                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                                       PUBLISH
                                                                              MAR 7 2000
                     UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                  Clerk
                                  TENTH CIRCUIT



 JOHN H. CHAMBERS,

       Plaintiff-Appellant,
 v.

 COLORADO DEPARTMENT OF                                     No. 97-1023
 CORRECTIONS; MARGARET HEIL, in
 her Individual and Official Capacity,

       Defendants-Appellees.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                          (D.C. No. 95-Z-2028)


                              OPINION ON REMAND
                        _________________________________

Richard Byron Peddie and Catherine A. Hance, Frascona, Joiner & Goodman, P.C.,
Boulder, CO, for Plaintiff-Appellant.

Ken Salazar, Attorney General, and Paul S. Sanzo, First Assistant Attorney General,
Denver, CO, for Defendants-Appellees.


Before HENRY, HOLLOWAY, and PORFILIO, Circuit Judges.


PORFILIO, Senior Circuit Judge.
       The questions presented here are whether the Colorado Department of Corrections’

Sex Offender Component classifying John H. Chambers a sex offender and requiring his

participation in the Sexual Offender Treatment Program (SOTP) violates the Ex Post

Facto Clause and implicates a liberty interest under the Due Process Clause of the

Fourteenth Amendment. We affirm, in part, and reverse, in part.

       Mr. Chambers, an inmate in the custody of the Colorado Department of

Corrections (CDOC), began serving a thirty-nine year sentence for aggravated robbery

and attempted theft in 1985.1 In 1987, CDOC Health Services classified Mr. Chambers as

a Sexual Offender, S-2, [Exh. 9], based on the Sex Offender Component of its Risk

Assessment Management Program (RAMP) then in effect.2 [Exh. 8]. The program

targeted its mission “to identify and provide specialized supervision and treatment for

high-risk assaultive offenders.” Noting the high rate of recidivism of the sex offender

population, the program sought to “identify, track, treat and supervise sex offenders in

order to reduce risk to the community.” The program categorized sex offenders based on




       We have previously set forth some of the procedural and factual history,
       1

Chambers v. Colorado Dep’t of Corrections, 166 F.3d 1220 (10th Cir. 1999)
(unpublished) (Chambers III).

       The Sex Offender Component was part of CDOC Administrative Regulation
       2

(A/R) 600-1 promulgated in 1985 by the CDOC for the classification of inmates.

                                            -2-
their criminal history. The S-2 sex offender “committed a sex offense but was not

convicted of a sex offense charge.”3

       Despite Mr. Chambers’ S-2 classification, CDOC did not commence its prescribed

sex offender treatment at that time. That treatment, including participation in group

therapy, is conditioned upon the inmate’s admitting he committed a sex offense; stating

he has a problem in this area; and demonstrating his willingness to work on the problem.

Instead, according to CDOC Progress Assessment Summary sheets, Mr. Chambers

completed his GED, a basic and advanced welding class, a basic mental health program,

was assigned as a law librarian in 1991, and was “report free, and definitely not

considered a management problem.”4 Presumably based on this conduct, Mr. Chambers

continued to receive good time and earned time credits totaling ten days a month.

       In 1992, however, Ms. Phyllis Bachicha, a CDOC case manager, reviewed the file

and discovered a police report indicating that in 1983, the year before his present sentence

of conviction, Aurora, Colorado police arrested Mr. Chambers and charged him with first

degree sexual assault. The report included the victim’s account of the alleged rape and

sodomy and Mr. Chambers’ contrasting story. Statements from both the victim and Mr.

Chambers converged only upon the facts the two were living together for perhaps a



       3
        S-1 is an inmate convicted of a sex offense charge; and S-3 inmates “exhibited
sex offense behavior while incarcerated.”
       4
        The reports also noted, however, Mr. Chambers was ineligible for SOTP because
he refused to acknowledge his problems in this area.

                                            -3-
month and had been drinking on the night of the alleged assault. Mr. Chambers insisted

the sex was consensual, and the police evidently were unable to establish otherwise.

Although the hospital report listed multiple bruises the victim sustained, police were

unable to confirm details of the assault she described.5 The police report noted detectives

advised the victim that she would have to testify in a trial to the court and “it would be

brought out during trial that she had been living with the victim [sic] and that she had had

intercourse with him before. Victim became upset and stated that if that were the case,

that she would drop the charges.” [Exh. 3]. The victim then wrote and signed a statement

to that effect.6

       At oral argument before this panel, the State acknowledged its decision to pursue

treatment under the program for Mr. Chambers was based on the victim’s affidavit.

Following Ms. Bachicha’s review, Mr. Chambers submitted another questionnaire

denying his alleged sexually assaultive behavior, thus signifying his “ineligibility” to

participate in the program.7 Because Mr. Chambers did not participate in the program,


       5
        For example, the victim told the police Mr. Chambers tied her to the bed although
the bed she pointed out had no posts or other railings. The victim then stated she did not
remember because it was dark.
       6
        The affidavit stated, “I’m dropping charge because I feel I have no chance to win
this case in court. His lawyer would make him look innocent & me be the dog which he
is the one. If you let him back on the streets there will be another victim.”
       7
         In 1989, an SOTP case manager interviewed Mr. Chambers and denied his
eligibility to participate in the program because he denied having committed a sexual
assault. [Exh.12]. In 1991, Gloria Green, another case manager, submitted an individual
                                                                                 (continued...)

                                             -4-
Ms. Bachicha recommended reducing the monthly ten days of earned time credit he

received to seven days.

       This three-day reduction based on his refusal to accept the classification of sex

offender triggered the series of lawsuits Mr. Chambers then filed. As we noted in

Chambers III, in his first federal lawsuit, Mr. Chambers, pro se, alleged the loss of

earned time credits based on the classification violated his right to due process and equal

protection and privilege against self-incrimination. We affirmed that dismissal upon

finding earned time credits were a matter of discretion and could not support a

constitutional claim. Chambers v. Bachicha, 39 F.3d 1191 (10th Cir. 1994)

(unpublished). In his second suit, the Colorado Court of Appeals affirmed the dismissal

based on res judicata of his state suit for declaratory relief seeking restoration of his

earned time credits based on the classification. Chambers v. Colorado Dept. of

Corrections, No. 95CA1248 (Colo. Ct. App. Apr. 18, 1996). Returning to federal court

again pro se, Mr. Chambers filed the lawsuit underlying our second review here

challenging his classification as a sexual offender in violation of due process and equal

protection. On cross-motions for summary judgment, the district court held the action


       7
        (...continued)
contact report on Mr. Chambers, stating the SOTP team “examined police reports which
clearly describes [sic] a sexual assault. We continue to recommend SOTP for him & that
earned time be withheld for not being involved.” [Exh. 14]. Ms. Green also
recommended moving Mr. Chambers from Fremont Correctional Facility, a medium
security facility, to another prison to make room for those eligible to participate in the
SOTP.

                                             -5-
was not barred by res judicata because the challenge to the classification itself had not

been previously raised. However, the court granted the CDOC’s motion for summary

judgment on the claims of the violation of Mr. Chambers’ equal protection, due process,

and ex post facto rights. The CDOC did not cross-appeal that conclusion, the district

court having rejected each of the attendant constitutional claims.

       In his appeal of that judgment, we appointed counsel to address the

constitutionality of Colorado’s Sex Offender Treatment Program, Colo. Rev. Stat. § 16-

11.7-101 et seq., effective 1992 (the Act), believing that was the operative authority

challenged in Mr. Chambers’ pro se brief. Our focus was sharpened by Neal v. Shimoda,

131 F.3d 818 (9th Cir. 1997).

       With this direction, appointed counsel contended the Act violated the Ex Post

Facto Clause because it, in fact, imposed punishment in the guise of treatment by

reducing the amount of earned time credit Mr. Chambers received, thereby lengthening

his sentence. Further, the Act violated due process, counsel argued, because this highly

stigmatizing label worked an atypical deprivation of Mr. Chambers’ liberty interest. The

CDOC responded that even though the action was barred by res judicata, the Constitution

did not provide a right to any particular prison classification. The CDOC distinguished

Neal v. Shimoda on the ground the Hawaii Sexual Offender Treatment Program

conditioned eligibility for parole on the inmate’s being labeled a sex offender and




                                            -6-
participating in the treatment program. In contrast, the CDOC argued, Mr. Chambers

“lost nothing to which he ever had an entitlement.”

       However, during oral argument, the CDOC told the panel the Act did not even

apply to Mr. Chambers’ case. Instead, his classification was premised on internal CDOC

policy which is not limited to inmates convicted of sex offenses. After further confusion

over whether Mr. Chambers was prevented from receiving earned time credits or simply

had his earned time credits reduced and which earned time credit statute applied, the

panel remanded the case for the district court to conduct an evidentiary hearing aimed at

clarifying the factual and legal predicates of the issues. Chambers III.

       The joint stipulation of facts and exhibits filed in the district court provides the

following clarification. As factual support for the classification, the police report,

victim’s affidavit, and reference to the 1983 sexual assault in the presentence report filed

for Mr. Chambers’ present incarceration comprised the evidence upon which the CDOC’s

SOTP team had relied since 1987. Mr. Chambers was classified an S-2 based on the 1987

Sex Offender Component of the RAMP, A/R 600-1. However, the same regulation and

criteria are applied to inmates covered by the ACT, and the treatment programs are

consolidated. In 1989, when RAMP created five risk categories, S-1 through S-5,

incorporated in Regulation 700-19, Mr. Chambers’ S-2 classification became S-4.8 Mr.

       8
        Administrative Regulation 700-19 at 2, Article IV(A), [Exh. 10], identifies S-4 as
“[i]ndividuals whose history indicates sexual assaults or deviance for which they may not
have been convicted. These cases often involve plea bargains where the factual basis of
                                                                                  (continued...)

                                             -7-
Chambers has never admitted to or been convicted of any sex offense although, the

parties stipulated, “[t]here are convicted sex offenders who do not participate in SOTP

and who nevertheless receive the maximum awardable earned time credits.”9 If Mr.

Chambers “admitted liability” and complied with SOTP even if he could not participate,

“he would receive an additional 3 days of earned time credits each month.” Mr.

Chambers filed a grievance contesting his S-4 classification, but CDOC personnel

rejected it in each of the three steps of the grievance procedure. Additionally, the parties

stipulated until June 7, 1990, Colo. Rev. Stat. § 17-22.5-302 governed the calculation and

award of Mr. Chambers’ earned time credits. Presently, Colo. Rev. Stat. § 17-22.5-405

applies.10


       8
        (...continued)
the crime involved a sex offense. This category also includes misdemeanor convictions
and juvenile convictions for sex offenses.” The parties agreed, “On one or more
occasions, one or more of his case managers have erroneously listed him as S-5
[individuals with past or current felony sexual offense convictions] although his correct
classification is S-4.”
       9
        CDOC maintains, and Mr. Chambers does not disagree, that participation in an
SOTP depends on availability of the program at the particular prison facility as well as
size limitations and the time remaining in the inmate’s parole eligibility date.
Presumably, then, the SOTP may be satisfied simply by the inmate’s admission he is a sex
offender.
       10
           Colo. Rev. Stat. § 17-22.5-405(1) states:

       Earned time, not to exceed ten days for each month of incarceration or
       parole, may be deducted from the inmate’s sentence upon a demonstration
       to the department by the inmate, which is certified by the inmate’s case
       manager or parole officer, that he has made consistent progress in the
                                                                                (continued...)

                                              -8-
       Thus, though not originally classified under the Act, the terms of Mr. Chambers’

treatment including the requirement for his admission to being a sex offender are now

merged into those of the Act. Further, though the same factual predicates for classifying

him a sex offender have existed since he was first so labeled, only in 1992 were earned

time credits taken away as a consequence of the label. Hence, the focus becomes whether

what was taken away as a consequence of the label is simply a privilege, as the CDOC

maintains, or something of value. Under the former view, the action is a matter of

discretion insulated from constitutional scrutiny; under the latter, Mr. Chambers may have

a liberty interest in his earned time credits which cannot be arbitrarily taken away without

some procedural safeguards. More importantly, because the key to receiving the

“privilege” is acceptance of a highly stigmatizing label under the circumstances of this

case, we must subject the CDOC’s explanation to careful scrutiny.

       Nonetheless, the CDOC asks us to view this picture through a highly discretionary

lens and cast its determination outside the perimeter of judicial review. It would insulate

decisions about classification, placement, and earned time entirely from due process

protections.11 The CDOC asserts the Constitution is not “a micromanager of day-to-day



        (...continued)
       10

       following categories:
              ....
       (C) Participation in counseling sessions . . . .

        Each of the CDOC’s citations to authority for this proposition is slightly off the
       11

mark, however.

                                              -9-
prison activities, and a guarantee of prisoner preferences over those of prison officials,”

quoting Handy v. Price, 996 F.2d 1064, 1068 (10th Cir. 1993), in which an inmate

complained about CDOC’s treatment of his knee injury and hepatitis. Further, based on

Neal, the CDOC contends the classification without any coercive consequence does not

amount to the “stigma plus” the Court required in Sandin v. Conner, 515 U.S. 472, 479

n.4 (1995), to implicate a liberty interest. It insists Mr. Chambers, even without his

participation in the SOTP, will not be held beyond his sentence or denied his statutory

right to appear before the Parole Board on his parole eligibility date.

       We review the grant of summary judgment de novo, applying the same standard as

did the district court. McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.

1998). Summary judgment is then appropriate if, after reviewing all of the evidence

submitted in the light most favorable to the non-movant, no genuine issue of material fact

survives to merit a trial. UMLIC-Nine Corp. v. Lipan Springs Dev. Corp., 168 F.3d

1173, 1176 (10th Cir. 1999); Fed. R. Civ. P. 56(c).

       Mr. Chambers contends by reducing the number of earned time credits he receives,

his parole eligibility date is not advanced as rapidly as before. The consequence is

tantamount to lengthening the sentence he must serve. The SOTP, thus, increases his

punishment and violates the Ex Post Facto Clause of the Constitution, he argues.

       “[T]he constitutional prohibition on ex post facto laws applies only to penal

statutes which disadvantage the offender affected by them.” Collins v. Youngblood, 497


                                            - 10 -
U.S. 37, 41 (1990). To do so, the law must be retrospective, applying to events which

occurred before its enactment; and it must disadvantage the individual, by “altering the

definition of criminal conduct or increasing the punishment for the crime.” Fultz v.

Embry, 158 F.3d 1101, 1102 (10th Cir. 1998), quoting Lynce v. Mathis, 519 U.S. 433

(1997).

       Mr. Chambers can show no facts to support his ex post facto claim. Application of

the SOTP to him has not increased his punishment for he possesses no vested right in a

particular parole date or parole hearing eligibility date. In Mr. Chambers’ case, the SOTP

does not criminalize conduct that was legal before its passage. Further, in rehabilitative

matters, prison officials may consider any history established in the inmate’s record which

it may determine requires treatment. Thus, because application of the SOTP “did not

affect the legal consequences of [his] crime or increase his punishment,” there is no ex

post facto violation. Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998). We

therefore affirm the district court’s granting summary judgment.12

       “The Due Process Clause guarantees due process only when a person is to be

deprived of life, liberty, or property.” Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.

1994). Finding such a violation in the prison setting is particularly daunting. However,

although an inmate’s “rights may be diminished by the needs and exigencies of the



       We also affirm summarily the grant of summary judgment on the denial of Mr.
       12

Chambers’ equal protection claim, no factual allegations or supporting authority giving
any merit to this argument.

                                           - 11 -
institutional environment, a prisoner is not wholly stripped of constitutional protections

when he is imprisoned for crime. There is no iron curtain drawn between the Constitution

and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974).

       The Supreme Court has recognized a prisoner may be deprived of a liberty interest

based on a severe change in the conditions of confinement. “These 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.” Sandin, 515 U.S. at 483 (citations omitted). It

has also found a liberty interest may be implicated when State laws and prison regulations

grant inmates liberty interests to which due process protections apply. Meachum v.

Fano, 427 U.S. 215, 223-27 (1976). “In the first situation, the liberty interest exists apart

from the state; in the second, the liberty interest is created by the state.” Kirby v.

Siegelman, 195 F.3d 1285, 1291 (11th Cir. 1999).

       Under the circumstances here, although the CDOC has not created a liberty interest

in a prisoner’s not being classified a sex offender, it has through its administrative policy

applied the SOTP to Mr. Chambers in such a way as to permit him to continue to receive

the benefit of the maximum amount of earned time credit. That is, after five years of

being labeled a sex offender without Mr. Chambers’ admitting that status and with his

receiving ten days of earned time credits a month, the CDOC has removed the “benefit” it


                                             - 12 -
consistently awarded with the label. The removal of that benefit then implicates Mr.

Chambers’ liberty interest in not being labeled a sex offender. And, it is the label replete

with inchoate stigmatization – here based on bare allegations which are vigorously denied

and which have never been tested – which requires some procedural scrutiny.13 The

consequences of that label, then, are not a privilege as the CDOC insists, but something

of value entitled to procedural due process.

       Neal v. Shimoda, 131 F.3d at 818, provides some parallels for our analysis. The

Hawaii SOTP challenged in that case is virtually identical to the SOTP here except that

eligibility for parole is conditioned on participation in the program. Inmate Neal was

indicted for robbery, kidnapping, three counts of sexual assault in the first degree, as well

as other charges. He subsequently entered into a plea agreement in which the sex offense

charges were dismissed. Hawaii corrections officials reviewed the indictment and

presentence investigation report and classified Neal as a sex offender. Neal challenged

the SOTP under 42 U.S.C. § 1983 on ex post facto and due process grounds.14




        We would note the Colorado legislature, like many other state legislatures, is
       13

considering enacting a “Megan’s law,” requiring sex offenders to register with law
enforcement officials. The CDOC has already stated that for a period of time, Mr.
Chambers was incorrectly labeled an S-5, a convicted sex offender. Given the emotional
climate generated by the issue, the possibilities for mischaracterization and mischief are
always present when such a label is affixed.
       14
         The second plaintiff in that action was convicted of kidnapping and attempted
rape, a status which led the Ninth Circuit to find he had “received all of the process to
which he was due.” Neal v. Shimoda, 131 F.3d 818, 831 (9th Cir. 1997).

                                            - 13 -
        The Ninth Circuit concluded there was no ex post facto violation because the

“Supreme Court has held that such mandatory treatment programs following an inmate’s

classification as a sex offender based on conduct which occurred prior to the program’s

beginning do not violate the Ex Post Facto Clause.” Id. at 827, relying on Kansas v.

Hendricks, 521 U.S. 346 (1997). However, it held the stigmatizing consequences of the

sex offender label coupled with the mandatory treatment program as preconditions for

parole eligibility “create the kind of deprivations of liberty that require procedural

protections.” 131 F.3d at 831. The holding relied on Vitek v. Jones, 445 U.S. 480, 493

(1980) (Fourteenth Amendment’s Due Process Clause entitles a prisoner to certain

procedural protections before his involuntary transfer to a state mental hospital); and

Sandin, 515 U.S. at 472 (inmate’s discipline in segregated confinement does not present

the type of atypical, significant deprivation in which a state might create a liberty

interest).15

        To the Ninth Circuit, “the substantive predicate is the labeling of the targeted

inmate as a sex offender. Once that is done, it is mandatory that the labeled inmate

successfully complete the specified treatment program in order to become eligible for

parole.” 131 F.3d at 830 (italics in original). In Kirby v. Siegelman, 195 F.3d at 1291,




         The Ninth Circuit rejected the state’s suggestion Kentucky Dep’t of Corrections
        15

v. Thompson, 490 U.S. 454 (1989) (prison visitation regulations do not establish a liberty
interest), supplanted Vitek v. Jones, 445 U.S. 480 (1980), and believed its analysis was
supportable under both cases. 131 F. 3d at 829.

                                             - 14 -
the Eleventh Circuit also concluded an inmate who has not been convicted of a sex

offense has “a liberty interest in not being branded a sex offender.” Under the

circumstances here, too, it is the mandatory assignment of the label which forms the

substantive predicate. According to the CDOC’s stipulations, it has no discretion in

applying the label; however, it has whatever discretion it chooses in deciding what

conduct satisfies the consequences of the label.

       The CDOC thus provided Mr. Chambers a liberty interest in the consequences of

the mandatory label which it then arbitrarily removed without affording him any

opportunity to a hearing to challenge the label. We think those consequences are a

benefit which cannot be taken away without some process.16

       We therefore reverse the district court’s granting summary judgment and order

entry of summary judgment for Mr. Chambers on his claim for injunctive relief, enjoining

the CDOC from withholding earned time credit because he refuses to admit to being a sex

offender. Because the state of the law was not established when these actions were taken,

the prison officials named in this lawsuit are entitled to qualified immunity. Thus, Mr.

Chambers’ claim for damages cannot be sustained. Neal v. Shimoda, 131 F.3d at 832.



       16
         This conclusion is not contrary to Templeman v. Gunter, 16 F.3d 367 (10th Cir.
1994). In that case, CDOC officials had discretion to place the inmate in administrative
segregation based on a history of escapes, extreme violence, and other conduct. “Once
there, Templeman did not meet the criteria for receiving earned time.” Id. at 370. The
case does not stand for the broad proposition, as the CDOC offers, that a liberty interest
can never attach to earned time credits.

                                           - 15 -
AFFIRMED, in part and REVERSED, in part.




                             - 16 -
