USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-2039

RICHARD RILEY, ET AL.,

Plaintiffs, Appellants,

v.

LARRY E. DUBOIS,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Stahl and Lynch, Circuit Judges.
______________

____________________

Christopher Masonoff, Sr., John Tarrant

__________________________ ____________

and Charles Mitchell

_________________

brief pro se.

Nancy Ankers White,
____________________

Special

Assistant

Attorney

General,

William D. Saltzman, Department of Correction, on brief for appelle

___________________

____________________

October 14, 1997

____________________

Per Curiam.
___________

In 1994, the Massachusetts Commissioner of

Correction

("the

promulgated a

program"),

treatment for

prior

see 103
___

of

446.07.

446,

"with a

involvement

id.
___

offender treatment"

DOC

those inmates

history

offenses,"

"sex

in

With

designed

to provide

present indication

the

program

commission

sequential

of

or

sex

series

of

treatment phases, first at the medium-security level and then

in minimum-security and pre-release

intended to

offer "a continuum

inmate with such

settings, the program is

of service from the

a background is committed, until

released to the community, and hopefully beyond."

the

program

is

participate (or who

stages)

voluntary,

any

inmate

has not completed the

is barred from moving beyond

who

time an

he/she is

Id.
___

While

declines

to

initial treatment

minimum security.

See
___

Dominique v.
_________

Weld, 73
____

F.3d 1156, 1161

n.8 (1st

Cir. 1996)

(discussing program).

The plaintiffs here

to

participate

retribution

in the

program,

from other

status become known.

medium

are four inmates who

security

with

Plaintiff Tarrant further

parole

his

as a result,

parole reserve

plaintiffs committed

allegedly out

prisoners should

They

have declined

of

fear of

their sex-offender

have accordingly been confined to

consequent

loss

of

privileges.

complains that he has

been denied

while plaintiff Masonoff

date has

been

rescinded.

their offenses before

-2-

protests that

All of

the

the program

was

introduced.

"cleared"

civil

Three

of

them

were

allegedly

screened

and

under an earlier regime calling for the indefinite

commitment of "sexually dangerous persons."

See Mass.
___

G. L. c. 123A.

In this pro se action under 42 U.S.C.

insist that applying

a variety of

1983, plaintiffs

the program to them is impermissible on

constitutional and other grounds.

Declaratory

and

sought;

the

Commissioner of Correction is the sole named defendant.

From

an

injunctive

relief

and

damages

are

adverse award of summary judgment, plaintiffs now appeal.

We affirm.

Extended

discussion

is

unnecessary.

principal contention, which underlies

is that it is improper

they had

view,

many of their

claims,

to subject them to the program

been cleared under

the program

Plaintiffs'

the c. 123A

is simply

regime.

"mirror image"--a

In

after

their

revamped

version--of the c. 123A system, which could not be applied to

them absent some

intervening sexual misconduct.

that

violates

doing

protection,

so

ex post facto

notions

of

due

law, res judicata

They argue

process,

equal

and collateral

estoppel.

We

disagree.

than a common purpose of

The two regimes

share nothing more

treating sex offenders.

Whereas c.

123A involves involuntary and indeterminate civil

commitment

based

upon a judicial

finding of sexual

dangerousness, the

program involves a voluntary treatment scheme that can affect

-3-

prisoner's classification

level but

underlying criminal sentence.

determined not

does

not alter

That one has

to be a "sexually dangerous

his

previously been

person" under c.

123A thus does not preclude subjecting him to the program.

Applying

violate

access

the program

due process.

to

minimum

to plaintiffs does

not otherwise

Imposing limitations on

security

entails

no

a prisoner's

"atypical

significant hardship" under

Sandin v. Conner, 515

______
______

484

Dominique, 73
_________

(1995).

See,
___

e.g.,
____

F.3d

and

U.S. 472,

at

1158-61

(finding prisoner's removal from work release and restriction

to medium security

to be permissible under Sandin).

______

due process implicated

by the denial

of parole, see,
___

Greenholtz v. Nebraska

Penal Inmates, 442 U.S.

Nor is

e.g.,
____

1, 7 (1979),

__________

or by

_______________________

the rescission

of a parole

reserve date,

see, e.g.,
___ ____

Jago v. Van Curen, 454 U.S. 14 (1981) (per curiam); Lanier v.

____
_________
______

Massachusetts Parole Bd.,

________________________

Plaintiffs' equal

protection

offenders are not a

Gunter, 966 F.2d

______

v. Shimoda, 905
_______

Martel
______

curiam).

(rescript).

also misplaced;

552, 555 (10th Cir. 1992),

and a treatment

rationally related to the legitimate

F. Supp. 813, 819

does

sex

Lustgarden v.
__________

protecting public safety, see,

___

v. Feidovich,
_________

Nor

claim is

suspect class, see, e.g.,

___ ____

program such as this is

state interest in

396 Mass. 1018 (1986)

14 F.3d

the

(D. Haw. 1995); see also

_________

1, 2-3

program

e.g., Neal
____ ____

(1st Cir.

constitute

1994) (per

bill

of

-4-

attainder.

See, e.g., Schafer v. Moore, 46 F.3d 43, 45

___ ____ _______
_____

(8th

Cir. 1995).

As to whether

facto violation

the program might

by resulting

in the

constitute an ex

deferral or

post

denial of

parole (or of

view.1
1

At

predating

U.S.

a parole hearing), we need

least

one court

has

held,

express no general

albeit in

California Dep't of Corrections

________________________________

499 (1995),

that conditioning

case

v. Morales,
_______

parole

on an

514

inmate's

participation in a sex offender treatment program can violate

the Ex Post Facto Clause.

1214, 1215-16

See Parton v. Armontrout, 895 F.2d

___ ______
__________

(8th Cir.

1990); cf. Knox

___ ____

v. Lanham,
______

895 F.

Supp. 750, 756-58 (D. Md. 1995) (invalidating restrictions on

parole eligibility for

722 F. Supp. 558, 560

"lifers").

claim that this

v. Eaves,
_____

(E.D. Mo. 1989), appeal dismissed, 902

________________

F.2d 1574 (8th Cir. 1990).

direct

Contra Russell
______ _______

Yet plaintiffs have presented no

is what

happened here;

indeed, the

interplay

between the

unexplained on

their

program

the present

and

record.

the

Nor,

parole

system

in the

is

course of

ex post facto discussion, have they referred to parole

in anything

appeal.

more than

Plaintiffs

post facto violation.

oblique fashion--either

bore the burden

below or

of establishing

on

an ex

See Morales, 514 U.S. at 510 n.6.

___ _______

It

____________________

1
1

Contrary

decision does
"foreclose" it.
was there

to

defendant's

not appear

to address this

There is no

voiced regarding

suggestion,

our

issue, much

indication that any

the program's

eligibility.

-5-

Dominique
_________
less

complaint

effect on

parole

suffices

here to conclude

that the minimal

facts they have

adduced and the perfunctory arguments they have advanced fall

short of doing so.

Plaintiffs'

reasons

remaining

recited by

the

district

require no separate comment).

Affirmed.
_________

claims

are

court

rejected

(or

for

because

the

they

-6-