                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        July 25, 2007
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court

 LEE HELM ,

          Plaintiff-Appellant,

 v.                                                      No. 07-1070
                                              (D.C. No. 06-CV -00624-PSF-CB S)
 STA TE OF C OLO RA D O ; JO E                            (D . Colo.)
 ORTIZ, Director of D.O.C.; and
 ALLEN STANLEY, Chairman of
 Parole Board,

          Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Lee H elm is a state prisoner housed in a Colorado prison facility. He

contends that he is entitled to be housed in a hospital or mental health facility and

to receive treatment as a sex offender; the defendants’ failure to provide him with

such housing and treatment, he alleges, amounts to a violation of his


      *
         After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent except under the doctrines of law of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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
constitutional guarantees to due process and equal protection. The district court,

in concordance w ith a magistrate judge’s recommendation, granted defendants’

motion to dismiss M r. Helm’s claims in their entirety. W e affirm.

                                        ***

      After his conviction for first-degree sexual assault and second-degree

kidnapping, M r. Helm was sentenced under the Colorado’s Sex Offender’s Act of

1968, Colo. Rev. Stat. §§ 16-13-201, et seq. (1991) (“1968 Act”), to the custody

of the Department of Corrections (“DOC”) for an indeterminate period. In his

operative amended complaint, M r. Helm contends that the conditions of his

confinement violate due process because his commitment under the 1968 Act to

an indeterminate term was premised on the supposition that he would undergo

psychiatric treatment in a medical setting, something he alleges has never

occurred. M r. Helm’s equal protection claim is based on the contention that he

has not been treated like others comm itted under the 1968 Act who have received

proper housing and treatment. 1

      W ith respect to M r. Helm’s due process claim, the district court held that

the 1968 Act, which covers those, including M r. Helm, who comm itted sexual



      1
         The district court determined that its review of M r. Helm’s claims was
most appropriately conducted through the prism of 42 U.S.C. § 1983, rather than
that of 28 U.S.C. § 2241. Order, 2007 W L 322770, at *4-5; accord Preiser v.
Rodriguez, 411 U.S. 475, 499 (1973); Boutwell v. Keating, 399 F.3d 1203, 1209
(10th Cir. 2005); Reed v. M cKune, 298 F.3d 946, 953 (10th Cir. 2002). This is
not challenged on appeal.

                                         -2-
offenses prior to November 1998, Colo. Rev. Stat. § 18-1.3-902 (2007), does not

require the DOC to place M r. H elm in a treatment facility or program. See Order

at *6; Colo. Rev. Stat. § 18-1.3-904; id. § 18-1.3-903(3). Once M r. Helm was

committed to the DOC, the parole board’s decision where and how to place him

within the state penal system was a matter of discretion. See Colo. Rev. Stat.

§ 16-13-216; see also generally M ahn v. Gunter, 978 F.2d 599, 602 (10th Cir.

1998) (holding that a C olorado inmate has no liberty interest in the state parole

board’s wholly discretionary decision).

      The district court recognized that since the passage of the 1968 Act, the

Colorado legislature has amended course in this arena. Emphasizing the success

and importance to public safety of providing treatment to those committed for

sexual offenses, in 1998 the legislature made treatment for sex offenders

mandatory, not discretionary, on the part of the DOC. See Colo. Rev. Stat. §§ 18-

1.3-1001, 1004(3). While acknowledging the value of such treatment, however,

the legislature deliberately chose to retain the 1968 Act’s discretionary regime for

offenses committed before November 1998. See Colo. Rev. Stat. § 18-1.3-902

(2007); 2002 Colo. Sess. Laws ch. 318. W hatever the wisdom of this choice, the

district court recognized and gave effect to the legislature’s decision, holding

that, while the 1998 Act requires inmates convicted under it to undergo treatment,




                                          -3-
for those subject to the 1968 Act, the question of placement and treatment

remains one of discretion. 2

      W ith respect to M r. Helm’s equal protection claim, the district court

acknowledged M r. Helm’s allegation that he was not treated like those committed

to treatment facilities under the 1968 Act. The court nonetheless dismissed his

claim because, it held, M r. Helm’s allegation of differential treatment was

conclusory and failed to include factual averments suggesting that M r. Helm is

“similarly situated” to others sentenced under the 1968 Act who received the

housing and treatment he seeks.

      Finally, although the issue was not raised by the parties or discussed by the

magistrate judge, the district court sua sponte addressed the constitutionality of

M r. Helm’s indeterminate sentence, summarily concluding that it comports w ith

due process, equal protection, and Eighth Amendment norms.

                                         ***




      2
         It is on this basis, then, that the district court distinguished Beebe v. Heil,
333 F. Supp. 2d 1011, 1016-17 (D. Colo. 2004), and its holding that those
convicted under the 1998 Act have a statutory right to receive sex offender
treatment, the deprivation of which violates a prisoner’s constitutionally protected
liberty interest. The district court also corrected M r. Helm’s mistaken impression
that transfer to a facility where he can obtain proper psychiatric treatment is a
prerequisite for parole. See Order at *4-5. For those convicted under the 1968
Act, the parole board has exclusive authority to parole any person committed to
the custody of the DOC, see Colo. Rev. Stat. § 16-13-216 (2007), and unlike the
1998 Act at issue in Beebe, the 1968 statute does not require the board to consider
successful participation in a treatment program. See id.; O rder at *4-5.

                                          -4-
      W e review the district court’s grant of the defendants’ motion to dismiss de

novo, accepting all well-pleaded factual allegations as true and view ing them in

the light most favorable to M r. H elm. See Lovell v. State Farm M ut. Auto Ins.

Co., 466 F.3d 893, 898-99 (10th Cir. 2006). Because he is proceeding pro se, we

construe his pleadings with special solicitude. See Erickson v. Pardus, __ U.S.

__, 127 S. Ct. 2197, 2200 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th

Cir. 2007). Even with these standards in mind, we agree with the district court’s

disposition for substantially the reasons it stated, though we pause to add two

additional observations.

      First, with respect to M r. Helm’s equal protection claim, even if M r.

Helm’s conclusory allegation sufficed to state a claim that he is similarly situated

to other inmates confined under the 1968 Act who have been treated differently,

M r. Helm’s pleading contains no allegation of any kind suggesting that this

difference in treatment w as unrelated to a legitimate penological purpose. As w e

explained in Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994), for a

difference in treatment to give rise to an equal protection claim where no suspect

classification is involved, a prisoner-litigant must allege facts indicating that this

difference is not reasonably related to a proper penological purpose. This M r.

Helm fails in any manner to do.

      Second, we see no reason to reach the thorny issues associated with the

question whether the indeterminate sentencing provision of the 1968 Act

                                          -5-
comports w ith constitutional guarantees contained in the Eighth and Fourteenth

Amendments. Even liberally construing his pleadings and briefs, M r. Helm has

not argued that the indeterminate sentencing provision of the 1968 Act is

unconstitutional; as the district court frankly acknowledged, the matter simply

was not “raised by the parties or discussed by the M agistrate Judge.” Order at

10. 3 Because we generally avoid passing on the constitutionality of legislation

when possible, see, e.g., United States v. Resendiz-Ponce, __ U.S. __, 127 S. Ct.

782, 785 (2007); United States v. Cardenas-Alatorre, 485 F.3d 1111, 1115 n.9

(10th Cir. 2007), not to mention when the matter is not fairly raised by the

parties, we believe these issues are best left for another day.

                                        ***

      For the foregoing reasons, we affirm the district court’s judgment

dismissing M r. Helm’s amended complaint, though we express no view s on its

sua sponte consideration of the constitutionality of the 1968 Act in the course of




      3
        Likewise, M r. Helm’s equal protection claim regarding the treatment of
those convicted under the 1968 Act does not call upon us to address the distinct
and perhaps more involved question whether the legislature’s decision to treat
those convicted under the 1968 Act differently from those governed by the 1998
Act passes constitutional muster.

                                         -6-
its opinion-order. W e grant M r. Helm’s application to proceed in form a pauperis.



                                       ENTERED FOR THE COURT



                                       Neil M . Gorsuch
                                       Circuit Judge




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