

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 96-2039

                    RICHARD RILEY, ET AL.,

                   Plaintiffs, Appellants,

                              v.

                       LARRY E. DUBOIS,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. William G. Young, U.S. District Judge]                                                                

                                         

                            Before

                    Torruella, Chief Judge,                                                      
               Stahl and Lynch, Circuit Judges.                                                          

                                         

Christopher Masonoff,  Sr., John Tarrant  and Charles  Mitchell on                                                                           
brief pro se.
Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and                                
William D. Saltzman, Department of Correction, on brief for appellee.                           

                                         

                        October 14, 1997
                                         

     Per  Curiam.  In 1994, the Massachusetts Commissioner of                            

Correction  promulgated a  "sex  offender treatment"  program

("the  program"),  see 103  DOC    446,  designed  to provide                                  

treatment for  those inmates  "with a  present indication  or

prior  history  of  involvement  in  the  commission  of  sex

offenses,"  id.    446.07.    With  a  sequential  series  of                           

treatment phases, first at the medium-security level and then

in minimum-security and pre-release  settings, the program is

intended to  offer "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.  While                                                                  

the   program  is  voluntary,  any  inmate  who  declines  to

participate (or who  has not completed the  initial treatment

stages)  is barred from moving beyond  minimum security.  See                                                                         

Dominique v.  Weld, 73  F.3d 1156, 1161  n.8 (1st  Cir. 1996)                              

(discussing program).

     The plaintiffs here  are four inmates who  have declined

to  participate  in the  program,  allegedly out  of  fear of

retribution  from other  prisoners should  their sex-offender

status become known.  They  have accordingly been confined to

medium  security  with  a   consequent  loss  of  privileges.

Plaintiff Tarrant further  complains that he has  been denied

parole  as a result,  while plaintiff Masonoff  protests that

his  parole reserve  date has  been  rescinded.   All of  the

plaintiffs committed  their offenses before  the program  was

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introduced.   Three  of  them  were  allegedly  screened  and

"cleared"  under an earlier regime calling for the indefinite

civil  commitment of "sexually dangerous persons."  See Mass.                                                                   

G. L. c. 123A.  

     In this pro se action under 42 U.S.C.   1983, plaintiffs

insist that applying  the program to them is impermissible on

a variety of  constitutional and other grounds.   Declaratory

and   injunctive  relief   and   damages   are  sought;   the

Commissioner of Correction is the sole named defendant.  From

an  adverse award of summary judgment, plaintiffs now appeal.

We affirm.

     Extended   discussion  is   unnecessary.     Plaintiffs'

principal contention, which underlies  many of their  claims,

is that it is improper  to subject them to the program  after

they had  been cleared under  the c. 123A  regime.  In  their

view,  the program  is simply  a  "mirror image"--a  revamped

version--of the c. 123A system, which could not be applied to

them absent some  intervening sexual misconduct.   They argue

that   doing  so  violates  notions  of  due  process,  equal

protection,  ex post facto  law, res judicata  and collateral

estoppel.  We  disagree.  The two regimes  share nothing more

than a common purpose of  treating sex offenders.  Whereas c.

123A involves involuntary and indeterminate civil  commitment

based  upon a judicial  finding of sexual  dangerousness, the

program involves a voluntary treatment scheme that can affect

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a  prisoner's classification  level but  does  not alter  his

underlying criminal sentence.   That one has  previously been

determined not  to be a "sexually dangerous  person" under c.

123A thus does not preclude subjecting him to the program. 

     Applying  the program  to plaintiffs does  not otherwise

violate  due process.   Imposing limitations on  a prisoner's

access  to   minimum  security   entails  no   "atypical  and

significant hardship" under  Sandin v. Conner, 515  U.S. 472,                                                         

484  (1995).    See,  e.g.,  Dominique, 73  F.3d  at  1158-61                                                  

(finding prisoner's removal from work release and restriction

to medium security  to be permissible under Sandin).   Nor is                                                              

due process implicated  by the denial  of parole, see,  e.g.,                                                                        

Greenholtz v. Nebraska  Penal Inmates, 442 U.S.  1, 7 (1979),                                                 

or by  the rescission  of a parole  reserve date,  see, e.g.,                                                                        

Jago v. Van Curen, 454 U.S. 14 (1981) (per curiam); Lanier v.                                                                      

Massachusetts Parole Bd.,  396 Mass. 1018 (1986)  (rescript).                                    

Plaintiffs' equal  protection  claim is  also misplaced;  sex

offenders are not a  suspect class, see, e.g.,  Lustgarden v.                                                                      

Gunter, 966 F.2d  552, 555 (10th Cir. 1992),  and a treatment                  

program such as this is  rationally related to the legitimate

state interest in  protecting public safety, see,  e.g., Neal                                                                         

v. Shimoda, 905  F. Supp. 813, 819  (D. Haw. 1995); see  also                                                                         

Martel  v. Feidovich,  14 F.3d  1, 2-3  (1st Cir.  1994) (per                                

curiam).    Nor   does  the  program  constitute  a  bill  of

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attainder.  See, e.g., Schafer v. Moore, 46 F.3d 43, 45  (8th                                                   

Cir. 1995).

     As to whether  the program might  constitute an ex  post

facto violation  by resulting  in the  deferral or  denial of

parole (or of  a parole hearing), we need  express no general

view.1   At  least  one court  has  held,  albeit in  a  case                 1

predating  California Dep't  of Corrections  v. Morales,  514                                                                   

U.S.  499 (1995),  that conditioning  parole  on an  inmate's

participation in a sex offender treatment program can violate

the Ex Post Facto Clause.  See Parton v. Armontrout, 895 F.2d                                                               

1214, 1215-16  (8th Cir.  1990); cf. Knox  v. Lanham,  895 F.                                                                

Supp. 750, 756-58 (D. Md. 1995) (invalidating restrictions on

parole eligibility for  "lifers").  Contra Russell  v. Eaves,                                                                        

722 F. Supp. 558, 560  (E.D. Mo. 1989), appeal dismissed, 902                                                                    

F.2d 1574 (8th Cir. 1990).   Yet plaintiffs have presented no

direct  claim that this  is what  happened here;  indeed, the

interplay  between the  program  and  the  parole  system  is

unexplained on  the present  record.  Nor,  in the  course of

their  ex post facto discussion, have they referred to parole

in anything  more than  oblique fashion--either  below or  on

appeal.   Plaintiffs  bore the burden  of establishing  an ex

post facto violation.  See Morales, 514 U.S. at 510 n.6.   It                                              

                                                    

   1   Contrary  to  defendant's  suggestion,  our  Dominique               1                                                         
decision does  not appear  to address this  issue, much  less
"foreclose" it.   There is no  indication that any  complaint
was there  voiced regarding  the program's  effect on  parole
eligibility.

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suffices  here to conclude  that the minimal  facts they have

adduced and the perfunctory arguments they have advanced fall

short of doing so. 

     Plaintiffs'  remaining  claims   are  rejected  for  the

reasons  recited by  the  district  court  (or  because  they

require no separate comment). 

     Affirmed.                          

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