F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 18 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN HERRERA,
Plaintiff-Appellant,
v. No. 03-2248
JOE WILLIAMS, Warden, Central NM (D.C. No. CIV-03-981 WPJ/DJS)
Correctional Facility, in his individual and (D. New Mexico)
professional capacities; ROBERT J.
PERRY, Secretary of New Mexico
Department of Corrections, in his
individual and professional capacities;
JOHN DOE, in his individual and
professional capacities; RICHARD ROE,
in his individual and professional
capacities,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before TACHA, Chief Circuit Judge, BRISCOE and HARTZ, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is therefore ordered
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
submitted without oral argument.
Plaintiff John Herrera, a state prisoner appearing pro se, appeals the district court’s
dismissal of his complaint for failure to state a claim. We exercise jurisdiction pursuant
to 28 U.S.C. § 1291 and affirm.
I.
Herrera is a prisoner at the Southern New Mexico Correctional Facility in Las
Cruces, New Mexico. He filed his complaint under 42 U.S.C. §§ 1983, 1985, and 1986,
claiming officers and agents of the New Mexico Department of Corrections violated his
Eighth and Fourteenth Amendment rights. Specifically, he alleged that, without a
determination of his mental state, the Central New Mexico Correctional Facility forced
him to remain in a maximum security mental health unit. Additionally, in his amended
complaint, Herrera alleged post-conviction application of the New Mexico Sex Offender
Registration and Notification Act, N.M. Stat. Ann. § 29-11A-1 (2004), violated his rights
under the ex post facto clause. The district court dismissed Herrera’s complaint for
failure to state a claim.
II.
Refusal to transfer Herrera from a maximum to a medium security facility does not
rise to the level of a due process violation. Prisoners do not have a liberty interest in a
particular prison classification where the state retains discretion in classifying prisoners.
See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994); Bailey v. Shillinger, 828
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F.2d 651, 652 (10th Cir. 1987). The Supreme Court has held that classifying a prisoner in
administrative segregation does not involve deprivation of a liberty interest independently
protected by the Constitution’s due process clauses. See Hewitt v. Helms, 459 U.S. 460,
468 (1983).
Nor has Herrera alleged facts which, if proven, would tend to show he was
subjected to cruel and unusual punishment. “[P]lacing an inmate in segregation as a
preventive measure does not necessarily violate the Eighth Amendment.” Shillinger, 828
F.2d at 653. To prevail, Herrera must allege facts which “involve the wanton and
unnecessary infliction of pain” or are “grossly disproportionate to the severity of the
crime warranting imprisonment.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
III.
Although the claim is vague and unclear, Herrera appears to contend that
application of the New Mexico Sex Offender Registration Act to him violates the ex post
facto clause because he was convicted before the Act was effective. Among laws
prohibited by the ex post facto clause are those that “make[] more burdensome the
punishment for a crime, after its commission.” Collins v. Youngblood, 497 U.S. 37, 42
(1990) (internal quotations omitted). However, sex offender registry laws do not fall
within the purview of the ex post facto clause because they impose only civil burdens
upon sex offenders and do not implicate criminal punishments, as required by the ex post
facto clause. See Femedeer v. Haun, 227 F.3d 1244, 1253 (10th Cir. 2000) (analyzing
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Utah sex offender registry); see also Smith v. Doe, 538 U.S. 84 (2003) (upholding Alaska
sex offender registration act against ex post facto clause challenge on grounds that act
was intended as a civil, non-punitive statute). Herrera has presented no evidence tending
to establish the New Mexico statute is in any way different.
AFFIRMED. All pending motions are DENIED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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