

                UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT
                                         

No. 95-1466

                       JAMES DOMINIQUE,

                    Plaintiff, Appellant,

                              v.

                    WILLIAM WELD, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Nathaniel M. Gorton, U.S. District Judge]                                                                 
                                         

                            Before

                    Boudin,* Circuit Judge,                                                      

               Campbell, Senior Circuit Judge,                                                         

                  and Stahl, Circuit Judge.                                                      
                                         

Wendy B. Golenbock, for appellant.                              
Stephen  G. Dietrick,  Deputy  General Counsel,  with  whom  Nancy                                                          
Ankers  White,  Special Assistant  Attorney  General,  and Herbert  C.                                                            
Hanson,  Senior  Litigation   Attorney,  Massachusetts  Department  of                                              
Correction, were on brief for appellees.

                                         

                       January 18, 1996
                                         

                                            

*Judge  Boudin  heard  oral  argument  in  this  matter  but  has  not
participated  in the issuance of  the panel's opinion.   The remaining
two  panelists therefore  issue  this opinion  pursuant  to 28  U.S.C.
46(d).

          CAMPBELL,  Senior Circuit  Judge.   Plaintiff James                                                      

Dominique, a  sentenced  inmate in  the Massachusetts  prison

system, was returned to confinement after he had been allowed

to participate  in a  work  release program  for almost  four

years.  He appeals from the district court's refusal to order

reinstatement of his work release status and its dismissal of

his related claims,  brought under 42 U.S.C.   1983, alleging

violations  of  the  Due  Process Clause  of  the  Fourteenth

Amendment  and the Ex Post  Facto Clause.   We affirm, albeit

for  different  reasons  in  light of  recent  Supreme  Court

decisions.

I. Facts            I. Facts

          Plaintiff  was  imprisoned  in  1983  for  multiple

crimes including incest and is scheduled for release  in June

2000.   In  August 1987,  he was  transferred to  the minimum

security Massachusetts Correctional Institution  at Lancaster

("MCI-Lancaster").   In May 1988, the  Superintendent of MCI-

Lancaster  permitted him  to  renew his  driver's license  in

connection with work he was then doing on state vehicles.  In

August 1990,  plaintiff was  approved for the  Community Work

Release   Program.     He  became   a  mechanic   for  R.M.J.

Transportation, Inc., and the following year was permitted to

open his own vehicle repair business.  

                             -2-

          Plaintiff  remained  in good  standing in  the work

release program.  However,  in the summer of 1993,  access to

his license and the keys to his personal vehicle was revoked,

causing him to  lose his job  at R.M.J. Transportation.    In

April  of 1994, he was removed from the work release program.

On May 5, 1994, because he was deemed a security risk, he was

transferred from MCI-Lancaster to a medium security facility,

MCI-Shirley.  No hearing occurred before the latter transfer,

but reclassification hearings were subsequently held  on June

13 and September 23,  1994.  Each time, a  committee majority

recommended   plaintiff's  transfer   to  a   lower  security

facility.  The  Commissioner overruled these recommendations.

Plaintiff remains at MCI-Shirley.

          Defendants1  say  that  they   revoked  plaintiff's

privileges  because he  remains  in denial  of his  crime (in

particular,  the  incest),  and  because he  had  too  little

accountability at  his repair business.   They justify taking

away  plaintiff's license  because of revised  DOC guidelines

providing that only inmates within six  months of an approved

release  date are eligible to  use their licenses.   They add

that his  crime makes him  a risk to  the public safety,  and

that,  having been  denied parole on  three occasions,  he is

                                                    

1.     The   defendants   are  William   Weld,   Governor  of
Massachusetts,  Thomas  Rapone,   then-Commissioner  of   the
Department of Public Safety, Larry E. Dubois, Commissioner of
the Massachusetts Department of Correction, and Luis Spencer,
Superintendent of MCI-Lancaster.

                             -3-

more likely to attempt to escape.  Plaintiff responds that he

has  never violated  any condition  of the  Community Release

Agreement  ("Agreement").2    He  claims  that  his   removal

resulted from media and public uproar following an incident -

-  wholly  unrelated to  him  --  in which  an  MCI-Lancaster

escapee shot a police  officer.  Plaintiff was never  given a

written  statement   of  reasons   for  his  removal.     New

regulations concerning the  treatment of  sex offenders  make

plaintiff presently ineligible for work release.

          In  his  district court  action,  plaintiff alleged

that these  changes in  his status violated  the Due  Process

Clause  of the  Fourteenth Amendment  and the  Ex Post  Facto

Clause.  He requested  a preliminary injunction ordering that

he  be reinstated to the work release program.  In dismissing

the due process claim, the district court held that plaintiff

had shown  neither  a constitutionally-derived  nor a  state-

                                                    

2.    The  Community  Release Agreement  for  Lancaster  pre-
release programs  requires a participating  inmate to signify
his understanding  that "[i]n accepting and  participating in
community  release  programs  including  all  furloughs, work
release,   and   education   release    opportunities,   [he]
voluntarily accept[s]  the following conditions . . . ."  The
participant cannot leave the state, cannot leave his assigned
location during breaks  unless authorized to  do so, must  be
aware  of specific  requirements  and arrangements  for  each
specific  release  activity,  must  cooperate  with requested
medical examinations  or searches of lockers  or outside work
areas, and must conduct himself generally "in accordance with
the laws of the state and community."
     The Agreement states that "[a]ny violation  of community
release  policies will  result in  [the participant's]  being
subject to disciplinary action or prosecution and will not be
considered in the future community participation requests."

                             -4-

created  liberty interest.    This being  so, the  Fourteenth

Amendment  did not  require the  state to  provide procedures

prior to removing him  from the program and returning  him to

prison.  The district court also found no violation of the Ex

Post  Facto  Clause,  because the  new  regulations governing

participation in  work release  were not punitive  but rather

related to the  public safety.   The court denied  injunctive

relief, as plaintiff had not shown a likelihood of success on

the merits.3    

II. Standard of Review            II. Standard of Review

     The  district  court  dismissed  plaintiff's  claims  in

response  to  defendants'  motion   in  the  alternative  for

dismissal under Fed.  R. Civ. P. 12(b)(6) or Fed.  R. Civ. P.

56.    The  district  court recited  the  standard  governing

12(b)(6)  motions  to dismiss,  but  it  relied  in  part  on

materials outside  of the pleadings  (including the Agreement

and  affidavits)  to determine  whether  plaintiff enjoyed  a

protected liberty  interest entitling  him to procedural  due

process before  removal from  the work release  program.   We

                                                    

3.   The  district court dismissed plaintiff's  pendant state
law   claims  without   prejudice,  pursuant  to   28  U.S.C.
 1367(c)(3).  While  appellant's   counsel  claimed  at  oral
argument  a lack  of substantive  as well  as procedural  due
process,  the former theory is not briefed nor does it appear
to have  been developed below.   Accordingly, it  was waived.
See Grella  v. Salem Five Cent Sav. Bank, 42 F.3d 26, 36 (1st                                                    
Cir. 1994).     

                             -5-

therefore  treat the motion as one for summary judgment.  See                                                                         

Smith v.  Massachusetts Dep't  of Correction, 936  F.2d 1390,                                                        

1394 (1st Cir. 1991); Fed. R.  Civ. P. 12(b)(6).  We review a

grant of summary judgment  de novo, viewing the facts  in the                                              

light most favorable  to the nonmovant, plaintiff.   Coyne v.                                                                      

Taber Partners I, 53 F.3d 454, 457 (1st Cir. 1995).                            

III. Due Process Clause of the Fourteenth Amendment            III. Due Process Clause of the Fourteenth Amendment

     A. The District Court Decision                 A. The District Court Decision

          The  Fourteenth  Amendment provides  that  no state

shall  "deprive  any person  of  life,  liberty, or  property

without due  process of law."   U.S. Const. amend.  XIV.  The

focal  issue  here is  whether  plaintiff was  deprived  of a

protected liberty interest.   Plaintiff has not asserted that

he  possessed  a  liberty  interest created  by  the  federal

Constitution   itself.4    Rather,   he  has  contended  that

                                                    

4.    The  Supreme  Court  has recognized  that,  in  certain
circumstances,  the Constitution  itself may  give rise  to a
liberty interest.  See, e.g.,  Washington v. Harper, 494 U.S.                                                               
210,   221-222   (1990)   (involuntary    administration   of
antipsychotic  drugs); Vitek  v. Jones,  445 U.S.  480 (1980)                                                  
(involuntary  commitment to a  mental hospital); Morrissey v.                                                                      
Brewer,  408   U.S.  471   (1972)  (revocation   of  parole).                  
Generally,  prisoners   under  confinement  do   not  have  a
constitutionally-derived liberty interest.  See, e.g., Hewitt                                                                         
v. Helms,  459 U.S.  460  (1983) (state  action taken  within                    
sentence  imposed);  Meachum v.  Fano,  427  U.S. 215  (1976)                                                 
(transfer  to higher  security prison);  Bowser v.  Vose, 968                                                                    
F.2d 105, 106 (1st Cir. 1992) (denial of furlough); Lanier v.                                                                      
Fair, 876  F.2d 243, 246  (1989) (removal from  halfway house                
program);  Brennan v.  Cunningham, 813  F.2d  1, 6  (1st Cir.                                             
1987) (same).  

                             -6-

Massachusetts  state  regulations and  the  Community Release

Agreement established a state-created liberty  interest which

defendants could not take away without providing due process.

The  regulations and Agreement, he argued, cabined officials'

discretion and  led him legitimately  to expect to  remain in

the work release program  so long as he did not  violate some

express condition.   Dominique relied on cases holding that a

liberty  interest  may be  created  by  "explicitly mandatory

language" within  state regulations.   See Kentucky  Dep't of                                                                         

Corrections v. Thompson, 490 U.S. 454,  463 (1989); Hewitt v.                                                                      

Helms, 459  U.S.  460,  471-472  (1983);  see  also  Olim  v.                                                                     

Wakinekona,  461   U.S.  238,  249   (1983)  ("particularized                      

standards or criteria [to] guide the State's decisionmakers")

(citation  omitted).   Dominique  pointed  to  cases of  this

circuit holding that  a signed  agreement outlining  criteria

for  participation  in  and  removal from  a  prison  release

program  may  evidence  a  state-created   liberty  interest.

Lanier  v. Fair,  876 F.2d  243 (1st  Cir. 1989);  Brennan v.                                                                      

Cunningham, 813 F.2d 1 (1st Cir. 1987).                      

                                                    

     The    Tenth    Circuit     recently    recognized     a
constitutionally-derived liberty interest in a case involving
a  state pre-parole  conditional  supervision program.    See                                                                         
Harper  v. Young, 64 F.3d  563, 566 (10th  Cir. 1995) (citing                            
Edwards v. Lockhart,  908 F.2d 299,  302-303 (8th Cir.  1990)                               
for the  proposition that parole  and work release  should be
viewed on a continuum, with the program at issue more closely
resembling  parole because  it allowed  a convict  "to exist,
albeit conditionally, in society on a full-time basis").

                             -7-

          The district court  analyzed the state  regulations

and  Agreement under  Thompson,  Hewitt, Olim  criteria.   It                                                         

concluded that the language relating to Dominique's  interest

in participating  and remaining  in the work  release program

was  too provisional  to create  a constitutionally-protected

liberty interest.  Neither  the regulations nor the Agreement

required officials to grant  work release status initially or

indefinitely.      Despite   certain   similarities   between

plaintiff's  Agreement and agreements  in Brennan and Lanier,                                                                        

the  district   court  determined  that,   under  our  latest

precedent,   language  of  a  more  mandatory  character  was

essential.5 

          Plaintiff appealed.   Within  a week of  filing his

appellate  brief, the  Supreme  Court issued  its opinion  in

Sandin  v.  Conner,   infra,  modifying   the  standard   for                                       

determining   the  existence   of  a   state-created  liberty

interest.  

                                                    

5.   See Bowser v. Vose, 968 F.2d 105, 108 (1st Cir. 1992) (a                                   
regulation providing that "[a]  resident who satisfies one of
the  [six enumerated]  purposes . . . shall  be  eligible for
furlough" was insufficient to  create a liberty interest, for
"[a]bsent  from  the   regulations  . . . is  any   mandatory
language directing  that a  furlough must  be granted  to any                                                     
inmate who satisfies the  eligibility requirements"); Rodi v.                                                                      
Ventetuolo,  941  F.2d  22,   25  (1st  Cir.  1991)  (clearly                      
mandatory  regulatory  language  placed definite  substantive
limits on officials' actions,  as state conceded); Smith, 936                                                                    
F.2d at 1397 (court reserved judgment  on the inmate contract
because of a misconduct-based violation, but noted a  lack of
mandatory language  limiting discretion in  both the contract
and the regulations).

                             -8-

     B. Sandin v. Conner                    Sandin v. Conner                                    

          In  Sandin v. Conner, 115 S. Ct. 2293 (1995) (5-4),                                          

the Court criticized its  former precedent under which courts

examined the  language in  state statutes and  regulations to

determine  whether  a liberty  interest  was  created.   This

doctrine "encouraged prisoners to  comb regulations in search

of  mandatory  language  on  which to  base  entitlements  to

various state-conferred privileges."  Id. at 2299.  The Court                                                     

expressed two  policy concerns:  its  prior approach "creates

disincentives   for  States   to  codify   prison  management

procedures in the interest  of uniform treatment."  Id.   The                                                                   

old  approach also  "has led  to the  involvement of  federal

courts in the day-to-day  management of prisons," contrary to

cases affording  state  officials appropriate  deference  and

flexibility in prison management.  Id.                                                  

          The Court held that states may still create liberty

interests that afford prisoners due process protections,  but

explained:

          [T]hese   interests  will   be  generally
          limited to freedom from  restraint which,
          while not exceeding the sentence  in such
          an unexpected  manner as to  give rise to
          protection by  the Due Process  Clause of
          its own force . . . , nonetheless imposes
          atypical and significant hardship  on the                                                               
          inmate  in  relation   to  the   ordinary                                                               
          incidents of prison life.                                               

Id. at 2300 (internal citations omitted) (emphasis supplied).               

Applying this standard  to the situation in Sandin, the Court                                                              

                             -9-

concluded  that disciplining  a prisoner  for thirty  days in

segregated confinement "did not present the type of atypical,

significant deprivation  in which a  state might  conceivably

create a liberty interest."  Id. at 2301.                                            

     C. Applying Sandin                 C. Applying Sandin                                   

          Defendants argue that Sandin requires this court to                                                  

affirm  the district  court's  dismissal  of plaintiff's  due

process  claim.   They agree  with the  lower court  that the

language of the regulations and Agreement was insufficient to

create  a  liberty  interest in  any  event,  but argue  that

removal from  work release and return  to regular confinement

did not meet Sandin's new threshold criterion of an "atypical                               

and significant  hardship . . . in  relation to  the ordinary

incidents  of  prison  life."   Id.  at  2300.   If  solitary                                               

confinement for thirty days  did not, in Sandin, rise  to the                                                           

level of  an  "atypical, significant  hardship," then  surely

removal from work release does not do so, defendants say.  

          Plaintiff  replies that Sandin is unclear about the                                                    

extent  to  which  the   standard  for  recognizing   liberty

interests has changed.  He argues that the Due Process Clause

still  protects inmates  against important  deprivations, and

that  removal  from work  release  and transfer  to  a higher

security  prison  constitute  an  "atypical  and  significant

hardship."  

                             -10-

          We  have some  sympathy for  plaintiff's complaint.

His  removal  from a  work release  program  in which  he was

apparently  functioning well,  and his  transfer to  a medium

security facility,  may  well,  from  his  perspective,  seem

unjust.  But  the federal courts are not authorized by law to

second-guess  the  policies  of prison  administrators  in  a

general sense.    The  question assigned  to  us  is  whether

plaintiff had a liberty interest in remaining in work release

status,  such  that under  the  Fourteenth  Amendment he  was

entitled to due process of law before that privilege could be

revoked.   We are  constrained to agree  with defendants that

the new  threshold test  articulated in Sandin  precludes our                                                          

finding a liberty interest and bars relief.6  

     As in Sandin, the state's action here did not in any way                             

affect  the duration of Dominique's state  sentence.  See id.                                                                         

at 2301-2302.   Additionally, his transfer  to a more  secure

facility subjected him to  conditions no different from those

ordinarily  experienced  by large  numbers  of other  inmates

serving their sentences in customary fashion.  In Sandin, the                                                                    

Supreme  Court observed  that  conditions  in the  segregated

confinement at issue "mirrored  those conditions imposed upon

inmates   in   administrative   segregation  and   protective

                                                    

6.  Sandin  applies retroactively  to the  present  case, the                      
Supreme Court having applied the rule  announced in Sandin to                                                                      
the parties in  that case.   See Rivers  v. Roadway  Express,                                                                         
Inc.,  114 S. Ct. 1510, 1519 (1994); Harper v. Virginia Dep't                                                                         
of Taxation, 113 S. Ct. 2510, 2517 (1993).                       

                             -11-

custody."  Id. at  2301 (footnote omitted).  The  Court found                          

support in this similarity  for the proposition that "[b]ased

on   a  comparison   between   inmates  inside   and  outside

disciplinary  segregation, the State's actions in placing him

there  for 30  days did  not work  a major disruption  in his

environment."   Id. (footnote omitted).   Similarly here, any                               

hardship  was  not "atypical"  in  relation  to the  ordinary

incidents of prison life.

          It is true that  there is a considerable difference

between the freedoms  Dominique enjoyed when  he was in  work

release  status  and the  conditions  of  incarceration at  a

medium security  facility.  To return  from the quasi-freedom

of work  release to  the  regimentation of  life within  four

walls  may  be said,  relatively  speaking,  to have  been  a

"significant" deprivation.   Nonetheless, confinement  within

four  walls of the type plaintiff now endures is an "ordinary

incident of prison life."   It is not "atypical."   The Court

has noted  that an  inmate's subjective expectations  are not                                                   

dispositive of  the liberty-interest analysis.   See id., 115                                                                    

S.Ct. at 2301 n.9.

          If Dominique's  contrary argument were  to prevail,

we would  open the door to  finding an "atypical...restraint"

whenever  an  inmate  is  moved   from  one  situation  to  a

significantly harsher one that is, nonetheless, a commonplace

aspect of prison  existence.  For example, a liberty interest

                             -12-

could  be claimed if an inmate were moved into less agreeable

surroundings  than  his  initial  placement.    Similarly,  a

liberty interest might be claimed whenever authorities or the

state  legislature  decided to  eliminate  or  cut back  work

release  programs or  furloughs.   Such  changes, painful  to

those affected, could be  regarded under plaintiff's argument

as implicating liberty interests even though the prisoner was

never placed in conditions  going beyond the customary rigors

of  prison life.  Such an outcome, we believe, would directly

conflict with Sandin's teachings.   Sandin's new standard was                                                      

expressly  adopted by  a majority  of  the Supreme  Court "to

afford  appropriate   deference  and  flexibility   to  state

officials trying  to manage a volatile environment."   Id. at                                                                      

2299.   The Court plainly intended to eliminate the basis for

federal due process  claims stemming from internal  transfers

and status changes that do not result in "atypical hardship,"

i.e.,  hardship beyond  the  norms of  ordinary prison  life.                

Hence the state's removal  of Dominique's measure of freedom,

replacing it  with confinement of a  sort commonly associated

with  ordinary prison life, did not violate anything that can

be termed a liberty  interest.  See Klos v.  Haskell, 48 F.3d                                                                

81  (2d Cir.  1995)  (a  pre-Sandin  case denying  relief  on                                               

strikingly similar  facts,  cited with  apparent approval  in

Sandin, 115 S. Ct. at 2299-2300).                  

                             -13-

          Plaintiff  urges  that execution  of  the Agreement

shows  that a matter sufficiently important to give rise to a

liberty  interest is at stake.  Prison officials, it is said,

do  not enter  into  agreements with  inmates concerning  the

ordinary incidents  of prison  life.   As the  district court

found, however, the  Agreement preserved broad decisionmaking

authority  of state  officials  and the  regulations did  not

impose any  duty  to retain  plaintiff  in the  work  release

program.    And,  that  analysis aside,  withdrawal  of  work

release privileges  did not  meet Sandin's threshold  test of                                                    

working a  "significant and atypical hardship  in relation to

the  ordinary incidents of prison life."  While we may regret

the   disappointment   and  frustration   inherent   in  such

withdrawal, the hardship  was not "atypical."   Cf. Bulger v.                                                                      

United  States Bureau of Prisons, 65 F.3d 48, 49-50 (5th Cir.                                            

1995)  (inmate terminated  from a  prison job  permitting the

automatic  accrual of  good-time  credits lacked  a protected

liberty interest,  despite  apparent  violation  of  a  state

regulation); see also  Mitchell v. Dupnik,  67 F.3d 216,  221                                                     

(9th Cir. 1995) (inmate  lacked a protected liberty interest,

despite   corrections   officer's    violation   of    prison

regulations);  Orellana v.  Kyle, 65 F.3d  29, 32  (5th Cir.)                                            

("the  ambit of  [prisoners'] potential  Fourteenth Amendment

due process liberty claims has been dramatically narrowed" by

                             -14-

Sandin), petition for cert. filed, (U.S.  Sep. 15, 1995) (No.                                             

95-6743).

          Under  the standard  announced  in Sandin,  we hold                                                               

that  plaintiff's loss  of  work release  privileges did  not

affect any  state-created liberty interest of  his, hence did

not violate the Due Process Clause.7  

IV. Ex Post Facto Clause            IV. Ex Post Facto Clause

          Plaintiff asserts a violation  of the Ex Post Facto

Clause  based  on  a   new  state  regulation  governing  the

treatment and  movement of  sex offenders from  commitment to

release.   See  103  DOC     446.8    The  regulation  became                          

                                                    

7.    The inmate  in Sandin  based his  claim to  a protected                                       
liberty interest on state  regulations alone, and not on  any
written agreement  with the state,  as is also  present here.
The parties have not  argued that Sandin is  inapplicable for                                                    
this reason.  This court's prior relevant cases  have applied
a language-focused approach  to the state scheme as  a whole,
whether or not an  agreement was involved.  See,  e.g., Rodi,                                                                        
941  F.2d at 26 ("Our own precedents similarly teach that the
appropriate  [Thompson/Hewitt] constitutional  analysis looks                                         
beyond   the  State's   statutes  to   administrative  rules,
regulations,  contractual  commitments,   and  the   like.");
Lanier, 876 F.2d at 248.                  

8.    The Sex  Offender Treatment  policy applies  to inmates
serving a  sentence for  or convicted  in the  past of  a sex
offense, or serving a sentence for a non-sexual offense where
"[t]here are sexual overtones in  the reading of the official
version of a crime for which the inmate may have been charged
and  sentenced."   103 DOC  446.08.   The  policy's expressed
goal is "to create a system  in which there is 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.   446.07.                                     
     The policy requires identified sex offenders to complete
a four-phase treatment program  at a medium security facility

                             -15-

effective  in  October  1994,  at which  time  plaintiff  was

incarcerated  at the medium security facility to which he had

been  transferred following  his  removal from  work  release

earlier  that   year.     Plaintiff  does  not   dispute  the

Commonwealth's contention  that under  the regulation, he  is

presently  ineligible  to  participate in  the  work  release

program.  While the district court did not articulate a basis

for  this  ineligibility  (instead  assuming  that  was  so),

plaintiff appears  to be an  identified sex offender  who may

not be moved to a minimum  security facility, with associated

privileges,  unless  and until  he  successfully completes  a

treatment program,  admits his offense, and otherwise obtains

approval  for  a transfer.    See id.      446.07, 446.08(4),                                                 

446.13. 

          The district court  rejected plaintiff's claim that

the regulation amounted  to punishment applied  retroactively

to  plaintiff's  offense.     The  court  reasoned  that  the

regulation  was "driven  by  safety concerns,  and  not by  a

                                                    

as  a  precondition  for   transfer.    It  outlines  further
transition phases and evaluation processes as well.  Transfer
appears  ultimately  possible   absent  "program   failures,"
defined to  include inmates  who  remain in  denial of  their
offense, those  who "refuse  to participate or  minimize with
regard  to their  offense(s),"  and those  at the  non-secure
facility treatment phase who move toward relapse or otherwise
become  "at risk."    Id.    446.13.   The  regulations  also                                     
contain a  sex offender "notice of  release" provision, which
is not at issue in this appeal.  See id.   446.14.                                                    

                             -16-

desire  to  impose  further  punishment on  prisoners."    We

affirm, again guided by a recent Supreme Court decision.9

          The Ex  Post Facto  Clause provides that  "No State

shall . . . pass  any . . . ex post facto Law."   U.S. Const.

art.  I   10.   Ex post  facto laws include  "'every law that

changes the  punishment, and  inflicts a  greater punishment,

than  the law annexed to the crime, when committed.'"  Miller                                                                         

v. Florida, 482 U.S. 423, 429 (1987) (quoting Calder v. Bull,                                                                        

3 U.S. (Dall.) 386, 390 (1798)).  

          Defendants have not argued that the new  regulation

is  not a "law"  for ex post  facto purposes.   There is some

disagreement among the  circuits on this matter.   Cf. Bailey                                                                         

v.  Noot,  503  U.S.  952, cert.denied,  (1992)  (White,  J.,                                                  

dissenting) (noting  circuit split on whether  Clause applies

to revised  state parole regulations).10   In  past cases  we

                                                    

9.   Plaintiff's ex  post facto  claim is not  barred by  our
above  ruling that he lacks a protected liberty interest.  As
the Supreme Court has stated, "Evaluating whether a right has
vested  is important  for claims under  the Contracts  or Due
Process   Clauses,   which   solely    protect   pre-existing
entitlements  . . . .     The  presence  or   absence  of  an
affirmative, enforceable right  is not relevant,  however, to
the ex post facto prohibition. .  . ."  Weaver v. Graham, 450                                                                    
U.S.  24, 29-30 (1981); Jones v. Georgia State Bd. of Pardons                                                                         
&amp; Paroles, 59 F.3d 1145, 1148 n.6 (11th Cir. 1995).                       

10.  The  dispute  appears  to  turn  on  whether a  rule  is
legislative (based on a delegation of statutory authority) or
merely  interpretive,  and  whether  a  legislative  rule  is
binding or merely guides the exercise of discretionary power.
See, e.g., Jones,  59 F.3d  at 1149 n.8  (applying Clause  to                            
state  parole   rules  and   comparing  cases);   Kellogg  v.                                                                     
Shoemaker,  46 F.3d 503,  509 (6th Cir.)  (applying Clause to                     
binding  parole regulations),  cert. denied,  116 S.  Ct. 120                                                       

                             -17-

have applied the Clause to the federal Sentencing Guidelines,

see,  e.g., United States v. Harotunian, 920 F.2d 1040, 1041-                                                   

1042 (1st Cir. 1990), and rules issued by a state agency, see                                                                         

Martel  v.  Fridovich,   14  F.3d  1,   3  (1st  Cir.   1993)                                 

(Massachusetts  Department of  Mental Health).   We  need not

address  the  possible  limits  of these  holdings,  for  the

parties  have  not  raised the  issue  and  we  find that  no

violation occurred, even  assuming arguendo  that the  Clause

applies  to the regulation at issue.  Accord Hamm v. Latessa,                                                                        

Nos. 94-2018, 94-1999, slip  op. at 21 &amp; n.14  (1st Cir. Dec.

27, 1995)  (declining to decide whether  a parole eligibility

policy was a "law" for ex post facto purposes).

          The Supreme Court has  reiterated recently that the

proper focus of ex post facto inquiry is whether the relevant

change  "alters  the   definition  of  criminal  conduct   or

increases  the  penalty  by  which a  crime  is  punishable."                                   

California Dep't of Corrections v. Morales, 115  S. Ct. 1597,                                                      

1602  n.3 (1995)  (emphasis  supplied); see  also Collins  v.                                                                     

Youngblood, 497 U.S.  37, 43  (1990) (citing  Calder, 3  U.S.                                                                

(Dall.) at 391-392).  Morales examined a California statutory                                         

amendment which authorized the Board of Prison Terms to defer

                                                    

(1995) and  116 S. Ct. 274  (1995); Francis v.  Fox, 838 F.2d                                                               
1147,  1149-1150 (11th  Cir. 1988)  (holding that  state work
release  regulation was not an ex post facto "law"); Faruq v.                                                                      
Herndon, 831 F. Supp. 1262, 1279-1280  (D. Md. 1993) (holding                   
that  work release  and  security classification  regulations
were not ex post facto "laws"), aff'd, Briscoe v. Herndon, 56                                                                     
F.3d 60 (4th Cir. 1995).

                             -18-

for  up  to  three  years  parole  suitability  hearings  for

multiple murderers.    The  Court  found  no  ex  post  facto

violation,  because the  amendment  "create[d] only  the most

speculative  and  attenuated  possibility  of  producing  the

prohibited effect of increasing the measure of punishment for

covered crimes."  Morales, 115 S. Ct. at 1603.  The Court did                                     

not  develop  a  precise  formula;  rather,  it  said,  these

judgments "must  be  a matter  of 'degree.'"   Id.  (internal                                                              

citation omitted).   It stated,  however, that a  change that

"simply 'alters the method to be followed' in fixing a parole

release date under identical substantive standards," but does

not change the applicable sentencing range, was insufficient.

Id.  at  1602  (internal  citation omitted);  cf.  Miller  v.                                                                     

Florida, 482 U.S. 423 (1987) (violation found where statutory                   

amendment increased presumptive  sentencing range for certain

sexual offenses  and permitted departure only  for "clear and

convincing reasons");  Weaver v.  Graham, 450 U.S.  24 (1981)                                                    

(violation  found  where  the statute  retroactively  reduced

"gain  time" credits  to prisoners,  thereby  eliminating the

lower end of the possible range of prison terms).

          The question  here, as  in Morales, is  whether the                                                        

instant regulation "increases the penalty by which a crime is

punishable."   Morales, 115  S. Ct. at  1602 n.3.   It can be                                  

argued that  the regulation increases the  penalty because it

subjects Dominique to a different and stricter prison regime:

                             -19-

unless  and  until he  successfully completes  the prescribed

treatment  program and admits  to a crime  he continually has

denied,  he must  remain confined  at no  less than  a medium

security   facility  and  remain  ineligible  for  privileges

associated with  lower security  imprisonment.  We  conclude,

however, that  this change in the  conditions determining the

nature  of his confinement while  serving his sentence was an

allowed alteration in  the prevailing  "legal regime"  rather

than  an "increased penalty" for ex post facto purposes.  See                                                                         

id.  at 1603  n.6;  cf. In  re  Medley, 134  U.S.  160 (1890)                                                  

(discussing  extreme  penalty  of  solitary  confinement  and

finding  an  ex post  facto  violation  where a  new  statute

required a prisoner to serve four weeks in complete isolation

before being executed  at a  time unknown to  him); see  also                                                                         

Ewell  v. Murray,  11 F.3d  482, 487  (4th Cir.  1993), cert.                                                                         

denied, 114 S. Ct. 2112 (1994) (finding that a new regulation                  

punishing a prisoner's refusal  to submit to a DNA test  by a

loss of good-time credits and possible isolated placement for

up  to 15  days was not  an ex  post facto  violation but was

"reasonably within  the  administrative structure  of  prison

authority that attends every sentence").  

          The   change   does  not   affect  the   length  of

Dominique's sentence or his parole options.  Cf. Morales, 115                                                                    

S.  Ct. at  1603  &amp; n.6  (emphasizing  speculative effect  on

prisoner's actual  term of confinement, and  stating that the

                             -20-

ex post facto clause  does not "require that the  sentence be

carried out under the  identical legal regime that previously

prevailed"); Hamm, slip op.  at 28 (finding no ex  post facto                             

violation  where a  revised parole  policy which  postponed a

prisoner's initial  parole  hearing presented  a  speculative

risk  of extending his sentence).   Compare Vargas v. Pataki,                                                                        

899  F. Supp.  96,  99 (N.D.N.Y.  1995) (statutory  amendment

making an applicant for work  release no longer eligible  was

not an ex post facto  violation) with Knox v. Lanham, 895  F.                                                                

Supp.   750,   758   (D.Md.   1995)   (change   in   security

classification and work release policies violated the ex post

facto clause where they  "directly impact[ed] upon  [lifers']

actual eligibility for parole").  

          While the matter is perhaps close, we conclude that

plaintiff  has  not  satisfied   his  burden  of  showing  an

increased penalty for  his crime.  See Morales, 115 S. Ct. at                                                          

1602  n.3   (challenging  party  has   "ultimate  burden   of

establishing  that  the  measure  of  punishment  itself  has

changed").   The regulation  appears primarily to  affect the

methods  followed to treat certain sex offenders for a period

of  time,  e.g.,  with   regard  to  facility  placement  and                           

treatment  programs.   The  Ex  Post  Facto Clause  does  not

encourage  close scrutiny  by the  federal courts  of ongoing

procedural or  operational changes in  prisons to  coordinate

                             -21-

treatment, promote security,  and protect the public  safety.

See id. at 1603; Martel, 14 F.3d at 2.                                   

Affirmed.                     

                             -22-
