Gwinn v. Awmiller

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 12 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

KEVIN CHARLES GWINN,

Plaintiff-Appellant,

v. No. 00-1485
JERRY AWMILLER; JACKIE
GIAMP; DONNA RANDOLPH;
JOHN DOE, LINDA FISHER, JANE
DOE; SHELLY J. MOORE; MERYL
DORHMAN; CHARLES OLIN;
MARGARET HEIL; DENNIS
KLEINSASSER; and JIM MICHAUD,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 99-WM-308)

Megan Curtiss and Stephen Cribari, University of Denver College of Law,
Denver, Colorado (Robert Foster, University of Denver College of Law, with her
on the briefs), for the Plaintiff-Appellant.

Joseph P. Sanchez, Assistant Attorney General, State of Colorado (Ken Salazar,
Attorney General of Colorado with him on the briefs), for the Defendants-
Appellees.
Before HENRY , McKAY , Circuit Judges, and OBERDORFER , District Judge. *

HENRY, Circuit Judge.

Kevin Charles Gwinn appeals the district court’s order granting summary

judgment against him and in favor of the defendant Colorado Department of

Corrections (CDOC) officials on his 42 U.S.C. § 1983 civil rights claim. Mr.

Gwinn asserted various claims arising out of his classification as a sexual

offender. In particular, Mr. Gwinn alleged that CDOC officials: (1) violated his

rights under the Due Process Clause of the Fourteenth Amendment by failing to

provide him with an adequate hearing before classifying him as a sex offender,

requiring him to register as a sex offender, and revoking his parole for failing to

participate in a treatment program for sex offenders; (2) violated his Fifth

Amendment rights by denying him the opportunity to earn good time credits at a

higher rate after he refused to participate in a treatment program for sexual

offenders; (3) violated the Ex Post Facto Clause by applying a Colorado statute

enacted after the alleged commission of the sexual offense; (4) violated the

Eighth Amendment by classifying him as a sex offender and requiring him to

*
The Honorable Louis F. Oberdorfer, United States District Judge for the
District of Columbia, sitting by designation.

-2-
register as one; (5) violated his First Amendment rights by refusing to allow him

to object to his classification as a sex offender; and (6) violated his rights under

the Equal Protection Clause of the Fourteenth Amendment by treating him

differently than other inmates convicted of similar offenses.

For the reasons set forth below, we conclude that as to Mr. Gwinn’s due

process challenge to his classification as a sex offender while incarcerated, the

district court properly granted summary judgment to the defendant CDOC

officials. However, we further conclude that the district court did not adequately

consider Mr. Gwinn’s due process claims insofar as they concern his

classification as a sex offender upon release from prison. Accordingly, as to that

claim we vacate the district court’s grant of summary judgment and remand the

case for further proceedings.

As to Mr. Gwinn’s Fifth Amendment, Ex Post Facto, Eighth Amendment,

First Amendment, and Equal Protection claims, we agree with the district court

that the defendants are entitled to summary judgment.

I. BACKGROUND

Viewed in the light most favorable to him, see Simms v. Okla. ex rel. Dep’t

of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir.

1999), the record indicates that in 1987, Mr. Gwinn was charged in Colorado state

-3-
court with robbery, aggravated robbery, and sexual assault. He pleaded guilty to

robbery, and the sexual assault charge was dismissed. The court sentenced him to

ten years’ imprisonment on the robbery charge.

In 1990, the CDOC informed Mr. Gwinn that, as a result of the sexual

assault charge, he would be required to complete a treatment program for sex

offenders. One of the requirements of the treatment program was that Mr. Gwinn

admit that he had committed the sexual assault charged in the 1987 case.

Initially, Mr. Gwinn stated that he had committed the assault. He then

completed the first phase of the treatment program. He began the second phase of

program, but CDOC officials removed him from the program because of two

violations of prison disciplinary rules.

In 1995, prison officials released Mr. Gwinn on parole. According to Mr.

Gwinn, his parole officer, the defendant Linda Fisher, informed him that he was

required to register with the Denver Police Department as a sex offender and

attend a community treatment program or he would be returned to prison for

violation of his parole. Mr. Gwinn alleges that he was denied employment when

background checks revealed that he had been classified as a sex offender.

Mr. Gwinn further alleges that in 1996, a Colorado court convicted him of

possession of a controlled substance and ordered him to participate in a drug

treatment program. According to Mr. Gwinn, he left the program after learning

-4-
that his classification as a sex offender made him ineligible to participate.

In 1998, Mr. Gwinn began serving a sentence for possession of a controlled

substance. He was released on parole in February 2000, and one of the conditions

of his parole was to participate in a treatment program for sex offenders. Mr.

Gwinn alleged that his parole was revoked several months later, in part because

he refused to participate in the treatment program.

On July 20, 2000, the Department of Corrections held an administrative

hearing to determine whether Mr. Gwinn, then in prison again, should be

classified as a sex offender. Mr. Gwinn chose not to attend the hearing, but he

submitted a written statement in support of his position that he should not be so

classified. The hearing panel reviewed Mr. Gwinn’s written statement and the

preinvestigation report from the 1987 conviction, which included the summary of

an interview with the victim of the alleged sexual assault. The panel determined

that classification of Mr. Gwinn as a sex offender was appropriate.

Mr. Gwinn filed this pro se civil rights action seeking an injunction

directing prison officials not to classify him as a sex offender, as well as

damages. The district court adopted the report and recommendation of the

magistrate judge and granted the defendants’ motion for summary judgment.

Although he initially proceeded pro se in this appeal, this court

subsequently appointed counsel for Mr. Gwinn. Appointed counsel has filed

-5-
supplemental briefs addressing the due process and Fifth Amendment claims.

On January 21, 2003, during the pendency of this appeal, Mr. Gwinn was released

from incarceration.

DISCUSSION

On appeal, Mr. Gwinn challenges the district court’s grant of summary

judgment as to all of his claims. We review the grant of summary judgment de

novo, applying the same standard as the district court pursuant to Rule 56(c) of

the Federal Rules of Civil Procedure. See United States v. AMR Corp., 335 F.3d

1109, 1113 (10th Cir.2003). Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). We view the record in the light most favorable to the nonmoving party.

See AMR Corp., 335 F.3d at 1113.

A. Due Process Claim

The Fourteenth Amendment provides that citizens may not be deprived of

life, liberty, or property without due process. See Chambers v. Colorado Dep’t of

Corr., 205 F.3d 1237, 1242 (10th Cir. 2000). Our prior decisions have

-6-
acknowledged that while “[f]inding . . . a [procedural due process] violation in

the prison setting is particularly daunting, id., “‘a prisoner is not wholly stripped

of constitutional protections when he is imprisoned for crime.’” Id. (quoting

Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974)); see also Wolff, 418 U.S. at

556 (stating that “[t]here is no iron curtain drawn between the Constitution and

the prisons of this country”).

Here, it is Mr. Gwinn’s liberty interests that are at issue: he alleges that the

defendants deprived him of those interests without affording him the procedural

protections required by the Due Process Clause. In particular, Mr. Gwinn argues

that during his incarceration, CDOC officials classified him as a sex offender

when he had not been convicted of a sexual offense and when he asserted that he

had not committed the sexual assault charged in the 1987 case. He further

contends that his parole officer, the defendant Linda Fisher, required him to

register as a sex offender when he had not been convicted of a sex offense, also

depriving him of a liberty interest without an adequate hearing and thereby

violating his procedural due process rights.

“‘Where a person’s good name, reputation, honor, or integrity is at stake

because of what the government is doing to him,’ a protectible liberty interest

may be implicated that requires procedural due process in the form of a hearing to

clear his name.” Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550,

-7-
1558 (10th Cir. 1993) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437

(1971)). Damage to one’s reputation alone, however, is not enough to implicate

due process protections. See Paul v. Davis, 424 U.S. 693, 701 (1976) (stating that

“reputation alone, apart from some more tangible interests such as employment, is

neither ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural

protection of the Due Process Clause”); McGhee v. Draper, 639 F.2d 639, 643

(10th Cir. 1981) (“[S]tigmatization or reputational damage alone, no matter how

egregious, is not sufficient to support a § 1983 cause of action.”).

Instead, a plaintiff asserting that the government has violated the Due

Process Clause by impugning his or her “good name, reputation, honor, or

integrity,” Jensen, 998 F.2d at 1558, must demonstrate that: (1) the government

made a statement about him or her that is sufficiently derogatory to injure his or

her reputation, that is capable of being proved false, and that he or she asserts is

false, and (2) the plaintiff experienced some governmentally imposed burden that

“significantly altered [his or] her status as a matter of state law.” Paul, 424 U.S.

at 710-11. This is sometimes described as the “stigma plus” standard. 2

Accordingly, Mr. Gwinn’s due process claims require us to apply that

2
See, e.g., Cannon v. City of West Palm Beach, 250 F.3d 1299, 1302 (11th
Cir. 2001); Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir. 1999); WMX
Techs., Inc. v. Miller, 197 F.3d 367, 376 (9th Cir. 1999); Greenwood v. New
York, 163 F.3d 119, 124 (2d Cir. 1998).

-8-
standard to his classification as a sex offender during his incarceration and to the

defendant Fisher’s allegedly requiring him to register as a sex offender while on

parole.

1. Classification as a Sex Offender During Incarceration

As we have noted, the CDOC has classified Mr. Gwinn as a sex offender

since 1990 and has required him to participate in treatment programs for sex

offenders. The CDOC based its classification upon the presentence report in a

criminal case filed in Colorado in 1987. In that earlier case, Mr. Gwinn was

initially charged with committing a first-degree sexual assault in September 1986,

but that charge was dropped as part of a plea agreement under which Mr. Gwinn

pleaded guilty to robbery. The presentence report in that case contains an account

of a sexual assault allegedly committed by Mr. Gwinn. See Rec. doc. 43, Attach.

(Defendants’ Motion for Summary Judgment, quoting presentence report).

According to the CDOC, Mr. Gwinn initially admitted that he had

committed the alleged 1986 sexual assault. See id. However, Mr. Gwinn now

denies that he committed the assault and alleges that the CDOC did not provide

him with a constitutionally adequate opportunity to rebut the account of the

alleged sexual assault set forth in the presentence report in the state court case.

As the magistrate judge acknowledged, this procedural due process claim is

-9-
governed by our decision in Chambers, 205 F.3d at 1242-44. There, some seven

years after the plaintiff inmate began serving his sentences for aggravated robbery

and attempted theft, CDOC officials directed him to participate in a treatment

program for sex offenders, even though he had “never admitted to or been

convicted of a sex offense.” Id. at 1240. Like Mr. Gwinn’s classification, the

classification of Mr. Chambers as a sex offender was based on a victim’s account

contained in a written report. See id. at 1238-39 (discussing the victim’s account

in a police report). As a result of the classification, the CDOC reduced the

monthly rate at which plaintiff accrued good time credits. See id. at 1239. Like

Mr. Gwinn, Mr. Chambers alleged that prison officials had violated his procedural

due process rights by relying on the report to classify him a sex offender without

first providing him with an opportunity to contest the report’s allegations.

We agreed with Mr. Chambers, noting that it was the loss of the previously

granted opportunity to earn good time credits at a higher level, combined with his

classification as a sex offender, that implicated a liberty interest.

Id. at 1242. Mr. Chambers had thus established that (1) CDOC officials had made

a statement about him or her that was sufficiently derogatory to injure his or her

reputation, that was capable of being proved false, and that he asserted was false,

and that (2) he had experienced some governmentally imposed burden that

“significantly altered [his or] her status as a matter of state law.” Paul, 424 U.S.

-10-
at 710-11.

Accordingly, we held that Mr. Chambers was entitled to an injunction

preventing the CDOC from withholding earned time credit because he refused to

admit to being a sex offender. Id. at 1243. However, “because the state of the

law was not clearly established when these actions were taken,” id., we further

concluded that the defendant CDOC officials were entitled to qualified immunity

from his claim for damages.

This court issued Chambers on March 7, 2000—after Mr. Gwinn filed this

lawsuit and while he was still incarcerated. Following publication of the

Chambers opinion, CDOC officials determined that they would provide Mr.

Gwinn with a hearing at which he could contest his classification as a sex

offender. In July 2000, CDOC officials served Mr. Gwinn with a notice

explaining that “as a result of a recent court decision [Chambers] [the C]DOC

will offer the opportunity for an Administrative Review to any offender who has

never been convicted of a sex offense . . . but has a history of sexual behavior that

may justify a sex offender designation.” Rec. doc 71 (Ex. A) (Notice of Right to

an Administrative Review, dated July 17, 2000). The notice proceeded to set

forth the section of the presentence report from the 1987 criminal case in which a

witness reported that Mr. Gwinn had sexually assaulted her. See id.

After receiving the notice, Mr. Gwinn submitted a written statement

-11-
indicating that he had not committed a sexual assault. Mr. Gwinn also declared

that due to a bipolar disorder, he did not wish to appear in person before the

hearing panel assigned to his case but instead would rely on his written statement.

A three-member CDOC Hearing Panel convened on July 20, 2000. One of

the members of the panel was Meryl Dorhman, a CDOC counselor whom Mr.

Gwinn had named as a defendant in this case. Each of the panel members signed

a declaration that they would not disclose any confidential information regarding

Mr. Gwinn’s medical records or his classification as a sex offender unless such

disclosure was ordered by a court. After considering the presentence report from

the 1987 case and Mr. Gwinn’s statement, the panel issued written findings that:

(1) Mr. Gwinn had “behaved in a sexually violent and abusive manner;” (2) his

behavior “could threaten the safety of the public upon release, or the safety of

prison staff” because he had “not offered any credible explanation that would

avoid the conclusion that [he had] behaved in a sexually violent and/or abusive

manner.” Id. at Ex. E (Decision on Sex Offender Designation, dated July 24,

2000).

Mr. Gwinn now argues that in spite of this opportunity for a hearing,

CDOC officials violated his due process rights. He contends that the defendant

prison officials applied an improper presumption–that he was a sex offender–and

required him to rebut it. He also argues that the defendants should have provided

-12-
him with an attorney. In support of that contention, he invokes his bipolar

disorder, which he states made it impossible for him to provide an effective

defense and adds that even though CDOC officials offered to provide him with an

inmate representative, this was not an adequate protection because inmates cannot

talk confidentially with other inmates about sex offenses. See Aplt’s Opening Pro

Se Br. at 19 (“It is taboo for an inmate accused of a sexual offense to speak to

other inmates about the offense.”). Finally, Mr. Gwinn argues that because the

chairman of the panel—Mr. Dorhman—is a defendant in this case, the Hearing

Panel was biased. See id. at 20.

Mr. Gwinn’s challenges are not expressly resolved by our opinion in

Chambers. There, because the plaintiff inmate received no hearing whatsoever,

we were not required to address the particular procedural protections that must be

provided to inmates who have never been convicted of a sex offense before prison

officials may classify them as sex offenders in a manner that deprives them of a

liberty interest.

However, in Chambers we relied on the Ninth Circuit’s decision in Neal v.

Shimoda, 131 F.3d 818 (9th Cir. 1997). There, the court held that an inmate who

has not previously been convicted of a sex offense may be classified as a sex

offender for purposes of a prison treatment program only if the prison affords him

the procedural protections to which prisoners facing disciplinary sanctions

-13-
involving liberty interests are generally entitled. See id. at 830-31. Here, because

there is no dispute that Mr. Gwinn’s classification as a sex offender reduced the

rate at which he could earn good time credits and implicated a liberty interest, we

conclude that Mr. Gwinn, like the plaintiff in Chambers, was entitled to those

same procedural protections.

Those procedural requirements are set forth in the Supreme Court’s

decision in Wolff, 418 U.S. 539: notice of the charges, an opportunity to present

witnesses and evidence in defense of those charges, and a written statement by the

factfinder of the evidence relied on and the reasons for the disciplinary action.

See Neal, 131 F.3d at 830 (adopting these requirements for a hearing regarding

the classification of an inmate as a sexual offender); Mitchell v. Maynard, 80 F.3d

1433, 1445 (10th Cir. 1996) (discussing the requirements for prison disciplinary

hearings under Wolff). Additionally, in order to comport with due process, there

must be some evidence to support the hearing panel’s decision id., and the

decisionmaker must be impartial. See Wolff, 418 U.S. at 592 (Marshall, J.,

concurring) (stating that “an impartial decisionmaker is a fundamental

requirement of due process” that is “fully applicable” to disciplinary hearings for

prisoners); Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990) (recognizing

due process requirement of factfinder’s neutrality in prison disciplinary context

and citing Wolff)).

-14-
 In light of the Wolff requirements, we conclude that Mr. Gwinn’s argument

that the Hearing Panel applied an improper presumption lacks merit. As we have

noted, the record indicates that the Hearing Panel relied on a detailed written

account from the victim of the alleged sexual assault and that Mr. Gwinn himself

presented no more than a general written denial of the allegations. The Supreme

Court has observed that, in ascertaining whether a factfinder’s decision in a

prison disciplinary hearing is sufficiently supported by the evidence, a reviewing

court need not undertake an “examination of the entire record, independent

assessment of witnesses’ credibility or weighing of the evidence. Instead, the

relevant conclusion is whether there is any evidence that could support the

conclusion reached by the disciplinary board.” Superintendent, Mass. Corr. Inst.

v. Hill, 472 U.S. 445, 455-56 (1985). Moreover, the decision can be upheld even

if the evidence supporting the decision is “meager.” Id. at 457. In light of the

statement in the presentence report that Mr. Gwinn committed a sexual assault,

we conclude that the Hearing Panel did not violate his due process rights by

applying an improper presumption. 3

3
We emphasize that the Hearing Panel’s conclusion that Mr. Gwinn “has
behaved in a sexually violent and abusive manner,” Rec. doc 71, Ex. E, will have
no preclusive effect in subsequent proceedings outside the prison context
involving different procedural and evidentiary standards. See Colon v. Coughlin,
58 F.3d 865, 869 (2d Cir. 1995) (noting that given the procedural laxity involved,
“[w]e think there is a substantial question as to whether, under New York law,
collateral estoppel should ever apply to fact issues determined in a prison
(continued...)

-15-
 Similarly, the fact that CDOC officials did not provide Mr. Gwinn with an

attorney for the hearing did not violate his due process rights. Because prisoners

do not “have a right to either retained or appointed counsel in disciplinary

hearings,” Wolff, 418 U.S. at 570, Mr. Gwinn was not entitled to an attorney

here. See also Wallace v. Tilley, 41 F.3d 296, 301 (7th Cir. 1994) (observing that

a prisoner “had no right to have counsel present at the disciplinary hearings”).

More troubling is Mr. Gwinn’s allegation that he did not receive an

impartial hearing because the defendant Mr. Dorhman was a member of the

Hearing Panel. An impartial decisionmaker is a fundamental requirement of due

process that is “fully applicable” in the prison context. Wolff, 418 U.S. at 592

(Marshall, J., concurring); see also Malek v. Camp, 822 F.2d 812, 815-17 (8th

Cir. 1987) (reversing district court’s dismissal of prisoner’s claim that the

personal bias of the chairman of a disciplinary tribunal violated his due process

rights when the chairman was involved in a separate proceeding as a nominal

3
(...continued)
disciplinary hearing”); Johnson v. Freeburn, 144 F.Supp.2d 817, 823-24 (E.D.
Mich. 2001) (holding that prison disciplinary hearings are not afforded preclusive
effect and observing that “defendants in criminal cases are cloaked with
substantial procedural protections--including a prohibition on the use of hearsay
statements by confidential informants--most of which are not applicable in a
prison disciplinary proceeding”); see generally Matosantos Commercial Corp. v.
Applebee’s Int’l., Inc., 245 F.3d 1203, 1212 (10th Cir. 2001) (noting that
“[c]ollateral estoppel is also not appropriate when a party in a subsequent suit
faces a less demanding burden of proof than the burden of proof in the prior
litigation”).

-16-
defendant). That Mr. Dorhman was named as a defendant in this case prior to his

appointment to the Hearing Panel charged with the responsibility of determining

whether Mr. Gwinn should be classified as a sex offender raises at least the

possibility that the Hearing Panel was not fair and impartial. See generally Wolff,

418 U.S. at 592 (Marshall, J., concurring) (“Due process is satisfied as long as no

member of the disciplinary board has become involved in the investigation or

presentation of the particular case or has any other form of personal involvement

in the case.”); Hicks v. City of Watonga, 942 F.2d 737, 748 (10th Cir. 1991)

(concluding that the plaintiff could establish a due process claim by showing bias

on the part of only one member of the tribunal but further concluding that only

the allegedly biased member could be held liable for damages in a 42 U.S.C. §

1983 action).

Nevertheless, “because honesty and integrity are presumed on the part of a

tribunal, there must be some substantial countervailing reason to conclude that a

decisionmaker is actually biased with respect to factual issues being adjudicated.”

Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 518 (10th Cir. 1998) (internal

quotation marks omitted). “‘The mere exposure to evidence presented in

nonadversary investigative procedures is insufficient in itself to impugn the

fairness’ of a later adversary hearing.” Mangels v. Pena, 789 F.2d 836, 838 (10th

Cir. 1986) (quoting Withrow v. Larkin, 421 U.S. 35, 55 (1975)). Instead, “[d] ue

-17-
process is violated only when ‘the risk of unfairness is intolerably high’ under the

circumstances of a particular case.” Id. (quoting Withrow, 421 U.S. at 58).

Accordingly, allegations of bias such as those directed against Mr.

Dorhman by Mr. Gwinn shoud be decided on a case-by-case basis. See Redding

v. Fairman, 717 F.2d 1105, 1112-13 (7th Cir. 1983) (rejecting categorical rule

that “disciplinary committee members ‘at least should not be defendants in

pending lawsuits for damages instituted by the very persons over whom the

committee sits in judgment’” and holding that the district court should “evaluate

the circumstances involved in the lawsuits and determine whether disqualification

is required,” considering among other factors “the extent of the Committee

members’ personal involvement in [the] lawsuits”) (quoting district court’s

ruling); see also Malek v. Camp, 822 F.2d 812, 815-17 (8th Cir. 1987) (adopting

case-by-case approach to allegations of bias based on decisionmaker’s being a

defendant lawsuits filed by the prisoner).

Moreover, as the Eighth Circuit has noted, “the courts should be alert not to

sustain routine or pro forma claims of disqualification.” Malek, 822 F.2d at 817.

Careful scrutiny of disqualification claims is grounded in legitimate

considerations of prison administration. “From a practical standpoint, requiring

each staff member who is the subject of a separate lawsuit to disqualify himself

from sitting in judgment of that inmate would heavily tax the working capacity of

-18-
the prison staff.” Redding, 717 F.2d at 1113. Because prisoners may file

lawsuits naming multiple prison officials defendants, a per se disqualification rule

could “vest too much control in a prisoner to determine the [hearing panel’s]

make-up.” Id.

Here, adopting this case-by-case approach, our review of the record

indicates that the magistrate judge properly considered the particular

circumstances regarding Mr. Dorhman’s involvement in this lawsuit and his

participation in the July 20, 2000 hearing and properly concluded that Mr. Gwinn

had not presented sufficient evidence of bias to withstand summary judgment.

Mr. Gwinn’s complaint alleges that Mr. Dorhman was a mental health therapist at

the Fremont Correctional Facility and that, in 1998, Mr. Dorhman looked at Mr.

Gwinn’s file, was aware that Mr. Gwinn had never been convicted of a sexual

offense, and “told [Mr. Gwinn] he was a sex offender.” Rec. doc. 3, at 5

(Complaint, filed Feb. 17, 1999). That alleged statement, however, is

undisputedly true in an important sense: at that time, Mr. Gwinn had already been

classified as a sex offender by CDOC officials and had been required to

participate in treatment programs. CDOC records indicated that at one point, Mr.

Gwinn had even admitted to committing a sexual assault, though he later retracted

that admission. Standing alone, the fact that Mr. Dohrman may have told Mr.

Gwinn that he was a sex offender in 1998, does not indicate that he was incapable

-19-
of fairly weighing the evidence presented at the July 2000 hearing and

determining whether Mr. Gwinn had actually committed the alleged assault. See

Mangels, 789 F.2d at 837 (observing that an administrative adjudicator’s mere

exposure to evidence presented in nonadversary investigative procedures is

insufficient” to establish bias).

Moreover, as the magistrate judge observed, there is evidence that Mr.

Dorhman took additional measures to protect Mr. Gwinn’s due process rights.

After learning of Mr. Gwinn’s assertion that his bi-polar disorder would not allow

him to contest the evidence against him in person, he advised Mr. Gwinn that he

would be allowed to choose an inmate representative. See Rec. doc. 71, Ex. D.

In summary, we discern no error in the district court’s grant of summary

judgment to the defendant CDOC officials on Mr. Gwinn’s procedural due

process claim arising out of his classification as a sex offender at the July 20,

2000 hearing. Mr. Gwinn was afforded notice of the evidence against him and an

opportunity to present evidence in his own behalf, and he received a written

decision from the Hearing Committee. Because his assertions of bias are not

supported by the record, Mr. Gwinn received the procedural protections required

by the Due Process Clause.

-20-
2. Registration as a Sex Offender upon Release from Prison

Mr. Gwinn also challenges his classification as a sexual offender outside

the prison walls. He alleges that “[i]n 1995, [he] was forced to register with the

Denver Police Department as a sex offender as a condition of parole, though his

conviction . . . was for simple robbery.” Rec. doc. 47, at 3 (Response to

Defendants’ Mot. for Summ. J., filed Jan. 14, 2000). He adds that upon his

release from any subsequent incarceration, he will be “forced to live in society

labeled and stigmatized as a sex offender though he has never been convicted in a

court of law for any sexual offenses,” id. at 3-4, and that he has been denied

employment and admission into substance abuse programs because of the

registration requirements, Rec. doc. 3, claim I, section D (Complaint, filed Feb,

17, 1999). Mr. Gwinn named his former parole officer as a defendant on this due

process claim but did not name the Parole Board or any of its members.

The magistrate judge concluded that this due process claim was foreclosed

by Chambers:

Under Chambers, plaintiff does not have a liberty interest
in not being classified by the Parole Board as a sex
offender, absent the denial of something of value to him by
the State as a result of that classification. Here, plaintiff
alleges that because of the Parole Board’s classification of
him as a sex offender, he was required to register as a sex
offender with community law enforcement agencies, and
as a result, potential employers refused to hire him.
Plaintiff has not demonstrated that he was denied
something of value by the State as a result of the sex

-21-
 offender classification. Thus, defendant Fisher’s actions
in enforcing that condition of his parole did not deprive
plaintiff of a constitutionally-protected liberty interest.

Rec. doc. 77, at 20 (Report and Recommendation, filed Sept. 6, 2000).

In our view, the magistrate judge misread Chambers and characterized Mr.

Gwinn’s liberty interest too narrowly. Chambers concerns the classification of an

inmate inside the prison walls. See Chambers, 205 F.3d at 1242 (noting that

“[f]inding [a due process] violation in the prison setting is particularly

daunting”). The case does not address the standards for determining whether a

liberty interest is implicated when an inmate who has not been convicted of a sex

offense is classified as a sex offender when he is released from prison.

Chambers also does not address the particular procedural protections to which a

former inmate may be entitled before he is so classified. As the Supreme Court

has noted, the procedural requirements for hearings conducted inside a prison are

often quite different than those conducted elsewhere. See Wolff, 418 U.S. at 560

(“[I]t is immediately apparent that one cannot automatically apply procedural

rules designed for free citizens in an open society, or for parolees or probationers

under only limited restraints, to the very different situation presented by a

disciplinary proceeding in a state prison.”).

Although Chambers does not address the circumstances presented by Mr.

Gwinn’s outside-the-prison walls due process claim, several other decisions are

-22-
pertinent. In United States v. Bartsma, 198 F.3d 1191, 1199-1200 (10th Cir.

1999), we reviewed a defendant’s challenge to the district court’s imposition of a

special condition of supervised release requiring the defendant to register as a sex

offender in any state in which he resided after his release from prison. In the case

at hand, the defendant had been convicted only for possession of a firearm after

conviction of a felony, but he had previously been convicted of rape and child

molestation. We held that the defendant was entitled to “reasonable presentence

notice . . . that a special condition of supervised release requiring him to register

as a sex offender was a possibility.” Id. at 1200.

In support of that holding, we reasoned that “[t]he special condition here

implicated a liberty interest, and there was a lack of any obvious nexus between

the condition and the crime of conviction. Fundamental fairness requires

notice–either actual or constructive–under these circumstances.” Id. at n.7

(emphasis added). Significantly, we did not suggest that the defendant was

required to show that the government had deprived him of employment

opportunities or anything else of value in order for a liberty interest to be

implicated. The registration requirement was sufficient in itself to implicate such

an interest.

This conclusion is supported by decisions of other courts. In Doe v.

Department of Public Safety, 271 F.3d 38, 47-59 (2d Cir. 2001), rev’d on other

-23-
grounds, 538 U.S. 1 (2003), the Second Circuit held that the stigma of being

listed on a sex offender registry that contained false information, combined with

the “extensive and onerous” registration duties imposed by Connecticut’s sex

offender statute were sufficient to implicate a liberty interest. 4 See also Smith v.

Doe, 123 S. Ct. 1140, 1157 (Stevens, J., concurring) (“The registration and

reporting duties imposed on convicted sex offenders are comparable to the duties

imposed on other convicted criminals during periods of supervised release or

parole. And there can be no doubt that the widespread public access to this

personal and constantly updated information has a severe stigmatizing effect. In

4
In support of its conclusion that the alleged injury arising out of the
listing on the sexual offender registry was distinguishable from injuries protected
by state defamation law, the Second Circuit reasoned:

The imposition on a person of a new set of legal duties that, if
disregarded, subject him or her to felony prosecution, constitutes a
change of that person’s status under state law. Such action is
quintessentially governmental in nature. Moreover, the presence of
such an alteration of the registrant’s legal rights and duties serves the
federalism-based function of the plus factor: to ensure that the plaintiff
cannot convert a state-law defamation claim into a § 1983 action
because of the mere fortuity that he or she is suing a state defendant.
The injury that the plaintiff alleges in this case-stigma plus an alteration
in his or her state-law duties and status-could not have been inflicted by
a private person in a position analogous to that of the state. Only a
defendant employing his or her power as a state official could impose
and enforce the duties inherent in Connecticut’s sexual offender registry
law and then publish the information obtained by those state-imposed
duties.

Doe, 271 F.3d at 57 (citations and internal quotation marks omitted).

-24-
my judgment, these statutes unquestionably affect a constitutionally protected

interest in liberty.”) (internal quotation marks and citations omitted). Similarly,

in Fullmer v. Michigan Dep’t of State Police, 207 F. Supp. 2d 650, 659-661 (E.D.

Mich. 2002), the court concluded that the stigma of being falsely labeled on the

state’s sexual offender registry, combined with the “obligations of registration

and the attendant penalties for non-compliance” were sufficient to implicate a

liberty interest. But cf. Cutshall v. Sundquist, 193 F.3d 466, 479-82 (6th Cir.

1999) (holding that the Tennessee sex offender registration statute “does not

implicate a constitutionally protected liberty or property interest in employment”);

Russell v. Gregoire, 124 F.3d 1079, 1083 (9th Cir. 1997) (rejecting a claim that

the Washington sex offender registration statute implicated a liberty interest). 5

In light of our holding in Bartsma and these other decisions adopting a

similar approach, we conclude that Mr. Gwinn has sufficiently alleged that his

classification as a sex offender outside the prison walls implicated a liberty

interest. In particular, Mr. Gwinn has alleged that (1) the government made a

false statement about him-that he was a sexual offender-that was sufficiently

5
However, as the Second Circuit noted in Doe, “these courts have not
necessarily disagreed with the contention that the ongoing legal obligations of sex
offender registrants constitute a “plus” factor [sufficient to implicate a liberty
interest]. Neither the Sixth Circuit in Cutshall nor the Ninth Circuit in Russell
was presented with such an argument. Instead, the plaintiff in each of those cases
claimed that the “plus factor consisted of the state’s intrusion on his or her right
to privacy.” Doe, 271 F.3d at 58 (explaining Cutshall and Russell).

-25-
derogatory to injure his reputation, and that (2) he experienced a governmentally

imposed burden that “significantly altered [his] . . . status as a matter of state

law,” in that he was required to register as a sex offender. See Paul, 424 U.S. at

710-11. 6 These allegations are sufficient to meet the applicable “stigma-plus”

standard.

Unfortunately, the record before us is insufficient to evaluate these

allegations. In particular, aside from the allegations of Mr. Gwinn’s complaint,

the record contains no information as to whether Mr. Gwinn was required to

register as a sexual offender, what provisions of Colorado law were invoked as

justification for such registration, and which of the named defendants, if any,

were responsible for this registration. 7 Moreover, there is no information

6
The Supreme Court’s recent decision in Connecticut Dept. of Public
Safety v. Doe, 538 U.S. 1 (2003) does not foreclose this due process claim.
There, the Court held the Connecticut sex offender registration statute did not
violate the procedural due process rights of individuals who had already been
convicted of sexual offenses because “the law’s requirements turn on an
offender’s conviction alone—a fact that a convicted offender has already had a
procedurally safeguarded opportunity to contest.” Id. at 9 (emphasis added).
Here, Mr. Gwinn alleges that he had no such opportunity to challenge his
classification as a sex offender upon his release from incarceration.
7
Colorado has enacted statutes requiring the registration and treatment of
sex offenders. See People v. Stead, 66 P.3d 117 (Colo. Ct. App. 2002)
(discussing registration provisions); People v. Apodaca, 58 P.3d 1126 (Colo. Ct.
App. 2002) (discussing treatment provisions). These statutes have been amended
on several occasions, and it is not clear which of them, if any have been applied
by the defendants to Mr. Gwinn. We leave that determination for the district court
on remand.

-26-
regarding what procedural protections, if any, were afforded to Mr. Gwinn before

he was required to register as a sexual offender. As the magistrate judge noted,

the defendants did not address these matters in their motion for summary

judgment, and Mr. Gwinn himself has not provided evidence sufficient to resolve

these allegations. Accordingly, we conclude that the district court’s grant of

summary judgment on Mr. Gwinn’s due process claim regarding his classification

as a sexual offender outside the prison walls must be vacated and remanded for

further proceedings.

On remand, the district court should determine: (1) whether Mr. Gwinn was

required to register as a sexual offender upon his release from prison; (2) if Mr.

Gwinn was required to register, what provisions of Colorado law were invoked to

justify the registration; (3) what specific obligations any such registration

imposed upon Mr. Gwinn. The district court should then determine which of these

defendants, if any, were responsible for this registration.

If any of the defendants were so responsible, the district court should then

determine whether the registration requirements, if any, were sufficient to

“significantly alter[] [his] status as a matter of state law,” see Paul, 424 U.S. at

710-11, such that they implicated a liberty interest. If such a liberty interest was

implicated, the district court should then determine whether Mr. Gwinn was

afforded the procedural protections required by the Due Process Clause in these

-27-
circumstances. 8

B. Fifth Amendment Compulsion Claim

Mr. Gwinn contends that CDOC officials violated his Fifth Amendment

rights by punishing him for refusing to comply with one of the requirements of

the treatment program for sex offenders—that he admit that he committed a sex

offense. He contends that because he refused to participate in the treatment

program, he was ineligible to earn good time credits at the higher rate available to

participating prisoners. The denial of this benefit, Mr. Gwinn maintains,

constituted impermissible compulsion of incriminating testimony.

Mr. Gwinn’s argument is controlled by the Supreme Court’s decision in

McKune v. Lile, 536 U.S. 24 (2002), and this circuit’s subsequent interpretation

of that decision in Searcy v. Simmons, 299 F.3d 1220 (10th Cir. 2002). In

McKune, a divided Supreme Court reversed a decision of this court applying the

Fifth Amendment’s bar on compelling incriminating testimony. This court had

concluded that a Kansas policy restricting an inmate’s privileges and transferring

him to a maximum security prison after he refused to disclose his sexual history

8
We leave for the district court the determination, if necessary to the
disposition of Mr. Gwinn’s case, of what process is due to a person who has been
released from prison and has never been convicted of a sex offense before that
person may be properly required to register as a sex offender. As noted above,
that question is not resolved by our decision in Chambers.

-28-
(as required by a sex offender treatment program) constituted impermissible

compulsion. See McKune v Lile, 224 F.3d 1175 (10th Cir. 2000). Four justices

concluded that the standard set forth in Sandin v. Conner, 515 U.S. 472 (1995),

should control in determining whether the imposition of these consequences

constituted impermissible compulsion: if the consequences constituted “atypical

and significant hardship[s] on [inmates] in relation to the ordinary incidents of

prison life” then the program would violate the Fifth Amendment. McKune, 536

U.S. at 25 (citing Sandin, 515 U.S. at 484).

Applying that Sandin standard to the facts before it, the plurality concluded

that the penalties imposed against the prisoner were significantly less than

potential penalties other inmates faced in cases where the Supreme Court ruled

that there was no Fifth Amendment violation. See McKune, 536 U.S. at 41-45.

Accordingly, the plurality concluded that the Kansas program did not violate the

plaintiff prisoner’s Fifth Amendment right against self-incrimination. McKune,

536 U.S. at 48.

Because she disagreed with the plurality’s application of Sandin’s “atypical

and significant hardship” standard, Justice O’Connor did not join in the plurality

opinion in McKune. However, she did agree that the consequences of the

plaintiff prisoner’s refusal to incriminate himself were not “so great as to

constitute compulsion for the purposes of the Fifth Amendment privilege against

-29-
self-incrimination.” Id. at 49 (O’Connor, J., concurring). Thus, she concurred in

the judgment.

As we noted in Searcy, “[b]ecause Justice O’Connor based her conclusion

on the narrower ground that the [Department of Corrections’] policy was not

compulsion under the Fifth Amendment, we view her concurrence as the holding

of the Court in McKune.” 299 F.3d at 1225; see Marks v. United States, 430 U.S.

188, 193 (1977) (stating that the holding of a fragmented Court “may be viewed

as that position taken by those Members who concurred in the judgments on the

narrowest grounds”). Accordingly, the question we must resolve is whether,

under the standard applied by Justice O’Connor in her concurring opinion,

consequences of Mr. Gwinn’s refusal to participate in the treatment program for

sexual offenders were “so great as to constitute compulsion,” McKune, 536 U .S.

at 49 (O’Connor, J., concurring), for purposes of the Fifth Amendment privilege

against self-incrimination.

In this regard, we note that Mr. Gwinn’s refusal to participate in the

treatment program did result in an additional consequence not suffered by the

plaintiff prisoner in McKune: the loss of opportunity to accrue good time credits

at an increased rate. Thus, we must determine whether this additional adverse

consequences is “serious enough to compel Mr. Gwinn to be a witness against

himself.” 536 U.S. at 50 (O’Connor, J., concurring).

-30-
 This circuit’s opinion in Searcy resolves that issue. There, we held that the

withholding of good time credits to a Kansas prisoner who refused to participate

in a treatment program did not constitute compulsion. We reasoned that the

award of good time credits under the Kansas regulation was discretionary and

that, as a result, “foreclosing [the plaintiff] from the mere opportunity to earn

good time credits is not a new penalty but only the withholding of a benefit that

the [Kansas Department of Corrections] is under no obligation to give.” 299 F.3d

at 1226. Thus, the plaintiff prisoner “was left with a choice: take advantage of a

benefit that the [Department of Corrections] provided or turn down that benefit in

order to avoid providing what he feared, perhaps legitimately, would be self-

incriminating statements.” Id. Such a choice did not constitute compulsion.

Searcy is applicable here. Like the Kansas Department of Corrections, the

CDOC retains discretion in awarding good time credits. See Col. Rev. Stat. §

17-22.5-405(1) (stating that “[e]arned time, not to exceed ten days for each month

of incarceration or parole, may be deducted from the inmate’s sentence”)

(emphasis added); Duncan v. Gunter, 15 F.3d 989, 992 (10th Cir. 1994) (noting

the discretionary language in the Colorado good time credit statute). Under

Colorado law, parole decisions are similarly discretionary. See Thiret v. Kautzky,

792 P.2d 801, 805 (Colo. 1990). Thus, Mr. Gwinn, like Mr. Searcy, was faced

with a choice between the opportunity to earn credits at the higher rate and retain

-31-
favorable parole status or declining that opportunity by refusing to participate in

the treatment program and thereby avoiding the requirement that he admit to

committing a sex offense. Accordingly, the pressure imposed upon Mr. Gwinn

did not rise to a level where it is likely to compel a person to be a witness against

himself. See Searcy, 299 F.3d 1227 (applying McKune, 536 U.S. at 49)

(O’Connor, J., concurring).

To be sure, as Mr. Gwinn further observes, there is another difference

between McKune and Searcy and the instant case: both of the defendants in those

cases were convicted of sexual offenses while Mr. Gwinn was not. Mr. Gwinn

contends that this fact establishes that the CDOC impermissibly sought to compel

incriminating testimony.

We disagree with Mr. Gwinn’s reading of those cases. Under Justice

O’Connor’s opinion in McKune and our decision in Searcy, the Fifth Amendment

compulsion analysis focuses on the consequences imposed upon the inmate who

refuses to participate in the sexual offender treatment program. See McKune, 536

U.S. at 49-50 (O’Connor, J., concurring) (noting that the court must ask “whether

the pressure imposed in such situations rises to a level where it is likely to compel

a person to be a witness against himself” and concluding that “I do not believe

the consequences facing respondent in this case are serious enough to compel him

to be a witness against himself”) (internal quotation marks and alterations

-32-
omitted); Searcy, 299 F.3d at 1227 (examining the level of pressure imposed upon

a prisoner who refused to admit that he was a sexual offender). Here, despite the

fact that Mr. Gwinn has not been convicted of a sexual offense, the consequences

of his failure to admit that he committed an assault are similar to the

consequences imposed upon the prisoner in Searcy. Thus, although Mr. Gwinn’s

lack of a prior conviction for a sexual offense may be relevant to other

constitutional claims–such as the due process claims we have discussed above–

that fact does not affect the analysis of the Fifth Amendment compulsion claim.

Accordingly, we conclude that the district court properly granted summary

judgment to the defendant CDOC officials on Mr. Gwinn’s Fifth Amendment

compulsion claim. 9

9
In supplemental briefing filed by his appellate counsel, Mr. Gwinn also
contends that CDOC officials informed him that he was required to admit to the
commission of a sex offense in order to receive “favorable parole board status.”
Aplt’s Supp. Br., filed July 23, 2001, at 14. Mr. Gwinn then cites the Colorado
Lifetime Supervision Act, Col. Rev. Stat. § 18-1.3-1001, et seq., and states that
under that statute, sex offenders “must participate and progress” in [the CDOC’s
treatment program] in order to be considered a candidate for parole.” Id. at 14
n.7.
Whether requiring a prisoner to admit to an offense in order to be
eligible for parole constitutes compulsion in violation of the Fifth Amendment is
a question not resolved by the Supreme Court’s decision in McKune or our
decision in Searcy. However, upon review of the record, we conclude that Mr.
Gwinn did not raise this issue in the district court proceedings, and that, as a
result, we need not address it here.
Mr. Gwinn did allege that CDOC officials told him that he must admit to
committing a sex offense in order to receive “favorable parole board reports.”
Rec. doc. 1, section C, at 1 (Complaint filed Feb. 17, 1999). He also asserted
(continued...)

-33-
C. Ex Post Facto, Eighth Amendment, First Amendment, and Equal Protection
Claims

Mr. Gwinn’s remaining claims do not require extended discussion. He

argues that the CDOC officials violated the Ex Post Facto Clause, because, in

requiring him to participate in a treatment program for sexual offenders, these

officials applied a law regarding the treatment of sexual offenders, Col. Rev. Stat.

§ 16-11.7-101 et seq., enacted in 1992—after the date on which Mr. Gwinn

committed the alleged sexual assault. In Chambers, we rejected this very

challenge. See 205 F.3d at 1242 (noting that “in rehabilitative matters, prison

officials may consider any history established in the inmate’s record which it may

determine requires treatment” and that “because application of the [Sexual

Offender Treatment Program] did not affect the legal consequences of [the

9
(...continued)
that CDOC officials wrote “unfavorable parole board reports” based on the
alleged sexual assault of which he was not convicted. Id. at 5. However, he did
not contend that prison officials applied the Lifetime Supervision Act to him or
that his refusal to participate in the treatment program rendered him completely
ineligible for parole.
To the extent that Mr. Gwinn merely alleges that his refusal to admit to the
alleged sexual assault was considered as an unfavorable factor in reports to the
parole board, we agree with the CDOC that such unfavorable reports do not
constitute impermissible compulsion under McKune. Cf. Ainsworth v. Stanley,
317 F.3d 1, 6 (1st Cir. 2002) (“conclud[ing] that the reduced likelihood of parole
for refusing to participate in [a prison treatment program for sexual offenders]
does not constitute a penalty sufficient to compel incriminating speech in
violation of the Fifth Amendment”).

-34-
plaintiff prisoner’s] crime or increase his punishment, there is no ex post facto

violation”) (internal quotation marks omitted). Thus, the district court properly

granted summary judgment to the defendant CDOC officials on Mr. Gwinn’s ex

post facto claim. 10

Mr. Gwinn’s Eighth Amendment claim–that the denial of good time credits

and other privileges as a result of his failure to admit that he had committed a

sexual assault–is also not supported by the applicable law. “[T]he Eighth

Amendment prohibits punishments which, although not physically barbarous,

involve the unnecessary and wanton infliction of pain . . . . But conditions that

cannot be said to be cruel and unusual under contemporary standards are not

unconstitutional.” Rhodes v. Chapman, 452 U.S. 337, 346-47, (quotation

omitted). The conditions alleged by Mr. Gwinn do not rise to that level.

Mr. Gwinn’s First Amendment claim is based upon CDOC officials alleged

denial of grievances regarding his classification as a sex offender. According to

Mr. Gwinn, in denying the grievances, CDOC officials told him that the

classification was not grievable. Rec. doc. 3, at 3 (Complaint filed Feb. 17,

10
To the extent that Mr. Gwinn’s ex post facto claim concerns the
application of Colorado’s sexual offender registration statutes upon Mr. Gwinn’s
release from prison, we do not consider it here. As noted above, the record is
insufficient to determine whether Mr. Gwinn was required to register as a sexual
offender outside the prison walls, and, if so, which provisions of Colorado law
were applied to him. However, we do note that the Supreme Court and this court
have rejected ex post facto challenges to such registration laws. See Smith v.
Doe, 539 U.S. 84 (2003); Femedeer v. Haun, 227 F.3d 1244 (10th Cir. 2000).

-35-
1999). Standing alone, the allegation that CDOC officials denied Mr. Gwinn’s

grievances is insufficient to allege the violation of his First Amendment rights.

Cf. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.1990) (noting that because a

prisoner must ordinarily first file a grievance in order to ultimately gain access to

courts, punishing him for actually filing grievances may state a First Amendment

claim). Here, there is no indication that CDOC officials retaliated against him for

filing the grievances. Moreover, CDOC officials did eventually provide Mr.

Gwinn with an opportunity to challenge the classification at the July 20, 2000,

hearing. As we observed in Chambers, until we issued that opinion, the right to

contest such a classification was not clearly established. See 205 F.3d at 1244.

Accordingly, the district court properly rejected Mr. Gwinn’s First Amendment

claim as well.

Finally, Mr. Gwinn argues that CDOC officials violated his Fourteenth

Amendment equal protection rights because he was treated differently than other

defendants convicted of robbery in that he was required to submit to a treatment

program for sex offenders or lose his good time credits. As the district court

noted, absent an allegation of a suspect classification, our review of prison

officials’ differing treatment of various inmates is quite deferential: in order to

withstand an equal protection challenge, those classifications must be reasonably

related to a legitimate penological purpose. See Templeman v. Gunter, 16 F.3d

-36-
367, 371 (10th Cir. 1994). Here, prison officials found that Mr. Gwinn, unlike

other robbery defendants, had committed a sexual assault. Thus the requirement

that he participate in a treatment program had a rational relationship to

rehabilitative objectives. See id. (“Not only might the [Department of

Corrections] classify inmates differently because of slight differences in their

histories, but they also might classify inmates differently because some still seem

to present more risk of future misconduct than others.”); Martinez v. Flowers,

164 F.3d 1257, 1261 (10th Cir. 1998) (upholding classification of violent

offenders); see generally Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995)

(applying the rational basis standard to the treatment of a prisoner and stating that

“[w]hen the plaintiff is not a member of a protected class and does not assert a

fundamental right, we determine only whether government classifications have a

rational basis”). Accordingly, the district court also properly rejected Mr.

Gwinn’s Equal Protection Claim.

III. CONCLUSION

For the reasons set forth above we therefore AFFRIM the district court’s

judgment in favor of the defendants on Mr. Gwinn’s First, Fifth, and Eighth

Amendment claims and on his Equal Protection and Ex Post Facto claims. As to

Mr. Gwinn’s Due Process claims, we affirm the district court’s judgment in favor

-37-
of the defendants insofar as those claims concern Mr. Gwinn’s classification as a

sex offender while incarcerated. As to Mr. Gwinn’s due process claim regarding

his classification as a sex offender upon release from incarceration, we VACATE

the district court’s judgment in favor of the defendants and REMAND this case to

the district court for further proceedings consistent with this opinion.

-38-