must have been “„clearly


                                                 3
established at the time of the alleged violation‟” (quoting Wilson v. Layne, 526 U.S. 603, 609

(1999))). Lightner and Williams are therefore entitled to immunity from suit. Accordingly, we

will affirm the order of the District Court granting summary judgment in their favor.




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