
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         -2-            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                                         -3-            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                                         -4-            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.                                         -5-            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.                 _________                                         -6-
