                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      February 11, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JOSE A. DIAZ,

             Plaintiff - Appellant,

v.                                                        No. 14-1106
                                             (D.C. No. 1:13-CV-01098-WJM-MJW)
JILL LAMPELA; BRANDON                                      (D. Colo.)
SHAFFER,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before HARTZ, McKAY, and McHUGH, Circuit Judges.


      Plaintiff Jose A. Diaz is a Colorado sex offender sentenced to a term of eight

years to life under the indeterminate sentencing scheme for sex offenses set out in the

Colorado Sex Offender Lifetime Supervision Act of 1968 (SOLSA), Colo. Rev. Stat.

§§ 18-1.3-1001 to 1012. After he was denied parole at the minimum eight-year mark

and his application for re-entry into a sex-offender treatment and management


*
      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 submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
program (SOTMP) was rejected, Mr. Diaz brought this official-capacity civil rights

action under 42 U.S.C. § 1983 for equitable relief against the Chairman of the Parole

Board (currently Brandon Shaffer) and the Chief of Behavioral Health for the

Colorado Department of Corrections (currently Jill Lampela). The district court

granted defendants’ motion to dismiss and this appeal followed. On de novo review,

see Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010), we affirm.

                                 I. BACKGROUND

      We accept the following allegations of fact—as opposed to bare conclusions of

law—as true for purposes of our review. See Bixler v. Foster, 596 F.3d 751, 756

(10th Cir. 2010). In 2002, Mr. Diaz pleaded guilty to a class IV felony sex offense

and received the indeterminate sentence noted above.1 Upon his incarceration he

completed the first phase of the SOTMP, but was terminated (i.e., given a “time out”

in order to “help understand his issues”) from the second phase in 2010 for behavior

not specified in the complaint. R. Vol. 1 at 11 par. 22.

      In January 2012, Mr. Diaz obtained an independent psychosexual evaluation

from a clinical psychologist, who diagnosed him as a pedophiliac and stated that he

requires treatment for the condition. The psychologist recommended the Colorado


1
       Under the SOLSA scheme, sex offenders receive an indeterminate sentence
with a minimum term of years (which is tied to the presumptive sentencing range for
the felony level of the offense) and a maximum term of life. See Vensor v. People,
151 P.3d 1274, 1276 (Colo. 2007) (discussing Colo. Rev. Stat. § 18-1.3-1004(1)(a)).
After completion of the minimum term, implementation of the remainder is left to the
discretion of the parole board. See id. (discussing Colo. Rev. Stat. § 18-1.3-1006(1)).


                                         -2-
Institute for Mental Health in Pueblo, Colorado, because the Colorado Department of

Corrections (CDOC) lacked phalometric assessment facilities. Mr. Diaz relied on

this evaluation to request readmission to the SOTMP to improve, manage, or control

his condition. CDOC officials sent him an application, which he completed and

returned in August 2012. After a month without a response, he filed a grievance,

requesting readmission to the SOTMP as well as treatment at the Institute in Pueblo.

The grievance alleged that the refusal of treatment, and continued incarceration

without treatment based on the status of being a pedophile, violated his rights under

the Eighth Amendment. The grievance was denied on the grounds that he had not

used the correct application form for readmission to the SOTMP and had otherwise

not proved his allegations.

      In the meantime, Mr. Diaz appeared before the parole board, which deferred

action on parole for risk-related reasons notwithstanding the fact that it rated him

“Very Low” on a risk-assessment scale. The two risk categories the parole board

relied on were “Severity/Circumstances of offense” and “Prior criminal history.”

Mr. Diaz alleges that denying parole on these grounds is impermissible as added

punishment for the underlying offense and as punishment for his mental

condition/status. He also alleges that such grounds are outside the criteria the parole

board may properly consider under state law governing offenders sentenced under

SOLSA.




                                          -3-
      The complaint asserts five claims. Two are directed at the CDOC through

defendant Lampela: (1) failure to provide treatment for his pedophilia, in violation

of Eighth Amendment strictures regarding medical care of inmates; and

(2) imprisonment, without adequate treatment, for the condition or status of being a

pedophile predisposed to commit sex offenses, in violation of the Eighth Amendment

prohibition on cruel and unusual punishment. The remaining three claims are

directed at the parole board through defendant Shaffer: (1) promulgation and

application of policies that inflict added punishment on sex offenders, including

Mr. Diaz, without a judicial trial, in violation of the Bill of Attainder Clause, U.S.

Const. art. I, § 10, cl. 1; (2) imprisonment, through denial of parole, for the condition

or status of being a sex-offending pedophile predisposed to commit sex offenses, in

violation of the Eighth Amendment; and (3) denial of parole under the wrong

standards or criteria prescribed by state law, in violation of the Due Process Clause of

the Fourteenth Amendment. For relief, Mr. Diaz sought a declaration that CDOC and

parole board policy violated his constitutional rights; an order requiring his

readmission to the SOTMP and specialized treatment for his pedophilia; and an order

directing the parole board to apply the proper criteria, excluding punishment as a

consideration, at a parole hearing to be scheduled forthwith.2


2
        While Mr. Diaz may proceed under 42 U.S.C. § 1983 in challenging parole
procedures, to the extent he “challenge[s] a constitutional defect in an individual
parole hearing, where the remedy lies in providing a new parole hearing, [he] must
file a habeas petition.” Herrera v. Harkins, 949 F.2d 1096, 1097 (10th Cir. 1991).
                                                                             (continued)
                                         -4-
                               II. LEGAL ANALYSIS

A. Eighth Amendment Claim against CDOC for Inadequate Medical Care

      The Eighth Amendment prohibition on cruel and unusual punishment applies

to officials’ “deliberate indifference to serious medical needs of prisoners.” Estelle v.

Gamble, 429 U.S. 97, 104 (1976). We recently summarized the two-prong

framework for analyzing deliberate-indifference claims in Al-Turki v. Robinson,

762 F.3d 1188 (10th Cir. 2014):

      A claim of deliberate indifference includes both an objective and
      subjective component. The objective prong of the deliberate
      indifference test examines whether the prisoner’s medical condition was
      sufficiently serious to be cognizable under the Cruel and Unusual
      Punishment Clause. The subjective prong examines the state of mind of
      the defendant, asking whether the official knew of and disregarded an
      excessive risk to inmate health or safety.

Id. at 1192 (brackets, citations, and internal quotation marks omitted).

      The district court rejected Mr. Diaz’s deliberate-indifference claim under the

objective prong, holding that his pedophilia did not present a serious medical need.

“A medical need is considered sufficiently serious to satisfy the objective prong if the

condition has been diagnosed by a physician as mandating treatment or is so obvious

that even a lay person would easily recognize the necessity for a doctor’s attention.”

Id. at 1192-93 (internal quotation marks omitted). The district court concluded that

“although [Mr. Diaz] has been diagnosed as having the mental condition of


His request for an order requiring a new parole hearing forthwith is thus beyond the
scope of this civil-rights action. See id. at 1098.


                                          -5-
pedophilia, treatment for his pedophilia has not been mandated,” citing Mr. Diaz’s

allegation that the clinical psychologist had only “recommend[ed]” treatment at the

Colorado Institute for Mental Health in Pueblo. R. Vol. 1 at 147. But even though

Mr. Diaz alleged that that particular treatment had only been recommended, he also

alleged that the psychologist indicated more generally that his condition “requires

treatment.” Id. at 11.

      We nevertheless agree that the deliberate-indifference claim fails on the

objective prong. Mr. Diaz alleged that his readmission to the SOTMP was denied

because he used the wrong application, not because he was irrevocably denied access

to the program. His claim is properly analyzed as a delay in treatment. To state such

a claim, he must allege that the delay has caused or will cause “substantial harm,”

such as “lifelong handicap, permanent loss, or considerable pain.” Al-Turki,

762 F.3d at 1193 (internal quotation marks omitted); see also Riddle v. Mondragon,

83 F.3d 1197, 1202 (10th Cir. 1996) (noting psychiatric treatment may be

constitutionally mandated if a serious condition “is curable or may be substantially

alleviated” and “the potential for harm to the prisoner by reason of delay or the denial

of care would be substantial” (internal quotation marks omitted)). With respect to

medical consequences of the lack of treatment, the complaint alleges only that it has

been a “detriment” to his “well being.” R. Vol. 1 at 16. Such a vague and

conclusory allegation does not suffice to state an Eighth Amendment claim. See

Riddle, 83 F.3d at 1204 (holding that sex offender’s “[v]ague allegations of eroded


                                         -6-
self-esteem, apathy, fear and feelings of differentness . . . do not amount to the basis

for a [deliberate indifference] claim” regarding lack of treatment for sexual disorder).

Mr. Diaz also alleges his condition predisposes him to commit sex offenses, but that

is a potential harm to others, not to himself. Although this predisposition may also

impact his parole prospects, we address that nonmedical concern in the next section

below.

      We also think dismissal of this claim is proper under the subjective prong.

The complaint indicates that Mr. Diaz’s own conduct necessitated his removal from

the SOTMP and that his readmission to the program has been impeded by his failure

to properly apply. Nothing in the complaint suggests that his removal from the

program was for any reason other than that his conduct indicated a suspension of

treatment for a period of self-examination was warranted. Mr. Diaz does not allege

that this judgment about the appropriateness of ongoing treatment in light of his

conduct was incorrect or negligent, much less that it rose to the level of deliberate

indifference. See generally Estelle, 429 U.S. at 107 (distinguishing disputed

treatment decisions and even malpractice from deliberate indifference required for

Eighth Amendment claim). As for readmission to the program, he does not allege

that he was incorrectly rejected for using the wrong application, let alone provide




                                          -7-
facts plausibly suggesting that an unjustified denial of his application constituted a

subjective deliberate indifference to his medical needs.3

B. Eighth Amendment Claim for Lack of Treatment for Condition Underlying
   Continued Incarceration under SOLSA

      Mr. Diaz claims that CDOC’s failure to treat his pedophilia violated his Eighth

Amendment rights for another reason as well. His argument runs as follows: the

focus of his prolonged incarceration under SOLSA beyond the minimum term of his

indeterminate sentence is on his propensity to re-offend arising from his pedophilia;

consequently, the failure to treat this condition while continuing his confinement is

cruel and unusual punishment.

      This court has previously rejected (albeit in an unpublished decision) the tacit

legal premise of this argument—that is, that when a psychological condition could

impact a prisoner’s parole, treatment is mandated by the Eighth Amendment even if

the condition would not otherwise require treatment as a serious medical need. See

Hunt v. Colo. Dep’t of Corr., 194 F. App’x 492, 495 (10th Cir. 2006). But we need

not rely on that analysis. As we have already noted, the SOTMP has been made

available to Mr. Diaz; it appears from the complaint that his current nonparticipation

in the program is attributable to his own conduct.



3
       He does allege that he used an application provided by CDOC staff, but there
is no allegation that any mistake in this regard was an intentional effort to impede his
readmission into the SOTMP. Nor does he allege that he has since properly applied
for readmission and still been rejected.


                                          -8-
C. Eighth Amendment Claim for Punishment Based on Status or Propensity

      In a related claim brought against the parole board, Mr. Diaz contends that his

continued confinement following the denial of parole constitutes cruel and unusual

punishment for his mere status as a pedophile with a propensity to commit future sex

offenses. It is true that punitive incarceration solely on the basis of a person’s status

or propensities violates the Eighth Amendment. See United States v. Munro, 394

F.3d 865, 872 (10th Cir. 2005) (discussing Robinson v. California, 370 U.S. 660

(1962)). But we are not addressing a sentence imposed on such grounds; Mr. Diaz’s

indeterminate sentence was imposed for his commission of a criminal offense. We

are addressing the discretionary denial of parole, which merely continues punishment

already imposed for the underlying offense and does not itself implicate the Eighth

Amendment. See Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir. 1992).

D. Bill of Attainder Claim

      The constitution prohibits states from passing “Bill[s] of Attainder.” U.S.

Const. art. I, § 10, cl. 1. A Bill of Attainder “legislatively determines guilt and

inflicts punishment upon an identifiable individual without provision of the

protections of a judicial trial.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468

(1977). The Bill of Attainder Clause “prohibit[s] legislatures from singling out

disfavored persons and meting out summary punishment for past conduct.” Landgraf

v. USI Film Prods., 511 U.S. 244, 266 (1994). Mr. Diaz claims that the parole board

violated this constitutional prohibition by denying him parole for reasons, regarding


                                           -9-
the seriousness of his underlying offense, that SOLSA excludes from the parole

board’s consideration.

      This claim fails for at least two reasons. First, a parole determination is an

executive adjudication, not a legislative enactment. Indeed, Mr. Diaz’s objection to

the parole board’s decision is that it was in contravention of the controlling

legislative enactment (SOLSA).

       Second, Mr. Diaz’s incarceration following the discretionary denial of parole

is not a new punishment meted out by the parole board. It simply continues the

punishment previously imposed by the court that sentenced him for the underlying

offense. See Mahn v. Gunter, 978 F.2d 599, 602 n.7 (10th Cir. 1992) (discretionary

denial of parole in Colorado does not impose additional punishment, because it “does

not change the length of a prisoner’s sentence”); cf. Malek v. Haun, 26 F.3d 1013,

1016 (10th Cir. 1994) (when parole is discretionary, “the denial of parole . . .

[cannot] constitute cruel and unusual punishment, double jeopardy, or ex post facto

application of the law”).

E. Due-Process Claim

      Mr. Diaz contends that the parole board’s consideration of a sex offender’s

underlying offense in connection with parole is prohibited by SOLSA and that the

board violated (and will continue to violate) his due-process rights by doing so. But

a due-process claim could arise here only if Mr. Diaz had a cognizable liberty interest

in securing parole. He does not.


                                         - 10 -
      “Whatever liberty interest exists is, of course, a state interest created by [state]

law. There is no right under the Federal Constitution to be conditionally released

before the expiration of a valid sentence, and the States are under no duty to offer

parole to their prisoners.” Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011)

(per curiam). The question, then, is whether state law affords the prisoner a

legitimate claim of entitlement to parole or instead has left the determination of

parole to the discretion of the parole board. See Straley v. Utah Bd. of Pardons,

582 F.3d 1208, 1212-14 (10th Cir. 2009). SOLSA leaves it to the parole board “to

determine whether the sex offender may be released on parole,” Colo. Rev. Stat.

§ 18-1.3-1006(1)(a) (emphasis added), and the Colorado Supreme Court has

recognized that this provision “assigns discretion to the parole board to release [an

offender],” Vensor, 151 P.3d at 1276; see also Lustgarden, 966 F.2d at 553 (state

court’s interpretation of parole statute as discretionary is “controlling in federal

court”). SOLSA does not create a liberty interest in parole of sex offenders.4

      Mr. Diaz has argued at length that SOLSA has a rehabilitative purpose and that

the parole board contravenes this purpose in violation of due process by considering,

in allegedly punitive fashion, a sex offender’s underlying offense in deciding whether

to grant parole. Defendants have argued at length to the contrary. But as we have

already concluded that due process is not implicated in the denial of parole under
4
       While its unpublished decision is not binding on us, we note that another panel
of this court reached the same conclusion for much the same reasons in Jago v. Ortiz,
245 F. App’x 794, 796-97 (10th Cir. 2007).


                                          - 11 -
SOLSA, we need not address the point. Without that asserted constitutional

dimension, the dispute over the parole board’s understanding and implementation of

SOLSA is merely a matter of state law. “An action under § 1983 . . . cannot be

maintained on the basis of alleged violations of state law.” Cardoso v. Calbone,

490 F.3d 1194, 1197 (10th Cir. 2007) (internal quotation marks omitted).

      The judgment of the district court is affirmed. Mr. Diaz’s motion to certify

questions of state law is denied.


                                                 Entered for the Court


                                                 Harris L Hartz
                                                 Circuit Judge




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