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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15535
Non-Argument Calendar
________________________
D.C. Docket No. 5:13-cv-02322-VEH-JEO
ADAM KEITH WALDMAN,
Plaintiff-Appellant,
versus
ALABAMA PRISON COMMISSIONER,
CASSANDRA CONWAY,
Classification Director, in her individual and official capacity,
AMANDA BAGGETT,
Assistant Classification Director, in her individual and official capacity,
MRS. COOLEY,
Classification Specialist, in her individual and official capacity,
CAPTAIN BUTLER,
in her individual and official capacity,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(September 26, 2017)
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Before TJOFLAT, FAY and MARCUS, Circuit Judges.
PER CURIAM:
Adam Waldman, an Alabama prisoner proceeding pro se, appeals the
District Court’s dismissal of his complaint under 42 U.S.C. § 1983 against five
officials from the Alabama Department of Corrections (“ADOC”) on his claims
that the Alabama Sex Offender Registration and Community Notification Act
(“ASORCNA”) and the ADOC classification manual violated his procedural due
process, substantive due process, and ex post facto rights. Waldman first argues
that the ADOC officials violated his Fourteenth Amendment procedural due
process rights by classifying him as a sex offender without providing notice, a
hearing, or a chance to present evidence or witnesses. Second, he contends that the
ADOC officials violated his Fourteenth Amendment substantive due process rights
by classifying him as a sex offender when he was convicted of kidnapping and had
never committed a sex offense. Finally, Waldman argues that the ADOC officials
committed an ex post facto violation by imposing a greater punishment for his
crime than existed at the time he was convicted. After reviewing the record and
considering the parties’ briefs, we affirm.
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I.
In September 2005, Waldman was convicted in Alabama state court of first-
degree robbery, first-degree attempted assault, and first-degree kidnapping of a
minor, all under Alabama law. He was sentenced to two life sentences plus an
additional ten years. Waldman argues, and Appellees do not contest, that his crime
did not involve sexual conduct with the child he abducted. Rather, he claims that
the trial record shows that he abducted the child in order to obtain a ransom or use
the child as a shield or hostage. Nevertheless, Alabama law includes first and
second-degree kidnapping of a minor in its list of “sex offenses” under
ASORCNA. Ala. Code § 15-20A-5(18). Although ASORCNA was not enacted
until 2011—six years after Waldman’s conviction—its predecessor statute defined
first and second-degree kidnapping of a minor as “sex offenses” as early as 1998—
seven years prior to his conviction. See id. § 15-20-21 (1998).
Under ASORCNA, every adult sex offender, regardless of when his crimes
were committed or when his duty to register arose, must register specified personal
information in each county that he intends to reside, work, or attend school. See id.
§§ 15-20A-3, 15-20A-7, 15-20A-10. Alabama law places several other limits on
sex offenders, including in part: (1) a prohibition on residing within 2,000 feet of
any school, childcare facility, resident camp facility, or any of their victims; (2) a
prohibition on employment at any school, childcare facility, or any business that
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provides services primarily to children, among other restrictions; and (3) a
requirement to report any travel for a period of three or more consecutive days to
the sheriff in each county of residence. See id. §§ 15-20A-11, 15-20A-13, 15-20A-
15. At least 30 days prior to release, or immediately upon notice of release if
release is in less than 30 days, the ADOC must inform sex offenders of their duty
to register, provide the required registration information to the state and any
planned counties of residence if within Alabama, and provide the required
registration information to the state along with any information necessary to track
the offender if the planned county of residence is outside of Alabama. Id. § 15-
20A-9.
Moreover, ASORCNA and a predecessor provision enacted in 2005 make
persons convicted of “sex offenses” ineligible for parole. See id. § 15-22-27.3
(2017); id. (2005). The Alabama legislature stated that ASORCNA’s purpose was
to further the State’s interest in protecting vulnerable populations, particularly
children. Id. § 15-20A-2(5). The legislature noted that its intent was “not to
punish sex offenders but to protect the public and, most importantly, promote child
safety.” Id.
Pursuant to ASORCNA, the ADOC adopted a classification manual that
classifies inmates according to the type of offense of which they were convicted.
The ADOC classification manual prescribes that inmates who have been convicted
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of a sex offense should receive an “S” suffix added to their inmate number. 1 It
also renders them ineligible for minimum custody, which means they must
necessarily be made ineligible for work release and other early-release programs as
well. Waldman also contends that, due to his “S” classification, he is forced to
attend classes or group therapy sessions for sex offenders in prison. The manual
requires prison officials to notify an inmate at least 24 hours in advance before
changing his classification, in order to allow him to present information that could
bear on their classification decision.
Waldman contends that prison officials classified him as a sex offender
pursuant to the ADOC manual in May 2013, many years after his confinement
began. He alleges that those officials failed to observe the ADOC classification
manual’s 24-hour notice requirement before doing so. After failing to obtain relief
by protesting the classification to prison officials, Waldman brought this lawsuit
pro se, filing a verified complaint under 42 U.S.C. § 1983 against five ADOC
officials in their official and individual capacities. He alleged in his complaint that
those officials violated his due process rights by classifying him as a sex offender
when he had never been convicted of a sex offense. He further alleged that the
classification constituted a violation of the Ex Post Facto and Double Jeopardy
Clauses, and that he was subjected to a bill of attainder. He sought compensatory
1
The ADOC manual is not in the appeal record, but the parties agree that the manual includes
these provisions.
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and punitive damages, declaratory and injunctive relief, and to have the “S” suffix
removed from his inmate number and file.
Before Waldman served process, a Magistrate Judge entered a report and
recommendation (R&R) recommending that the District Court dismiss the
complaint under 28 U.S.C. § 1915A(a) for failure to state a claim. The District
Court accepted the R&R in part and rejected it in part. The part it rejected
concerned Waldman’s procedural due process claim: the Court found that the
Magistrate Judge erroneously relied on this Court’s holding in Kirby v. Siegelman,
195 F.3d 1285 (11th Cir. 1999) (per curiam), to deny that Waldman possessed a
liberty interest in not being classified in prison as a sex offender. Nevertheless, the
Court dismissed Waldman’s claim in full for failure to state a claim for relief.
Waldman timely appealed.
II.
We review de novo a district court’s sua sponte dismissal for failure to state
a claim for relief under 28 U.S.C. § 1915A(b). Jones v. Fla. Parole Comm’n, 787
F.3d 1105, 1107 (11th Cir. 2015). A district court’s denial of leave to amend due
to futility is also reviewed de novo. Fla. Evergreen Foliage v. E.I. DuPont De
Nemours and Co., 470 F.3d 1036, 1040 (11th Cir. 2006) (per curiam). We may
affirm on any ground supported by the record, regardless of whether that ground
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was relied upon or even considered below. Kernel Records Oy v. Mosley, 694 F.3d
1294, 1309 (11th Cir. 2012).
Under 28 U.S.C. § 1915A(a), the district court must screen any complaint in
which a prisoner seeks redress from a governmental entity or officer. 28 U.S.C.
§ 1915A(a). The court must dismiss any complaint that fails to state a claim upon
which relief may be granted. Id. § 1915A(b)(1). To avoid dismissal for failure to
state a claim, a complaint must include factual content that allows the court to draw
the reasonable inference that the defendant is liable for the alleged misconduct.
Jones, 787 F.3d at 1106–07. The complaint’s factual allegations must be accepted
as true. Id. at 1107. A pro se pleading is held to a less stringent standard than a
pleading drafted by an attorney and is liberally construed. Id. However, a pro se
pleading must still suggest that there is at least some factual support for a claim.
Id. Issues not briefed on appeal by pro se litigants are deemed abandoned. Timson
v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam).
We review each of Waldman’s arguments sequentially. We find that the
District Court did not err in dismissing Waldman’s complaint for failure to state a
claim upon which relief could be granted.
a. Procedural Due Process
The Due Process Clause protects against deprivations of “life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. A prisoner
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can be deprived of his liberty such that due process is required in two contexts:
(1) “when a change in the prisoner’s conditions of confinement is so severe that it
essentially exceeds the sentence imposed by the court”; or (2) “when the state has
consistently bestowed a certain benefit to prisoners, usually through statute or
administrative policy, and the deprivation of that benefit imposes an ‘atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison
life.’” Kirby, 195 F.3d at 1290–91 (quoting Sandin v. Conner, 515 U.S. 472, 484,
115 S. Ct. 2293, 2301 (1995)).
We conclude that the District Court did not err when it dismissed
Waldman’s procedural due process claim for failure to state a claim. Waldman’s
procedural due process claim rests on three arguments: (1) in classifying him as a
sex offender pursuant to ASORCNA and the ADOC classification manual, prison
officials deprived him of a liberty interest by triggering post-release conditions, (2)
prison officials failed to afford him the process he was owed by failing to follow
the classification manual’s notice requirements, and (3) in classifying him as a sex
offender pursuant to ASORCNA and the ADOC classification manual, prison
officials deprived him of a liberty interest by changing the conditions of his
confinement. We address those arguments in order.
First, insofar as Waldman challenges ASORCNA’s post-release restrictions,
such as the travel restriction, that challenge is not ripe. To determine whether a
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claim is ripe, we must weigh two factors: “(1) the hardship to the parties of
withholding court consideration; and (2) the fitness of the issues for judicial
review.” Id. at 1290. As part of the first factor, we ask whether the plaintiff “has
suffered injury or come into immediate danger of suffering injury.” Id. A merely
speculative threat of injury is insufficient. Id.
Here, there is no indication that Waldman is due to be released at any point
in the foreseeable future. See id. at 1290. Waldman was sentenced to two life
sentences and an additional ten years. The first of ASORCNA’s post-release
conditions, the notification requirement, does not attach until 30 days prior to an
inmate’s release. Id. Thus, with respect to any post-release conditions that might
be imposed on him, the threat of injury is merely speculative at this point.
Next, to the extent that Waldman challenges ADOC officials’ application of
the notice requirements in the ADOC classification manual, his claim is barred by
the Eleventh Amendment. Such a challenge is not a procedural due process
challenge—it is a claim that state officials violated state law in carrying out their
official responsibilities. Claims of that nature are barred by the Eleventh
Amendment, even when, as here, they are brought into federal court as pendent
claims coupled with suits raising federal questions. Pennhurst State Sch. and
Hosp. v. Halderman, 465 U.S. 89, 120–21, 104 S. Ct. 900, 918 (1984). We thus
lack jurisdiction to consider that claim.
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As to Waldman’s challenge to his inmate classification as a sex offender
under the ADOC classification manual, Waldman does not have a liberty interest
in not being classified as a sex offender, because he was convicted of a sex offense
under Alabama law. Waldman cites our decision in Kirby to support his argument
that he has a liberty interest in not being classified as a sex offender, but Kirby’s
holding does not reach Waldman’s situation. In Kirby, we considered challenges
made by two prisoners to Alabama’s Community Notification Act (“CNA”), the
predecessor to ASORCNA. Kirby, 195 F.3d at 1287–88. One of those prisoners,
Robert Edmond, was convicted of attempted murder, but was classified as a sex
offender by the ADOC despite never having been convicted of a sex offense. Id.
His classification was based on previous charges of rape and sexual assault,
although neither resulted in a conviction. Id. Edmond argued that the
classification made him ineligible for minimum-custody classification—including
work-release and community-custody programs—and imposed a stigma that
imposed a significant hardship in relation to the ordinary incidents of prison life.
Id. He further asserted that he received neither notice nor an opportunity to be
heard prior to the classification. Id.
We concluded that Edmond had a liberty interest in not being branded as a
sex offender because the classification altered the conditions of confinement so
severely that it essentially exceeded the sentence imposed by the court. Id. at
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1288, 1291. We thus held that an “inmate who has never been convicted of a sex
crime is entitled to due process before the state declares him to be a sex offender.”
Id. We then remanded the case to the district court to determine whether Alabama
provided Edmond with enough pre-classification process to satisfy the
Constitution. Id.
The facts in Kirby reveal a critical distinction: the challenger in that case was
never convicted of a crime that was classified by law as a sex offense. In contrast,
in this case, Waldman was convicted of a crime that was statutorily categorized
under Alabama law as a sex offense at the time of his conviction and has remained
so ever since. Although the Alabama legislature did not enact ASORCNA until
2011, six years after Waldman’s conviction, ASORCNA’s predecessor statute had,
since 1998, also classified kidnapping of a minor as a sex offense. See Ala. Code §
15-20-21 (1998). Thus, ADOC officials’ classification of him as a sex offender,
and the ADOC classification manual they were following in doing so,2 were both
consistent with preexisting Alabama law.
Indeed, because first-degree kidnapping counted as a sex offense under
Alabama law when Waldman was convicted, our decision in United States v. Veal,
2
Although the ADOC classification manual was not included in the record now before us,
Waldman concedes that he was convicted of an offense defined as a sex offense by that manual
pursuant to ASORCNA. And since the classification manual is consistent with ASORCNA,
which in turn is consistent with its predecessor statute that was in place prior to Waldman’s
conviction, Waldman cannot argue that the ADOC classification manual or ASORCNA
amounted to a change in the law that deprived an interest he previously possessed in not being
classified as sex offender.
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322 F.3d 1275 (11th Cir. 2003) (per curiam), controls in this case. In Veal, we
held that a federal prisoner convicted of transporting or shipping child pornography
was properly subject to a special condition of supervised release requiring that he
register with the appropriate State Sexual Offender Registration Agency upon
release. Id. at 1278. Although Veal argued that both the record and his personal
history in no way demonstrated that he had had sexual contact with children, we
concluded that his reliance on Kirby was misplaced because he pled guilty to a
federal offense that was categorized as a sex crime under federal law at the time of
his conviction. Id. Thus, we concluded that no further process was owed him
before he was classified as a sex offender. Id.
Although Veal differed from this case in that it addressed a challenge to
post-release conditions rather than inmate-classification conditions, its rationale
applies equally in both contexts. There, as here, the challenger was convicted of a
crime the governing jurisdiction classified as a sex offense at the time of
conviction. As a result, in Veal and in this case, the only stage at which procedural
due process could be measured with respect to the challengers’ status as sex
offenders was the conviction stage. Any subsequent sex offender classifications
did not “deprive” the challengers of any constitutionally protected interests,
because those interests did not survive conviction.
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We therefore conclude that since Waldman was convicted of a crime that
constituted a sex offense under Alabama law at the time of his conviction, he was
not entitled to any additional process before being classified as a sex offender by
prison officials. The District Court therefore did not err in finding that Waldman
failed to raise a cognizable procedural due process claim. 3
b. Substantive Due Process
We now turn to Waldman’s substantive due process claim. A violation of
substantive due process occurs when an individual’s fundamental rights are
infringed, regardless of the fairness of the procedure. McKinney v. Pate, 20 F.3d
1550, 1556 (11th Cir. 1994) (en banc). The Fourteenth Amendment forbids the
government from infringing fundamental liberty interests at all, unless the
infringement is narrowly tailored to serve a compelling state interest. Washington
v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 2268 (1997). Analysis of a
substantive due process claim must begin by crafting a careful description of the
asserted right. Doe v. Moore, 410 F.3d 1337, 1343 (11th Cir. 2005). Then, we
must determine whether the asserted right is “deeply rooted in this Nation’s history
and tradition, and implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed.” Id. (quotations omitted)
3
The District Court did err, however, insofar as it recognized that Waldman had a liberty interest
in not being classified as a sex offender. One part of the Court’s opinion seems to suggest that
Waldman sufficiently identified such an interest. However, the Court never explained how this
was so, and it nevertheless dismissed Waldman’s complaint. Because the Court’s dismissal was
proper, this error did not affect the disposition of Waldman’s claim.
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(quoting Glucksberg, 521 U.S. at 720–21, 117 S. Ct. at 2268). We have previously
concluded, in the context of Florida’s sex offender registration statute, that the
right of a sex offender to refuse subsequent registration of his or her personal
information with state law enforcement and prevent publication of that information
on the state sex offender website is not “deeply rooted.” Id. at 1345. We noted
that a state’s publication of truthful information that is already available to the
public does not infringe the fundamental constitutional rights of liberty and
privacy. Id.
Where a fundamental liberty interest does not exist, substantive due process
nonetheless protects against the arbitrary and oppressive exercise of government
power. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845–46, 118 S. Ct. 1708,
1716 (1998). Executive action is arbitrary in a constitutional sense when it
“shocks the conscience.” Id. at 846, 118 S. Ct. at 1717. Only the most egregious
conduct is sufficiently arbitrary to constitute a substantive due process violation.
Tinker v. Beasley, 429 F.3d 1324, 1328 (11th Cir. 2005) (per curiam). For
example, conduct designed to injure someone in a fashion that is not justified by
any government interest may rise to the conscience-shocking level. Id. To wit, a
coach shocked the conscience when he, as a disciplinary measure, deliberately
struck a high school student’s eye with a heavy object with enough force to cause
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permanent blindness. Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d
1069, 1076 (11th Cir. 2000).
Here, the District Court did not err when it dismissed Waldman’s
substantive due process claim. To the extent that Waldman challenges
ASORCNA’s post-conviction conditions, that challenge is not ripe for the same
reasons discussed above. See Veal, 322 F.3d at 1278; Kirby, 195 F.3d at 1289.
With respect to the prison conditions imposed by the classification, those
conditions do not infringe any fundamental rights, and such conditions do not
shock the conscience. We have already determined that sex offender registration
laws do not infringe upon fundamental rights, and the same reasoning applies to
inmate classification. See Moore, 410 F.3d at 1344–45. Moreover, although
Waldman’s offense did not involve sexual contact with a minor, the prison
conditions imposed on him, like the requirement that he attend sex offender classes
or therapy and his ineligibility for work release, further the goal of protecting
children and are not so egregious as to “shock the conscience.” Waldman was
convicted of kidnapping a minor, and he admits that he did so for ransom or to use
the child as a shield; he can hardly argue that the State shocks the conscience by
imposing restrictions on his release in the name of protecting children. See Tinker,
429 F.3d at 1328 (stating that conduct must be not be justifiable by any
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government interest in order to rise to the “conscience shocking” level necessary to
amount to a substantive due process violation).
In sum, we conclude that the District Court did not err in concluding that
Waldman did not raise a cognizable substantive due process claim.
c. Ex Post Facto Clause
The Ex Post Facto Clause prohibits imposition of laws that punish acts that
were not punishable when committed, or laws that increase the punishment for an
act after that act has been done. United States v. W.B.H., 664 F.3d 848, 852 (11th
Cir. 2011). The ex post facto bar applies only to criminal laws, however, not to
civil regulatory regimes. Id.
Here, we consider Waldman’s arguments sequentially and conclude that the
District Court did not err in dismissing his ex post facto claim. First, with respect
to his challenge of ASORCNA’s post-release conditions like the travel restriction,
that challenge is not ripe for the same reasons already discussed. See Veal, 322
F.3d at 1278; Kirby, 195 F.3d at 1289.
Next, with respect to his argument that the classification renders him
ineligible for parole and thus changes the original terms of his sentence, Waldman
has sued the wrong defendants and therefore lacks standing to make that challenge
in this case. In order to establish standing, a plaintiff must show that (1) there is an
“injury in fact,” (2) the injury is causally traceable to the defendant, and (3) the
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plaintiff’s injury can be redressed by a favorable decision. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136 (1992). Else, the case is not
a “case or controversy” under Article III and federal courts lack jurisdiction over it.
Id. at 560, 112 S. Ct. at 2136.
The officials named in Waldman’s suit do not set the standards for parole
eligibility, nor does the ADOC classification manual. Rather, ASORCNA does.
See Ala. Code § 15-22-27.3 (denying parole eligibility to anyone convicted of a
“sex offense” involving a child). Nor do they make parole decisions with respect
to individual inmates. That authority is vested in the Alabama Board of Pardons
and Paroles. Id. § 15-22-36(a). Thus, even if Waldman were to prevail against the
named officials, they would not be able to redress his injury. The proper defendant
with regard to Waldman’s ex post facto challenge of the denial of his parole
eligibility, or with regard to how his “S” classification will be treated by parole
officials, is the Board of Prisons and Paroles, not the officials named in his
complaint. We thus lack jurisdiction over that claim.
Finally, with respect to his argument that the prison conditions imposed on
him as a result of his classification constitute ex post facto punishment, the District
Court did not err in finding that he did not state a valid ex post facto claim.
Although Waldman’s classification was changed years after his incarceration
began, he did not allege that the ADOC classification manual changed the
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classification protocol previously in place. Even assuming it did, the manual
simply changed the State’s classification protocol to reflect longstanding Alabama
statutory law, which classified child kidnapping as a “sex offense” years before
Waldman’s conviction. He thus cannot argue that his reclassification punished
previously unpunishable conduct, or that it increased a preexisting punishment.
In any event, Waldman concedes that the ADOC classification manual was
implemented pursuant to ASORCNA, and ASORCNA’s stated purpose is civil, not
punitive, in nature. See id. § 15-20A-2(5) (“The Legislature declares that its intent
in imposing certain registration, notification, monitoring, and tracking
requirements on sex offenders is not to punish sex offenders but to protect the
public and, most importantly, promote child safety.”). When a legislature
expressly states its intent, only the “clearest proof” will suffice to show that a
statute’s true intent is punitive. Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140,
1147 (2003). Moreover, a state can make a reasonable categorical judgment that
conviction of specified crimes should entail particular regulatory consequences.
Id. at 103, 123 S. Ct. at 1153.
To show that a regulatory scheme with a stated civil purpose is so punitive
as to rise to the level of an ex post facto violation, we consider primarily five
factors: whether the scheme “has been regarded in our history and traditions as a
punishment”; whether it “imposes an affirmative disability or restraint”; whether it
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“promotes the traditional aims of punishment”; whether it “has a rational
connection to a nonpunitive purpose”; and whether it “is excessive with respect to
[its stated] purpose.” Id. at 97, 123 S. Ct. at 1149.
Here, taken as true, none of the allegations in Waldman’s complaint would
provide the “clearest proof” necessary to override the presumption that Alabama’s
stated civil intent to protect children is actually punitive. See Windwalker v.
Governor of Ala., 579 F. App’x 769, 772 (11th Cir. 2014) (per curiam) (concluding
ASORCNA’s post-release restrictions are rationally connected with its stated civil
purpose to protect minors). Since any challenge to ASORCNA’s post-release
requirements are not ripe in this case, we must review only the confinement
conditions imposed by the ADOC classification manual.
With respect to those confinement conditions, examination of the above
factors reveals that many of them cut against Waldman. We specifically note the
factor the Supreme Court has identified as the most “significant” one in the ex post
facto analysis: rational connection. Smith, 538 U.S. at 102, 123 S. Ct. at 1140.
Here, a rational connection clearly exists between Alabama’s stated goal of
protecting minors and the minimum-custody restrictions and rehabilitation classes
imposed as a result of Waldman’s “S” classification. The connection need not be
perfect. A statute does not have a punitive purpose “simply because it lacks a
close or perfect fit with the nonpunitive aims it seeks to advance.” Id. Thus, we
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conclude that the allegations in Waldman’s complaint failed to demonstrate that
the ADOC classification manual’s custody restrictions are so restrictive as to
override ASORCNA’s stated civil purpose. Waldman thus did not raise a
cognizable ex post facto claim.
III.
For the foregoing reasons, we conclude that Waldman did not state a
cognizable claim upon which relief could be granted. Therefore, the District Court
did not abuse its discretion in dismissing his claim.
AFFIRMED in part and DISMISSED in part for lack of jurisdiction.
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