Firth v. Shoemaker

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 7, 2012

Elisabeth A. Shumaker
Clerk of Court
SCOTT FIRTH,

Plaintiff-Appellant,

v. No. 11-1484
(D.C. No. 1:09-CV-00224-MSK-MJW)
JONI SHOEMAKER, individually and in (D. Colo.)
her official capacity as Deputy Director
of Clinical Services; PEGGY HEIL,
individually and in her official capacity
as Chief of Rehabilitation Programs;
JOE STOMMEL, individually and in his
official capacity as Chief of
Rehabilitation Programs; BURL
MCCULLAR, individually and in his
official capacity as Sex Offender
Treatment Program Manager; SAMUEL
DUNLAP, individually and in his official
capacity as SOTMP Phase II Program
Coordinator; CHRISTINE TYLER,
individually and in her official capacity
as SOTMP Therapist; DWIGHT
MARTINEZ, individually and in his
official capacity as SOTMP Therapist;
PAT MOSHURE, individually and in her
official capacity as SOTMP Therapist;
JACULYN MAUS, individually and in
her official capacity as SOTMP
Therapist; LENNY WOODSON,
individually and in his official capacity
as SOTMP Therapist; TINA VALDEZ,
individually and in her official capacity
as SOTMP Therapist,

Defendants-Appellees.
 ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and O’BRIEN, Circuit Judges.

Scott Firth appeals pro se the district court’s judgment in favor of defendants

on his 42 U.S.C. § 1983 civil rights claims. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

I. Background

A. Conviction and Sentences

Mr. Firth is a convicted sex offender serving a prison term of six years to

natural life in the Colorado Department of Corrections (CDOC), under the Colorado

Lifetime Supervision of Sex Offenders Act of 1998 (1998 Act), Colo. Rev. Stat.

§§ 18-1.3-1001 to 18-1.3-1012. Mr. Firth was originally charged in Colorado state

court with three counts of aggravated incest, based on allegations that he sexually

molested his minor daughter over an eight-year period. People v. Firth, 205 P.3d.

445, 447 (Colo. App. 2008). In May 2003 he pled guilty to sexual assault on a child

fifteen to seventeen years of age by one in a position of trust. Id. Mr. Firth was
*
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 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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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initially sentenced to sixty days in jail, followed by a term of probation of ten years

to life. His conditions of probation included participation in a sex offender treatment

program under the supervision of his probation officer. Id. at 447-48.

On February 24, 2004, Mr. Firth’s probation officer filed a petition to revoke

his probation, citing his failure to complete sex offender treatment and his possession

of a knife. Id. at 448. Finding that he had violated the terms of his probation, the

state trial court revoked it and sentenced Mr. Firth to his current indeterminate prison

sentence. Id.; see also Colo. Rev. Stat. § 18-1.3-1004(1)(a) (providing for

indeterminate prison sentences for sex offenders with a maximum term of the sex

offender’s natural life). Mr. Firth’s prison sentence also requires him to participate

in CDOC’s sex offender treatment program, see Colo. Rev. Stat. § 18-1.3-1004(3),

hereafter referred to as the Sex Offender Treatment and Monitoring Program

(SOTMP).

Mr. Firth did not appeal his probation revocation or his sentence, but he later

filed a petition for post-conviction relief. The state trial court found that the evidence

regarding his possession of a knife was insufficient to support revocation of his

probation. But the court rejected his other contentions and denied the petition. Firth,

205 P.3d at 448-49. The Colorado Court of Appeals affirmed the trial court’s order,

id. at 452, and the Colorado Supreme Court denied his petition for a writ of

certiorari, Firth v. People, No. 08SC834, 2009 WL 976680, at *1 (Colo. Apr. 13,

2009) (en banc) (unpublished). Mr. Firth then filed a habeas petition in district court

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pursuant to 28 U.S.C. § 2254 challenging the revocation of his probation and his

consequent sentence. Firth v. Smelser, 403 F. App’x 321, 322, 324 (10th Cir. 2010).

After the district court denied his petition as untimely, we denied his application for a

certificate of appealability. Id. at 325.

B. District Court Action

On February 4, 2009, Mr. Firth filed this action in district court against

defendants, all of whom are CDOC employees. The district court construed his

complaint as alleging numerous § 1983 civil rights claims based on violations of

procedural and substantive due process, the Equal Protection Clause, the Fifth

Amendment right against self-incrimination, and the Eighth Amendment prohibition

against cruel and unusual punishment. His claims at issue in this appeal all relate to

his participation in and his ultimate termination from the SOTMP.

Defendants filed a motion to dismiss Mr. Firth’s entire complaint for failure to

state a claim. Ultimately, the district court dismissed all of his original claims with

the exception of his procedural and substantive due process claims challenging his

termination from the SOTMP.1

1
The record reflects that, at the time he filed his complaint, Mr. Firth had not
yet been terminated from the SOTMP. But that fact was not entirely clear from his
complaint, as he had alleged that defendants arbitrarily withheld or excluded him
from treatment during specified periods of time. Mr. Firth was ultimately terminated
from the SOTMP in September 2009, and he supplemented his complaint with new
claims regarding his termination after the district court had dismissed the majority of
the claims in his original complaint.

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 In his complaint, Mr. Firth alleged that defendants violated his substantive and

procedural due process rights by not providing a sex offender treatment program that

an inmate can successfully complete by the time he serves his minimum sentence, so

that he can be eligible for parole at that time.2 The district court construed this claim

as alleging a protected liberty interest in being able to complete the SOTMP

treatment within that timeframe. The court held that Mr. Firth failed to establish

such a liberty interest, because CDOC has considerable statutory and regulatory

discretion to determine how the SOTMP will be accessed by inmates. Therefore, the

court dismissed his procedural and substantive due process claims alleging a denial

of timely access to the SOTMP. The court dismissed on the same basis his claim that

defendants violated his substantive due process rights by limiting the number of

offenders who could participate in the SOTMP at one time.

Mr. Firth also alleged that sex offenders sentenced under the 1998 Act are

treated differently in terms of parole eligibility than sex offenders sentenced before

the 1998 Act, in violation of the Equal Protection Clause. Rejecting his contention

that this differential treatment is based on a suspect classification or a fundamental

2
Although Mr. Firth was eligible for a parole hearing when he completed his
six-year minimum sentence, less earned time, his ability to be released on parole is
dependent on whether he “has successfully progressed in treatment and would not
pose an undue threat to the community if released under appropriate treatment and
monitoring requirements and whether there is a strong and reasonable probability that
the person will not thereafter violate the law.” Colo. Rev. Stat. § 18-1.3-1006(1)(a).
Moreover, CDOC “shall make recommendations to the parole board concerning
whether the sex offender should be released on parole.” Id.

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right, the court concluded there was a rational basis for it and therefore no

constitutional violation. Accordingly, the court dismissed Mr. Firth’s equal

protection claim.

The district court next addressed Mr. Firth’s claim that the SOTMP standards

for progressing in treatment are void for vagueness in violation of procedural due

process. The court construed his claim as focused on the term “minimizing” as it

relates to a sex offender taking accountability for his inappropriate thoughts and

actions. It held that, although the applicable regulations do not define this term, its

meaning—to diminish—is readily ascertainable from the context in which it is used

and is not so ill-defined as to allow Mr. Firth’s therapists to apply the minimizing

prohibition against him at their whim. Therefore, the court dismissed his

void-for-vagueness challenge for failure to state a claim.

The court also dismissed Mr. Firth’s claim alleging that defendants violated

his Fifth Amendment right against self-incrimination by requiring him, as a part of

his SOTMP treatment, to admit the acts upon which his probation was revoked while

he continued to challenge the revocation in the courts. The district court held this

claim was subsumed within his substantive due process claim related to his

termination from the SOTMP and could proceed as part of that claim. As indicated,

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only Mr. Firth’s procedural and substantive due process claims related to his

termination from the SOTMP survived the district court’s dismissal order.3

After Mr. Firth had filed his original complaint, CDOC proceeded to terminate

him from sex offender treatment under the SOTMP. CDOC first provided him

written notice of his therapists’ recommendation that he be terminated. After an

evidentiary hearing, a termination review panel upheld that recommendation. The

district court permitted Mr. Firth to file a supplemental complaint, which it later

construed as raising new procedural and substantive due process claims, as well as

allegations of violations of his rights under the First and Fifth Amendments.

Mr. Firth and defendants then filed cross motions for summary judgment on all

remaining claims.

In ruling on the parties’ summary judgment motions, the district court first

addressed Mr. Firth’s claims regarding his termination from the SOTMP. Defendants

did not dispute in the district court that he has a constitutionally protected liberty

interest in participation in the SOTMP, such that procedural due process was required

before that interest could be deprived. The district court concluded that the
3
The district court also dismissed without prejudice under Heck v. Humphrey,
512 U.S. 477 (1994), Mr. Firth’s claims challenging the constitutionality of the 1998
Act, because they implicated the validity or duration of his sentence and therefore
must be brought in a habeas corpus proceeding. The court dismissed his claim that
Colo. Rev. Stat. § 18-1.3-1006 deprives him of procedural due process because it
fails to provide sufficient periodic assessment of his eligibility for parole. And the
court dismissed his claim of improper delegation of judicial authority under the
Colorado Constitution. Mr. Firth has not appealed the district court’s dismissal of
these claims.

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procedural protections for prison disciplinary hearings, as set forth in Wolff v.

McDonnell, 418 U.S. 539 (1974), were applicable in this case. Mr. Firth was

therefore entitled to (1) advance written notice of the charges against him; (2) the

ability to present evidence in his defense, including the right to call witnesses absent

security concerns; (3) the right to a neutral and detached hearing body; and (4) a

written decision stating the hearing body’s reasons for its decision, supported by

some evidence in the record. See id. at 563-66; Gwinn v. Awmiller, 354 F.3d 1211,

1219 (10th Cir. 2004) (summarizing necessary procedures under Wolff and its

progeny). The court held that Mr. Firth received adequate and timely notice of the

charges; he was given the opportunity to present evidence in response to the charges;

the termination review panel was not impermissibly biased; and he received a written

decision setting forth factual findings in extensive detail that was based on some

evidence in the record. Accordingly, the district court granted summary judgment in

favor of defendants on Mr. Firth’s procedural due process claim regarding his

termination from the SOTMP.

Regarding Mr. Firth’s claim that he was denied due process when defendants

suspended him from the SOTMP pending his termination review hearing, the district

court noted that he was suspended from treatment for only a short period of time

while the termination review panel held a hearing and rendered its decision. Under

these circumstances, the court held that the restraints on Mr. Firth during the short

suspension period were not atypical and substantial hardships entitling him to

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procedural due process protection before he was suspended. Thus, the court held that

defendants were entitled to summary judgment on this claim.

The district court construed Mr. Firth’s original and supplemental complaints

as asserting a substantive due process claim related to his ability to invoke his Fifth

Amendment right against self-incrimination. More specifically, he had alleged that

defendants forced him to choose between invoking his right to refuse to admit the

acts underlying his probation revocation, and full participation in the SOTMP, which

requires him to discuss all of his conduct. The court noted that Mr. Firth also

characterized this claim as a violation of his First Amendment right of access to the

courts, in order to challenge his probation revocation. It concluded that Mr. Firth

needed to show either that the SOTMP requirement was not reasonably related to a

legitimate penological interest, or that the effect it had on his constitutional rights

was shocking to the conscience. The court held that, “[t]o the extent that the SOTMP

causes tension with an inmate’s invocation of his Fifth Amendment rights, the

therapeutic and rehabilitative goals behind the SOTMP constitute legitimate

penological interests that prevail.” R. at 1340-41. Therefore, the court granted

summary judgment in favor of defendants on this claim.

As he did in his original complaint, Mr. Firth included in his supplemental

complaint a claim that the SOTMP criteria for progressing in treatment are void for

vagueness. But the district court found that his new allegations were not focused on

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particular terms and concepts, such as “minimizing,” as used in assessing progress in

sex offender treatment. Instead, the court stated that

the allegations in this claim consist of Mr. Firth disagreeing with the
findings and conclusions of his therapists or the review board regarding
how best to characterize particular instances of conduct . . . . In this
sense, Mr. Firth’s claim is not so much that the terms used are
impermissibly vague, but rather simply that he objects to the fact that
the therapists and review board members do not view the same event the
way he does.

Id. at 1344. Moreover, to the extent that Mr. Firth’s claim could be construed as a

void-for-vagueness challenge, the court incorporated its previous analysis in

dismissing that claim as brought in his original complaint and granted summary

judgment in favor of defendants.

Finally, the district court addressed Mr. Firth’s claim that defendants deprived

him of substantive due process by arbitrarily withholding a recommendation that he

be paroled. The court held it is well-settled that, absent a state-created entitlement,

inmates are not constitutionally entitled to release on parole. The court reasoned

that, “if there is no constitutional obligation for the state to grant parole, there can be

no obligation for the Defendants to recommend it be granted.” Id. at 1346. Because

Mr. Firth failed to point to any state-law provision creating an entitlement to a

favorable recommendation for parole, the court granted summary judgment in favor

of defendants on this claim. Having granted defendants summary judgment on all of

Mr. Firth’s remaining claims, the court denied his summary judgment motion and

entered judgment in favor of defendants. Mr. Firth filed a timely appeal.

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II. Standards of Review

We review de novo a district court’s dismissal of a complaint under

Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Gee v. Pacheco, 627 F.3d 1178,

1183 (10th Cir. 2010). We must assume the truth of all factual allegations in the

complaint, id., but to avoid dismissal “a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face,” id. at

1184 (quotation omitted). We also review de novo a district court’s grant of

summary judgment, applying the same standard as the district court. Gwinn,

354 F.3d at 1215. Under Fed. R. Civ. P. 56(a), summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” “We view the record in the light

most favorable to the nonmoving party.” Gwinn, 354 F.3d at 1215. And “[c]ross

motions for summary judgment are treated separately; the denial of one does not

require the grant of another.” US Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1324

(10th Cir. 2010) (quotation and ellipsis omitted).

Because Mr. Firth is a pro se party, we liberally construe his complaints, as

well as his appellate briefs. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d

836, 840 (10th Cir. 2005); Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998).

But Mr. Firth must “follow the same rules of procedure that govern other litigants.”

Garrett, 425 F.3d at 840.

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III. Discussion

The district court initially dismissed most of the claims in Mr. Firth’s original

complaint. He appeals that ruling with respect to two of his claims: his procedural

due process claim alleging defendants’ failure to provide timely access to SOTMP

treatment and his equal protection claim related to differential treatment of offenders

sentenced before and after the 1998 Act. He also claims error in the district court’s

grant of summary judgment in favor of defendants on his procedural and substantive

due process claims. Finally, he challenges the district court’s dismissal of and grant

of summary judgment on his void-for-vagueness claims.

A. Procedural Due Process Claims

The Due Process Clause states, “No State shall . . . deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. In

order to allege a violation of procedural due process, a plaintiff must first establish a

deprivation of an interest in life, liberty, or property. See Elliott v. Martinez,

675 F.3d 1241, 1244 (10th Cir. 2012). “Finding such a [deprivation] in the prison

setting is particularly daunting[, but] although an inmate’s rights may be diminished

by the needs and exigencies of the institutional environment, a prisoner is not wholly

stripped of constitutional protections when he is imprisoned for crime.” Chambers v.

Colo. Dep’t of Corr., 205 F.3d 1237, 1242 (10th Cir. 2000) (quotation omitted). A

liberty interest may be implicated when prison authorities impose an “atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.”

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Id. (quotation omitted). State laws may also “grant inmates liberty interests to which

due process protections apply.” Id. Where a liberty interest exists, the second

inquiry is “whether the procedures followed by the government in depriving [the

inmate] of that interest comported with due process of law.” Elliott, 675 F.3d at 1244

(quotation omitted).

1. Deprivation of Procedural Due Process in Termination from
the SOTMP

Mr. Firth contends that the district court erred in granting summary judgment

in favor of defendants on his claim that they violated his due process rights in

terminating him from the SOTMP. As we have noted, defendants did not dispute in

the district court that Mr. Firth has a constitutionally protected liberty interest in the

receipt of SOTMP treatment, such that procedural due process was required before

that interest could be deprived. See Beebe v. Heil, 333 F. Supp. 2d 1011, 1017

(D. Colo. 2004) (holding inmate sentenced under the 1998 Act enjoys liberty interest

in receiving mandatory sex offender treatment and is entitled to due process

protections before treatment can be withheld). Defendants explain that, “[a]s a result

of the [district] court’s decision in Beebe, the CDOC promulgated Administrative

Regulation (AR) 700-32 which sets forth the procedural due process requirements

that an inmate must receive before termination from the SOTMP.” Aplee. Br. at

16-17. Thus, in light of defendants’ concession, we have no occasion to address in

this appeal whether such a liberty interest exists.

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 The district court held that Mr. Firth was entitled to the procedural protections

set forth in Wolff, 418 U.S. at 563-571, before he could be terminated from the

SOTMP. He first contends that the court erred in applying the Wolff standards. In

the district court he argued that due process in this case requires the procedural

protections applicable in a parole revocation hearing, as set forth in Morrissey v.

Brewer, 408 U.S. 471, 489 (1972) (listing required processes). See R. at 1052. But

he changes course in his opening appeal brief, asserting instead that the processes

applied in civil-commitment proceedings are required before defendants can

terminate him from the SOTMP. He did not make that argument in the district court

and consequently the district court did not address it.4 Therefore, he has failed to

preserve this argument for consideration on appeal. See Simmat v. U.S. Bur. of

Prisons, 413 F.3d 1225, 1240 (10th Cir. 2005) (declining to consider pro se argument

raised for the first time on appeal). Nor will we address the argument that Mr. Firth

made in the district court, but fails to renew on appeal. See Bronson v. Swensen,

500 F.3d 1099, 1104 (10th Cir. 2007) (holding omission of issue in opening brief

generally forfeits appellate consideration).

4
Mr. Firth cites two pages in the record where he made reference to
civil-commitment proceedings, but he did not argue on the cited pages that the due
process protections applicable to such proceedings were required before terminating
him from the SOTMP. See R. at 159 (raising issue in context of argument that the
1998 Act is unconstitutional, see id. at 151); id. at 1128 n.7 (raising issue in context
of argument that defendants violated his substantive due process rights by arbitrarily
denying a recommendation for parole, see id. at 1125).

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 We proceed, then, to Mr. Firth’s contentions that defendants deprived him of

procedural due process under the Wolff standards. He first contends that he did not

receive sufficient advance written notice of the charges against him. See Wolff,

418 U.S. at 563-64. The notice provided to Mr. Firth was quite extensive and

detailed. It stated generally that Mr. Firth was recommended for termination from

treatment because he had “demonstrated a lack of progress in treatment, a lack of

motivation for treatment, and a failure to meet program expectations.” R. at 567.

The notice then included five single-spaced pages of detailed facts supporting these

conclusions. Mr. Firth argues that the notice nonetheless provided insufficient

factual detail because it failed to cite program rules or standards upon which the

charges were based. But he cites no authority for this proposition. See Phillips v.

Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992) (holding party must support

argument with legal authority). Nor does he explain why he was unable to “marshal

the facts and prepare a defense” based on the notice he received. Wolff, 418 U.S. at

564. According to the transcript of the termination review hearing, Mr. Firth testified

extensively in response to the conclusions in the notice and also produced

documentary evidence for the panel to review. Therefore, he fails to establish that

the notice did not satisfy due process requirements.

Wolff held that an inmate “should be allowed to call witnesses and present

documentary evidence in his defense when permitting him to do so will not be unduly

hazardous to institutional safety or correctional goals.” 418 U.S. at 566. Mr. Firth

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contends that he was deprived of the right to call witnesses at the termination review

hearing because immediately after executing the notice, he was moved to another

prison facility, placed in solitary confinement, and prevented from contacting

anyone, including potential witnesses. We are not persuaded. Mr. Firth completed a

CDOC form to request a termination review hearing. On that form he was permitted

to indicate the witnesses he wanted to call. He wrote “LATER” rather than listing

any witnesses. R. at 565. He asserts that he was not prepared to identify witnesses at

that time and could not interview any witnesses later due to his transfer and

placement in solitary confinement. But as the district court observed, the charges in

the notice related to ongoing issues Mr. Firth had with his therapists and his peers,

and the notice provided sufficient factual information for him to identify the relevant

witnesses. Moreover, Mr. Firth points to no evidence that he subsequently asked to

call any witnesses at the hearing but defendants prevented him from doing so. Thus,

he has not shown a material fact in dispute with respect to whether defendants

prevented him from calling witnesses in his defense.

In Gwinn, 354 F.3d at 1219, we held that an impartial decision maker was

necessary to comply with due process under the Wolff standards. A lack of neutrality

may occur if the decision maker was involved in the event at issue or if the decision

was imposed for an improper purpose. See Mitchell v. Maynard, 80 F.3d 1433, 1446

(10th Cir. 1996). Mr. Firth contends that the termination review panel upheld his

termination from the SOTMP for an improper purpose, but he fails to point to any

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evidence that the panel or any of its members had an improper motive. See id.

(holding inmate’s evidence failed to prove that decision maker had an improper

motive).

Under Wolff, an inmate must also be provided with “a written statement of the

factfinders as to the evidence relied upon and reasons for the . . . action taken.”

418 U.S. at 563. In its detailed written decision, Mr. Firth’s termination review panel

addressed the evidence presented at the hearing and made factual findings. The panel

did not accept all of the claims made by Mr. Firth’s therapists, but it concluded

overall that his behavior was not consistent with program expectations, rehabilitative

goals, and treatment progress, and was sufficiently wrongful to warrant termination.

See R. at 282-83. As he did regarding the termination notice, Mr. Firth argues that

the lack of citations to program rules or standards in the panel’s decision renders it

insufficient to satisfy due process. But again, he cites no authority for this

proposition. See Phillips, 956 F.2d at 953-54. We conclude that the termination

review panel’s decision in this case was sufficient to satisfy Wolff’s requirement of a

written statement of the evidence relied upon and the reasons for the action.

Mr. Firth argues further that the district court erred in applying the “some

evidence” standard to determine whether the termination review panel’s decision

complied with due process requirements. Superintendent, Mass. Corr. Inst. v. Hill,

472 U.S. 445, 454 (1985). In Hill, the Supreme Court held that, in addition to the

procedures mandated by Wolff, the findings in a prison disciplinary proceeding

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resulting in a loss of good time credits must be supported by “some evidence in the

record” in order to “comport with the minimum requirements of procedural due

process.” Id. (quotation omitted). The Court explained that “[a]scertaining whether

this standard is satisfied does not require examination of the entire record,

independent assessment of the credibility of witnesses, or weighing of the evidence.

Instead, the relevant question is whether there is any evidence in the record that could

support the conclusion reached by the [fact finder].” Id. at 455-56.

Mr. Firth contends that, after the panel issued a decision in his case, CDOC

instituted a new requirement that decisions by a termination review panel must be

based on a preponderance of the evidence. He claims that defendants violated his

due process rights by not applying that evidentiary standard in his hearing.

Mr. Firth’s argument confuses the standard of proof applied by the fact finders in his

case with the standard a federal court employs in determining whether findings by

prison authorities satisfy due process. See Plunk v. Givens, 234 F.3d 1128, 1129-30

(10th Cir. 2000) (rejecting similar claim that district court erred in applying “some

evidence” standard in determining whether disciplinary conviction complied with

dictates of due process). The Court stated in Hill that “[t]he fundamental fairness

guaranteed by the Due Process Clause does not require courts to set aside decisions

of prison administrators that have some basis in fact.” 472 U.S. at 456. Consistent

with Hill, we conclude that the district court did not err in applying the “some

evidence” standard in this case. Cf. Gwinn, 354 F.3d at 1214, 1218-19 (holding

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“some evidence” standard applicable to CDOC decision classifying inmate who had

not been convicted of a sexual offense as a sex offender). Because Mr. Firth does not

advance any contention that the evidence here failed to meet the “some evidence”

standard, he fails to show that the termination review panel’s decision violated his

due process rights.

2. Deprivation of Procedural Due Process in Suspension from
the SOTMP Without a Hearing

Upon receipt of the notice that his therapists had recommended his termination

from the SOTMP, Mr. Firth was suspended from treatment pending his termination

review hearing. There is no dispute that he did not receive a hearing before his

suspension. He contends that the lack of a hearing at this stage violated his due

process rights. The district court found that Mr. Firth’s suspension lasted only a brief

period of time: from August 31 to September 15, 2009, the date the panel issued its

decision. In rejecting his claim that the suspension from the SOTMP deprived him of

a protected liberty interest, the court reasoned:

The record here does not indicate that Mr. Firth suffered a lengthy
suspension for no apparent reason; by all appearances, CDOC and the
review board proceeded expeditiously, considering two days of
testimony and supporting exhibits and writing a decision containing
specific factual findings and conclusions, all within the span of 15 days.
Under these circumstances, the Court cannot say that the restraints on
Mr. Firth during the period of suspension were such atypical and
substantial hardships that he was entitled to procedural Due Process
protection before being suspended.

R. at 1343.

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 On appeal, Mr. Firth challenges the district court’s determination that he did

not suffer an atypical and substantial hardship by being suspended from the SOTMP

pending his termination review hearing. He maintains that his suspension resulted in

“penal imprisonment for the rest of his natural life with the details of his sexual

assault known to the general prison population and no possibility of return to SOTMP

or of parole eligibility.” Aplt. Opening Br. at 58. But he points to no evidence that

he suffered such consequences as a result of his suspension from the SOTMP. And

we have already held that he received the process dictated by Wolff before being

terminated from treatment. Nor does he address the district court’s conclusion, based

on the limited suspension period, that he failed to show a protected liberty interest.

Instead, he devotes the majority of his argument on this claim to the process that he

contends would be required if he had established a liberty interest. Accordingly, we

affirm the district court’s grant of summary judgment in favor of defendants on this

claim.

3. Deprivation of Procedural Due Process by Failing to Provide
Timely and Adequate SOTMP Treatment
Mr. Firth also contends that the district court erred in dismissing his claim that

defendants violated his procedural due process rights by failing to provide him

sufficient access to SOTMP treatment. The district court construed this claim as

asserting a protected liberty interest not only in the ability to participate in mandatory

SOTMP treatment (which defendants concede), but more specifically in the ability to

complete SOTMP treatment before he had served his minimum sentence, so that he

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could be eligible for parole at that time.5 Mr. Firth contended that state statutes and

regulations created such an entitlement, but the district court concluded that none of

the authorities he cited supported the finding of a liberty interest.

On appeal, Mr. Firth renews his contention that various state statutes and

regulations create a liberty interest in “continuous SOTMP . . . sufficient that he may

progress . . . [and] be considered a candidate for parole . . . within the time period of

his minimum sentence less earned time.” Id. at 33. We construe his claim as

asserting a liberty interest in progressing in or completing SOTMP treatment such

that he would be eligible for parole in that timeframe. See id. at 34 (asserting that

“[t]he legislature would not order a parole hearing if they did not fully expect the

inmate to be a candidate eligible for parole at that time. The inmate cannot be a

candidate eligible for parole unless he has successfully progressed in SOTMP and has

Defendants’ recommendation in favor of parole.”).

Mr. Firth cites numerous state statutory sections in his opening appeal brief

that he maintains create the liberty interest he alleges. Many of these sections were

repealed in 2002, see Colo. Rev. Stat. §§ 16-13-801 to 16-13-812, and he does not

cite corresponding statutes that are currently in effect, if any. Other statutes he

5
The district court stated that if Mr. Firth claimed a liberty interest in the ability
to sufficiently progress in the SOTMP in order to be eligible for parole by the time
he had served his minimum sentence, as opposed to the ability to complete the
SOTMP in that timeframe, his claim would still be subject to dismissal because he
identified nothing specific about the SOTMP in his original complaint that made it
impossible to progress in treatment.

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points to were not considered by the district court, and he fails to identify the specific

pages in the record where he brought these provisions to that court’s attention. See

Lopez v. Behles (In re Am. Ready Mix, Inc.), 14 F.3d 1497, 1502 (10th Cir. 1994)

(holding issue not properly before the appellate court where appellant fails to

demonstrate where in the record an issue was raised in the district court). Notably,

he does not cite to the points in the record where he raised and the district court

considered his argument that Colo. Rev. Stat. § 16-11.7-103(4)(b) guarantees an

inmate “continuous” SOTMP treatment. We decline to consider statutes that

Mr. Firth cites for the first time on appeal.

But as he did in the district court, Mr. Firth also relies on CDOC’s AR 700-19

to support his contention that he has the liberty interest he claims. The district court

held that the provisions of AR 700-19 undercut any contention that state law requires

CDOC to provide sex offenders an ability to complete the SOTMP before the end of

their minimum sentences. The court focused on regulatory provisions specifically

calling for prioritization of treatment based on available resources, as well as other

sections demonstrating CDOC’s considerable discretion to apply various factors in

determining access to treatment.

Mr. Firth argues that the district court applied the wrong version of AR 700-19

in its analysis. He notes that CDOC issued a revised regulation after he filed his

original complaint, which deleted the specific language on which he relies. Compare

AR 700-19 (Nov. 1, 2008), with AR 700-19 (Apr. 1, 2009). The earlier version of

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AR 700-19 stated: “The Department of Corrections shall provide treatment formats

which give offenders the opportunity to progress in treatment and be considered a

candidate for parole within the time period of their minimum sentence.” AR 700-19

IV(G) (Nov. 1, 2008). But the district court addressed that language as well,

concluding that the key word was “progress,” and holding that, “[a]t best, this portion

of the regulation creates a mandatory duty on CDOC officials to allow each inmate

the opportunity to begin SOTMP treatment before the expiration of their minimum

sentence, such that they can thereafter demonstrate ‘progress.’” R. at 208 n.9.

We agree with the district court that the language cited by Mr. Firth in the

earlier version of AR 700-19 did not create the liberty interest he asserts. It did not

guarantee that CDOC would provide SOTMP treatment that would result in sufficient

progress in or completion of treatment to make an inmate eligible for parole by the

time he served his minimum sentence. The language he cites required only that

inmates be given an opportunity to progress in treatment and be considered for parole

within that time period. We affirm the district court’s dismissal of this claim on the

basis that Mr. Firth failed to establish a protected liberty interest.

B. Substantive Due Process Claims

Mr. Firth contends that the district court erred in granting defendants summary

judgment on his substantive due process claims. “Substantive due process bars

certain government actions regardless of the fairness of the procedures used to

implement them.” Brown v. Montoya, 662 F.3d 1152, 1172 (10th Cir. 2011)

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(quotation omitted). “The Supreme Court has described two strands of the

substantive due process doctrine. One strand protects an individual’s fundamental

liberty interests, while the other protects against the exercise of governmental power

that shocks the conscience.” Seegmiller v. LaVerkin City, 528 F.3d 762, 767

(10th Cir. 2008). “Prisoners are entitled to substantive due process; but

substantive-due-process rights available to free persons may be denied to prisoners if

the denial bears a rational relation to legitimate penological interests.” Reedy v.

Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (quotation and brackets omitted).

1. Compulsion to Make False Statements

Mr. Firth argues that the district court misconstrued one of his substantive due

process claims as asserting a violation of his Fifth Amendment right against

self-incrimination. He states that he “had no desire to remain silent or to avoid

conceding factual or legal issues.” Aplt. Opening Br. at 18.6 Instead, he maintains

that defendants forced him to fabricate facts regarding his thoughts and conduct. He

alleges further that, based on these fabricated facts, defendants forced him to

acknowledge that he is high risk and dangerous. He maintains that, by doing so,

defendants effectively forced him to choose between telling the truth and being

6
We agree with the district court that Mr. Firth did assert a violation of his Fifth
Amendment right against self-incrimination. But he affirmatively abandons that
claim on appeal. Consequently, we have no occasion to review the district court’s
holding that the therapeutic and rehabilitative goals behind the SOTMP constitute
legitimate penological interests that prevail over an inmate’s invocation of his Fifth
Amendment rights.

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terminated from the SOTMP, or fabricating facts and admitting that he is high risk

and dangerous in order to remain in the treatment program. In either case, he

contends that the result is prolonged imprisonment up to his natural life. Mr. Firth

refers to defendants’ alleged insistence that he make false statements in the SOTMP

as a “quagmire” they created that prevents him from progressing in treatment, as well

as a “perverted paradigm” of the 1998 Act. Id. at 35, 39. He argues that defendants’

conduct both implicates his fundamental liberty interests and shocks the judicial

conscience. And he concludes that “[t]he need for Plaintiff to lie is not narrowly

tailored to serve a compelling government interest.” Id. at 13.7

Mr. Firth’s claim requires him to show that defendants forced him to make

false statements of fact in order to progress in treatment. He purports to identify

twenty-five instances in which defendants compelled him to do so or suffer

termination from the SOTMP. But the incidents that Mr. Firth relates involve

disagreements between him and his therapists regarding characterizations of the facts

he reported, rather than defendants forcing him to make false statements of fact in

order to progress in treatment. Several examples are illustrative: He repeatedly

disagreed with his therapists about whether certain thoughts he had disclosed were

properly characterized as “fantasies,” “daydreams,” or “flash thoughts,” and whether

7
We consider this claim because Mr. Firth did raise his allegation of defendants
requiring forced fabrications in the district court, although that court did not address
it. It is also a common theme throughout his appellate arguments and ultimately
underlies several of his claims.

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they placed him at high risk or not. He and one of his therapists disagreed about

whether a vision that he had of his sister floating up to heaven in a white gown meant

that he perceived it was acceptable to fantasize about his sister, who was one of his

sexual-assault victims and who later committed suicide. He disagreed with his

therapists’ conclusion that he had accused his peers of targeting him based on his

statement, “I feel targeted.” He and his therapists disagreed on whether he had

“followed” a jogger when he admitted that he saw her and chose to drive past her to

look at her. And he and his therapists disagreed on whether his possession of a knife

in his glove box, when it was not illegal for him to do so, was nonetheless high risk

conduct for a sex offender.8

We need not decide whether defendants would violate Mr. Firth’s substantive

due process rights if they forced him to make false statements of fact in order to

progress in SOTMP treatment, because we conclude that he fails to point to evidence

supporting his claim that defendants did so. Consequently, because Mr. Firth failed

to show a genuine dispute of material fact with respect to an essential element of his

8
Mr. Firth raised with the termination review panel these and other
disagreements he had with his therapists. But
[t]he Panel concluded that the offender is locked in a cycle of
defensiveness and is generally unwilling to explore his thinking and
behavior patterns except on his own terms. . . . The Panel concluded
that there were significant instances of the offender reporting his
thinking, but that these reports became embroiled in unproductive
resistance as to their meaning and definition.

R. at 283.

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claim, we affirm the district court’s grant of summary judgment in favor of

defendants on this alternative ground. See Jensen v. Kimble, 1 F.3d 1073, 1077

(10th Cir. 1993) (when nonmoving party fails to show genuine issue for trial with

respect to essential element of claim on which he bears burden of proof, moving

party is entitled to summary judgment); Stat-Tech Int’l Corp. v. Delutes (In re

Stat-Tech Int’l Corp.), 47 F.3d 1054, 1057 (10th Cir. 1995) (“[W]e are free to affirm

a grant of summary judgment on grounds different than those used by the district

court if the record is sufficient to support such grounds.”).

2. Arbitrary Withholding of Recommendation for Parole

In his other substantive due process claim Mr. Firth asserts that defendants

violated his fundamental rights by arbitrarily withholding a recommendation that he

be paroled. The district court held that he has no protected liberty interest in a

favorable parole recommendation. Citing Greenholtz v. Inmates of Nebraska Penal

and Correctional Complex, 442 U.S. 1, 7 (1979), the court stated that, absent a

state-created entitlement thereto, there is no constitutional entitlement to parole. The

court reasoned, “if there is no constitutional obligation for the state to grant parole,

there can be no obligation for the Defendants to recommend it be granted.” R. at

1346. While acknowledging that state law could create a non-discretionary

obligation to recommend parole, the court held that CDOC’s parole-recommendation

process turned on subjective determinations by SOTMP therapists. Therefore, the

court concluded that Mr. Firth failed to show an entitlement to a favorable parole

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recommendation and could not allege a substantive due process claim based on his

failure to receive one.

Mr. Firth argues on appeal that defendants are statutorily required to make a

parole recommendation, but the statute he cites was repealed in 2002. See Colo. Rev.

Stat. § 16-13-806(1). He also argues that no inmate can be held beyond his

maximum imprisonment sentence and that all inmates must be paroled upon reaching

their mandatory release dates. But he fails to acknowledge that his maximum

sentence is life in prison under Colo. Rev. Stat. § 18-1.3-1004(1)(a). The remainder

of Mr. Firth’s arguments in favor of a non-discretionary right to a favorable parole

recommendation rely on his assertion that he has a right to SOTMP treatment that

will make him eligible for parole upon completion of his minimum sentence. We

have already rejected that contention. Accordingly, we affirm the district court’s

grant of summary judgment in favor of defendants on all of Mr. Firth’s substantive

due process claims.

C. Claims that the SOTMP Standards are Void for Vagueness

“As a basic matter of due process, a law is ‘void for vagueness’ if it does not

clearly define its prohibitions.” Doctor John’s, Inc. v. City of Roy, 465 F.3d 1150,

1157 (10th Cir. 2006). “A statute is unconstitutionally vague for one of two reasons:

it either fails to provide people of ordinary intelligence a reasonable opportunity to

understand what conduct it prohibits; or it authorizes or even encourages arbitrary

and discriminatory enforcement.” Id. at 1158 (quotations omitted).

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 Mr. Firth argues that the district court erred in dismissing his original

void-for-vagueness claim and in granting summary judgment on the claim that he

alleged in his supplemental complaint. He had originally alleged that the regulations

governing the SOTMP were void for vagueness because they gave his therapists

unfettered discretion to deem him compliant or non-compliant with treatment goals.

The district court construed his claim as focused on the term “minimizing” as it is

used in the SOTMP, and it held that term was not unconstitutionally vague.

Regarding his claim in his supplemental complaint, the court concluded that

Mr. Firth was actually challenging the findings and conclusions of his therapists

regarding how to characterize his thoughts and conduct, and to that extent he failed to

substantiate a void-for-vagueness claim.

Mr. Firth’s arguments on appeal follow the same path. He affirmatively states

that the term “minimizing” is not void for vagueness, see Aplt. Opening Br. at 42,

emphasizing instead his disagreement with his therapists’ perceptions of the

importance of his disclosures of his thoughts and conduct. He asserts that defendants

have failed to give him notice regarding what he is minimizing, but his argument

ultimately returns to his claim—that we have already rejected as not supported by

evidence sufficient to show a material fact in dispute—that defendants have

compelled him to make false statements and fabrications in order to progress in the

SOTMP. He therefore fails to establish error in the district court’s dismissal of his

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original void-for-vagueness claim or the court’s grant of summary judgment in favor

of defendants on his supplemental claim.

D. Violation of the Equal Protection Clause
To state an equal protection claim, a plaintiff must allege that similarly

situated persons are treated differently. See Price-Cornelison v. Brooks, 524 F.3d

1103, 1109 (10th Cir. 2008). If the challenged government action does not implicate

a fundamental right or a protected class, the plaintiff must show that it was not

justified by a “rational relation to some legitimate end.” Id. at 1110 (quotation

omitted).

Mr. Firth contends that the district court erred in dismissing his claim that

applying different parole eligibility requirements for sex offenders sentenced before

and after the 1998 Act violates the Equal Protection Clause. He does not argue that

this differential treatment is based upon a suspect classification or a fundamental

right, so we construe his claim to be that there is no rational basis for the distinction.

The district court held that the Colorado legislature’s decision in 1998 to provide for

a more comprehensive sex-offender-treatment scheme provides a rational basis.

Mr. Firth does not dispute this conclusion. Instead, he argues there is no rational

basis for the defendants’ application of the 1998 Act, specifically their “perverted

paradigm” under which he is required to make false statements in order to progress in

the SOTMP. Again, we have held that Mr. Firth failed to present evidence of

defendants compelling him to make false factual statements sufficient to establish a

material fact in dispute. Therefore, we reject his contention of error and affirm the
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district court’s grant of summary judgment in favor of defendants on his equal

protection claim.9

IV. Conclusion

The judgment of the district court is AFFIRMED.

Entered for the Court

Stephen H. Anderson
Circuit Judge

9
To the extent that Mr. Firth attempts to raise additional issues on appeal, his
arguments are insufficiently developed to invoke appellate review. See Murrell v.
Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (“perfunctory” allegations of error
that “fail to frame and develop an issue [are in]sufficient to invoke appellate
review”).

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