## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 12 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEVIN CHARLES GWINN,

Plaintiff-Appellant,

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

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. No. 99-WM-308)

Megan Curtiss and Stephen Cribari, University of De nver College of Law, Denver, Colorado (Robert Foster, University of Denv er College of Law, with her on the briefs), for the Plaintiff-Appellant. Joseph P. Sanchez, Assistant Attorney General, Stat e of Colorado (Ken Salazar, Attorney General of Colorado with him on the briefs ), for the DefendantsAppellees.* The Honorable Louis F. Oberdorfer, United States District Judge for the

District of Columbia, sitting by designation. -2- Before HENRY , McKAY , Circuit Judges, and OBERDORFER , District Judge. *

HENRY, Circuit Judge.

Kevin Charles Gwinn appeals the district court’s or der granting summary judgment against him and in favor of the defendant Colorado Department of Corrections (CDOC) officials on his 42 U.S.C. § 198 3 civil rights claim. Mr. Gwinn asserted various claims arising out of his cl assification as a sexual offender. In particular, Mr. Gwinn alleged that CD OC officials: (1) violated his rights under the Due Process Clause of the Fourteenth Amendment by failing to provide him with an adequate hearing before classif ying him as a sex offender, requiring him to register as a sex offender, and re voking his parole for failing to participate in a treatment program for sex offender s; (2) violated his Fifth Amendment rights by denying him the opportunity to earn good time credits at a higher rate after he refused to participate in a tr eatment program for sexual offenders; (3) violated the Ex Post Facto Clause byapplying a Colorado statute enacted after the alleged commission of the sexual offense; (4) violated the Eighth Amendment by classifying him as a sex offend er and requiring him to-3-

register as one; (5) violated his First Amendment r ights by refusing to allow him to object to his classification as a sex offender; and (6) violated his rights under the Equal Protection Clause of the Fourteenth Amend ment by treating him differently than other inmates convicted of similaroffenses. For the reasons set forth below, we conclude that a s to Mr. Gwinn’s due process challenge to his classification as a sex of fender while incarcerated, the district court properly granted summary judgment to the defendant CDOC officials. However, we further conclude that the d istrict court did not adequately consider Mr. Gwinn’s due process claims insofar as they concern his classification as a sex offender upon release from prison. Accordingly, as to that claim we vacate the district court’s grant of summa ry judgment and remand the case for further proceedings. As to Mr. Gwinn’s Fifth Amendment, Ex Post Facto, E ighth Amendment, First Amendment, and Equal Protection claims, we ag ree with the district court that the defendants are entitled to summary judgmen t.

I. BACKGROUND Viewed in the light most favorable to him, see Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999), the record indicates that in 1987, Mr. Gwinn was charged in Colorado state-4-

court with robbery, aggravated robbery, and sexual assault. He pleaded guilty to robbery, and the sexual assault charge was dismisse d. The court sentenced him to ten years’ imprisonment on the robbery charge. In 1990, the CDOC informed Mr. Gwinn that, as a res ult of the sexual assault charge, he would be required to complete a treatment program for sex offenders. One of the requirements of the treatmen t program was that Mr. Gwinn admit that he had committed the sexual assault char ged in the 1987 case. Initially, Mr. Gwinn stated that he had committed t he assault. He then completed the first phase of the treatment program. He began the second phase of program, but CDOC officials removed him from the pr ogram because of two violations of prison disciplinary rules. In 1995, prison officials released Mr. Gwinn on par ole. According to Mr. Gwinn, his parole officer, the defendant Linda Fish er, informed him that he was required to register with the Denver Police Departm ent as a sex offender and attend a community treatment program or he would be returned to prison for violation of his parole. Mr. Gwinn alleges that he was denied employment when background checks revealed that he had been classif ied as a sex offender. Mr. Gwinn further alleges that in 1996, a Colorado court convicted him of possession of a controlled substance and ordered hi m to participate in a drug treatment program. According to Mr. Gwinn, he leftthe program after learning-5-

that his classification as a sex offender made him ineligible to participate. In 1998, Mr. Gwinn began serving a sentence for pos session of a controlled substance. He was released on parole in February 2 000, and one of the conditions of his parole was to participate in a treatment pro gram for sex offenders. Mr. Gwinn alleged that his parole was revoked several m onths later, in part because he refused to participate in the treatment program. On July 20, 2000, the Department of Corrections hel d an administrative hearing to determine whether Mr. Gwinn, then in pri son again, should be classified as a sex offender. Mr. Gwinn chose not to attend the hearing, but he submitted a written statement in support of his pos ition that he should not be so classified. The hearing panel reviewed Mr. Gwinn’s written statement and the preinvestigation report from the 1987 conviction, w hich included the summary of an interview with the victim of the alleged sexual assault. The panel determined that classification of Mr. Gwinn as a sex offender was appropriate. Mr. Gwinn filed this pro se civil rights action see king an injunction directing prison officials not to classify him as asex offender, as well as damages. The district court adopted the report an d recommendation of the magistrate judge and granted the defendants’ motion for summary judgment. Although he initially proceeded pro se in this appe al, this court subsequently appointed counsel for Mr. Gwinn. Appo inted counsel has filed-6-

supplemental briefs addressing the due process and Fifth Amendment claims. On January 21, 2003, during the pendency of this ap peal, Mr. Gwinn was released from incarceration.

DISCUSSION On appeal, Mr. Gwinn challenges the district court’ s grant of summary judgment as to all of his claims. We review the gr ant of summary judgment de novo, applying the same standard as the district co urt pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. See United States v. AMR Corp. , 335 F.3d 1109, 1113 (10th Cir.2003). Summary judgment is ap propriate if “the pleadings, depositions, answers to interrogatories, and admiss ions on file, together with the affidavits, if any, show that there is no genuine i ssue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We view the record in the light most fav orable to the nonmoving party.
See AMR Corp. , 335 F.3d at 1113.

A. Due Process Claim The Fourteenth Amendment provides that citizens maynot be deprived of life, liberty, or property without due process. Se e Chambers v. Colorado Dep’t of
Corr. , 205 F.3d 1237, 1242 (10th Cir. 2000). Our prior decisions have-7-

acknowledged that while “[f]inding . . . a [procedu ral due process] violation in the prison setting is particularly daunting, id. , “‘a prisoner is not wholly stripped of constitutional protections when he is imprisonedfor crime.’” Id . (quoting Wolff v. McDonnell , 418 U.S. 539, 555-56 (1974)); see also Wolff , 418 U.S. at 556 (stating that “[t]here is no iron curtain drawn between the Constitution and the prisons of this country”). Here, it is Mr. Gwinn’s liberty interests that are at issue: he alleges that the defendants deprived him of those interests without affording him the procedural protections required by the Due Process Clause. Inparticular, Mr. Gwinn argues that during his incarceration, CDOC officials class ified him as a sex offender when he had not been convicted of a sexual offense and when he asserted that he had not committed the sexual assault charged in the 1987 case. He further contends that his parole officer, the defendant Lin da Fisher, required him to register as a sex offender when he had not been con victed of a sex offense, also depriving him of a liberty interest without an adeq uate hearing and thereby violating his procedural due process rights. “‘Where a person’s good name, reputation, honor, orintegrity is at stake because of what the government is doing to him,’ a protectible liberty interest may be implicated that requires procedural due proc ess in the form of a hearing to clear his name.” Jensen v. Redevelopment Agency of Sandy City , 998 F.2d 1550,2 See, e.g. , Cannon v. City of West Palm Beach , 250 F.3d 1299, 1302 (11th

Cir. 2001); Cutshall v. Sundquist , 193 F.3d 466, 479 (6th Cir. 1999); WMX Techs., Inc. v. Miller , 197 F.3d 367, 376 (9th Cir. 1999); Greenwood v. N ew York , 163 F.3d 119, 124 (2d Cir. 1998).-8- 1558 (10th Cir. 1993) (quoting Wisconsin v. Constantineau , 400 U.S. 433, 437 (1971)). Damage to one’s reputation alone, however , is not enough to implicate due process protections. See Paul v. Davis , 424 U.S. 693, 701 (1976) (stating that “reputation alone, apart from some more tangible in terests such as employment, is neither ‘liberty’ or ‘property’ by itself sufficien t to invoke the procedural protection of the Due Process Clause”); McGhee v. D raper , 639 F.2d 639, 643 (10th Cir. 1981) (“[S]tigmatization or reputational damage alone, no matter how egregious, is not sufficient to support a § 1983 cause of action.”). Instead, a plaintiff asserting that the government has violated the Due Process Clause by impugning his or her “good name, reputation, honor, or integrity,” Jensen , 998 F.2d at 1558, must demonstrate that: (1) the government made a statement about him or her that is sufficien tly derogatory to injure his or her reputation, that is capable of being proved fal se, and that he or she asserts is false, and (2) the plaintiff experienced some gover nmentally imposed burden that “significantly altered [his or] her status as a matter of state law.” Paul , 424 U.S. at 710-11. This is sometimes described as the “sti gma plus” standard. 2 Accordingly, Mr. Gwinn’s due process claims require us to apply that-9-

standard to his classification as a sex offender du ring his incarceration and to the defendant Fisher’s allegedly requiring him to regis ter as a sex offender while on parole.

1. Classification as a Sex Offender During Incarce ration As we have noted, the CDOC has classified Mr. Gwinnas a sex offender since 1990 and has required him to participate in t reatment programs for sex offenders. The CDOC based its classification upon the presentence report in a criminal case filed in Colorado in 1987. In that e arlier case, Mr. Gwinn was initially charged with committing a first-degree se xual assault in September 1986, but that charge was dropped as part of a plea agree ment under which Mr. Gwinn pleaded guilty to robbery. The presentence report in that case contains an account of a sexual assault allegedly committed by Mr. Gwin n. See Rec. doc. 43, Attach. (Defendants’ Motion for Summary Judgment, quoting p resentence report). According to the CDOC, Mr. Gwinn initially admittedthat he had committed the alleged 1986 sexual assault. See id. However, Mr. Gwinn now denies that he committed the assault and alleges th at the CDOC did not provide him with a constitutionally adequate opportunity to rebut the account of the alleged sexual assault set forth in the presentence report in the state court case. As the magistrate judge acknowledged, this procedur al due process claim is-10-

governed by our decision in Chambers , 205 F.3d at 1242-44. There, some seven years after the plaintiff inmate began serving his sentences for aggravated robbery and attempted theft, CDOC officials directed him to participate in a treatment program for sex offenders, even though he had “neve r admitted to or been convicted of a sex offense.” Id. at 1240. Like Mr. Gwinn’s classification, the classification of Mr. Chambers as a sex offender wa s based on a victim’s account contained in a written report. See id . at 1238-39 (discussing the victim’s account in a police report). As a result of the classification, the CDOC reduced the monthly rate at which plaintiff accrued good time c redits. See id. at 1239. Like Mr. Gwinn, Mr. Chambers alleged that prison officia ls had violated his procedural due process rights by relying on the report to clas sify him a sex offender without first providing him with an opportunity to contest the report’s allegations. We agreed with Mr. Chambers, noting that it was the loss of the previously granted opportunity to earn good time credits at a higher level, combined with his classification as a sex offender, that implicated aliberty interest. Id. at 1242. Mr. Chambers had thus established that ( 1) CDOC officials had made a statement about him or her that was sufficiently derogatory to injure his or her reputation, that was capable of being proved false, and that he asserted was false, and that (2) he had experienced some governmentallyimposed burden that “significantly altered [his or] her status as a matter of state law.” Paul , 424 U.S.-11-

at 710-11. Accordingly, we held that Mr. Chambers was entitledto an injunction preventing the CDOC from withholding earned time cr edit because he refused to admit to being a sex offender. Id. at 1243. However, “because the state of the law was not clearly established when these actions were taken,” id. , we further concluded that the defendant CDOC officials were en titled to qualified immunity from his claim for damages. This court issued Chambers on March 7, 2000—after Mr. Gwinn filed this lawsuit and while he was still incarcerated. Follo wing publication of the Chambers opinion, CDOC officials determined that they would provide Mr. Gwinn with a hearing at which he could contest his classification as a sex offender. In July 2000, CDOC officials served Mr. Gwinn with a notice explaining that “as a result of a recent court deci sion [Chambers] [the C]DOC will offer the opportunity for an Administrative Re view to any offender who has never been convicted of a sex offense . . . but has a history of sexual behavior that may justify a sex offender designation.” Rec. doc 71 (Ex. A) (Notice of Right to an Administrative Review, dated July 17, 2000). Th e notice proceeded to set forth the section of the presentence report from th e 1987 criminal case in which a witness reported that Mr. Gwinn had sexually assaul ted her. See id. After receiving the notice, Mr. Gwinn submitted a w ritten statement-12-

indicating that he had not committed a sexual assau lt. Mr. Gwinn also declared that due to a bipolar disorder, he did not wish to appear in person before the hearing panel assigned to his case but instead woul d rely on his written statement. A three-member CDOC Hearing Panel convened on July 20, 2000. One of the members of the panel was Meryl Dorhman, a CDOC counselor whom Mr. Gwinn had named as a defendant in this case. Each of the panel members signed a declaration that they would not disclose any conf idential information regarding Mr. Gwinn’s medical records or his classification a s a sex offender unless such disclosure was ordered by a court. After consideri ng the presentence report from the 1987 case and Mr. Gwinn’s statement, the panel issued written findings that: (1) Mr. Gwinn had “behaved in a sexually violent an d abusive manner;” (2) his behavior “could threaten the safety of the public upon release, or the safety of prison staff” because he had “not offered any credi ble explanation that would avoid the conclusion that [he had] behaved in a sex ually violent and/or abusive manner.” Id. at Ex. E (Decision on Sex Offender Designation, dated July 24, 2000). Mr. Gwinn now argues that in spite of this opportu nity for a hearing, CDOC officials violated his due process rights. He contends that the defendant prison officials applied an improper presumption–th at he was a sex offender–and required him to rebut it. He also argues that the defendants should have provided-13-

him with an attorney. In support of that contentio n, he invokes his bipolar disorder, which he states made it impossible for hi m to provide an effective defense and adds that even though CDOC officials of fered to provide him with an inmate representative, this was not an adequate pro tection because inmates cannot talk confidentially with other inmates about sex of fenses. See Aplt’s Opening Pro Se Br. at 19 (“It is taboo for an inmate accused of a sexual offense to speak to other inmates about the offense.”). Finally, Mr. G winn argues that because the chairman of the panel—Mr. Dorhman—is a defendant inthis case, the Hearing Panel was biased. See id. at 20. Mr. Gwinn’s challenges are not expressly resolved b y our opinion in Chambers . There, because the plaintiff inmate received no hearing whatsoever, we were not required to address the particular proc edural protections that must be provided to inmates who have never been convicted o f a sex offense before prison officials may classify them as sex offenders in a m anner that deprives them of a liberty interest. However, in Chambers we relied on the Ninth Circuit’s decision in Neal v. Shimoda , 131 F.3d 818 (9th Cir. 1997). There, the court held that an inmate who has not previously been convicted of a sex offense may be classified as a sex offender for purposes of a prison treatment programonly if the prison affords him the procedural protections to which prisoners facin g disciplinary sanctions-14-

involving liberty interests are generally entitled. See id . at 830-31. Here, because there is no dispute that Mr. Gwinn’s classificationas a sex offender reduced the rate at which he could earn good time credits and i mplicated a liberty interest, we conclude that Mr. Gwinn, like the plaintiff in Cham bers , was entitled to those same procedural protections. Those procedural requirements are set forth in the Supreme Court’s decision in Wolff

, 418 U.S. 539: notice of the charges, an opportun ity to present witnesses and evidence in defense of those charges, and a written statement by the factfinder of the evidence relied on and the reason s for the disciplinary action.
See Neal , 131 F.3d at 830 (adopting these requirements for a hearing regarding the classification of an inmate as a sexual offende r); Mitchell v. Maynard , 80 F.3d 1433, 1445 (10th Cir. 1996) (discussing the require ments for prison disciplinary hearings under Wolff

). Additionally, in order to comport with due proc ess, there must be some evidence to support the hearing panel’ s decision id. , and the decisionmaker must be impartial. See Wolff , 418 U.S. at 592 (Marshall, J., concurring) (stating that “an impartial decisionmak er is a fundamental requirement of due process” that is “fully applica ble” to disciplinary hearings for prisoners); Smith v. Maschner , 899 F.2d 940, 947 (10th Cir. 1990) (recognizing due process requirement of factfinder’s neutrality in prison disciplinary context and citing Wolff

)).3 We emphasize that the Hearing Panel’s conclusion that Mr. Gwinn “has

behaved in a sexually violent and abusive manner,” Rec. doc 71, Ex. E, will have no preclusive effect in subsequent proceedings outs ide the prison context involving different procedural and evidentiary stan dards. See Colon v. Coughlin , 58 F.3d 865, 869 (2d Cir. 1995) (noting that given the procedural laxity involved, “[w]e think there is a substantial question as to w hether, under New York law, collateral estoppel should ever apply to fact issue s determined in a prison (continued...) -15- In light of the Wolff

requirements, we conclude that Mr. Gwinn’s argument that the Hearing Panel applied an improper presumpt ion lacks merit. As we have noted, the record indicates that the Hearing Panel relied on a detailed written account from the victim of the alleged sexual assau lt and that Mr. Gwinn himself presented no more than a general written denial of the allegations. The Supreme Court has observed that, in ascertaining whether a factfinder’s decision in a prison disciplinary hearing is sufficiently support ed by the evidence, a reviewing court need not undertake an “examination of the ent ire record, independent assessment of witnesses’ credibility or weighing of the evidence. Instead, the relevant conclusion is whether there is any evidenc e that could support the conclusion reached by the disciplinary board.” Sup erintendent, Mass. Corr. Inst. v. Hill , 472 U.S. 445, 455-56 (1985). Moreover, the decis ion can be upheld even if the evidence supporting the decision is “meager. ” Id. at 457. In light of the statement in the presentence report that Mr. Gwinn committed a sexual assault, we conclude that the Hearing Panel did not violate his due process rights by applying an improper presumption. 33 (...continued)

disciplinary hearing”); Johnson v. Freeburn , 144 F.Supp.2d 817, 823-24 (E.D. Mich. 2001) (holding that prison disciplinary heari ngs are not afforded preclusive effect and observing that “defendants in criminal c ases are cloaked with substantial procedural protections--including a pro hibition on the use of hearsay statements by confidential informants--most of whic h are not applicable in a prison disciplinary proceeding”); see generallyMatosantos Commercial Corp. v. Applebee’s Int’l., Inc. , 245 F.3d 1203, 1212 (10th Cir. 2001) (noting that “[c]ollateral estoppel is also not appropriate when a party in a subsequent suit faces a less demanding burden of proof than the bur den of proof in the prior litigation”). -16- Similarly, the fact that CDOC officials did not pro vide Mr. Gwinn with an attorney for the hearing did not violate his due pr ocess rights. Because prisoners do not “have a right to either retained or appointe d counsel in disciplinary hearings,” Wolff

, 418 U.S. at 570, Mr. Gwinn was not entitled to an attorney here. See also Wallace v. Tilley , 41 F.3d 296, 301 (7th Cir. 1994) (observing that a prisoner “had no right to have counsel present atthe disciplinary hearings”). More troubling is Mr. Gwinn’s allegation that he di d not receive an impartial hearing because the defendant Mr. Dorhman was a member of the Hearing Panel. An impartial decisionmaker is a fun damental requirement of due process that is “fully applicable” in the prison c ontext. Wolff , 418 U.S. at 592 (Marshall, J., concurring); see also Malek v. Camp , 822 F.2d 812, 815-17 (8th Cir. 1987) (reversing district court’s dismissal of prisoner’s claim that the personal bias of the chairman of a disciplinary tri bunal violated his due process rights when the chairman was involved in a separate proceeding as a nominal-17-

defendant). That Mr. Dorhman was named as a defend ant in this case prior to his appointment to the Hearing Panel charged with the r esponsibility of determining whether Mr. Gwinn should be classified as a sex off ender raises at least the possibility that the Hearing Panel was not fair and impartial. See generallyWolff , 418 U.S. at 592 (Marshall, J., concurring) (“Due pr ocess is satisfied as long as no member of the disciplinary board has become involve d in the investigation or presentation of the particular case or has any othe r form of personal involvement in the case.”); Hicks v. City of Watonga , 942 F.2d 737, 748 (10th Cir. 1991) (concluding that the plaintiff could establish a du e process claim by showing bias on the part of only one member of the tribunal but further concluding that only the allegedly biased member could be held liable fo r damages in a 42 U.S.C. § 1983 action). Nevertheless, “because honesty and integrity are pr esumed on the part of a tribunal, there must be some substantial countervai ling reason to conclude that a decisionmaker is actually biased with respect to fa ctual issues being adjudicated.” Tonkovich v. Kan. Bd. of Regents , 159 F.3d 504, 518 (10th Cir. 1998) (internal quotation marks omitted). “‘The mere exposure to e vidence presented in nonadversary investigative procedures is insufficie nt in itself to impugn the fairness’ of a later adversary hearing.” Mangels v . Pena , 789 F.2d 836, 838 (10th Cir. 1986) (quoting Withrow v. Larkin , 421 U.S. 35, 55 (1975)). Instead, “[d] ue-18-

process is violated only when ‘the risk of unfairne ss is intolerably high’ under the circumstances of a particular case.” Id. (quoting Withrow , 421 U.S. at 58). Accordingly, allegations of bias such as those dire cted against Mr. Dorhman by Mr. Gwinn shoud be decided on a case-by- case basis. See Redding v. Fairman , 717 F.2d 1105, 1112-13 (7th Cir. 1983) (rejecting categorical rule that “disciplinary committee members ‘at least shou ld not be defendants in pending lawsuits for damages instituted by the verypersons over whom the committee sits in judgment’” and holding that the d istrict court should “evaluate the circumstances involved in the lawsuits and dete rmine whether disqualification is required,” considering among other factors “the extent of the Committee members’ personal involvement in [the] lawsuits”) ( quoting district court’s ruling); see also Malek v. Camp , 822 F.2d 812, 815-17 (8th Cir. 1987) (adopting case-by-case approach to allegations of bias based on decisionmaker’s being a defendant lawsuits filed by the prisoner). Moreover, as the Eighth Circuit has noted, “the cou rts should be alert not to sustain routine or pro forma claims of disqualification.” Malek , 822 F.2d at 817. Careful scrutiny of disqualification claims is grou nded in legitimate considerations of prison administration. “From a p ractical standpoint, requiring each staff member who is the subject of a separate lawsuit to disqualify himself from sitting in judgment of that inmate would heavi ly tax the working capacity of-19-

the prison staff.” Redding , 717 F.2d at 1113. Because prisoners may file lawsuits naming multiple prison officials defendant s, a per se disqualification rule could “vest too much control in a prisoner to deter mine the [hearing panel’s] make-up.” Id. Here, adopting this case-by-case approach, our revi ew of the record indicates that the magistrate judge properly consid ered the particular circumstances regarding Mr. Dorhman’s involvement i n this lawsuit and his participation in the July 20, 2000 hearing and prop erly concluded that Mr. Gwinn had not presented sufficient evidence of bias to wi thstand summary judgment. Mr. Gwinn’s complaint alleges that Mr. Dorhman was a mental health therapist at the Fremont Correctional Facility and that, in 1998 , Mr. Dorhman looked at Mr. Gwinn’s file, was aware that Mr. Gwinn had never be en convicted of a sexual offense, and “told [Mr. Gwinn] he was a sex offende r.” Rec. doc. 3, at 5 (Complaint, filed Feb. 17, 1999). That alleged st atement, however, is undisputedly true in an important sense: at that t ime, Mr. Gwinn had already been classified as a sex offender by CDOC officials and had been required to participate in treatment programs. CDOC records in dicated that at one point, Mr. Gwinn had even admitted to committing a sexual assa ult, though he later retracted that admission. Standing alone, the fact that Mr. Dohrman may have told Mr. Gwinn that he was a sex offender in 1998, does not indicate that he was incapable-20-

of fairly weighing the evidence presented at the Ju ly 2000 hearing and determining whether Mr. Gwinn had actually committe d the alleged assault. See Mangels , 789 F.2d at 837 (observing that an administrative adjudicator’s mere exposure to evidence presented in nonadversary inve stigative procedures is insufficient” to establish bias). Moreover, as the magistrate judge observed, there i s evidence that Mr. Dorhman took additional measures to protect Mr. Gwi nn’s due process rights. After learning of Mr. Gwinn’s assertion that his bi -polar disorder would not allow him to contest the evidence against him in person, he advised Mr. Gwinn that he would be allowed to choose an inmate representative . See Rec. doc. 71, Ex. D. In summary, we discern no error in the district cou rt’s grant of summary judgment to the defendant CDOC officials on Mr. Gwi nn’s procedural due process claim arising out of his classification as a sex offender at the July 20, 2000 hearing. Mr. Gwinn was afforded notice of the evidence against him and an opportunity to present evidence in his own behalf, and he received a written decision from the Hearing Committee. Because his a ssertions of bias are not supported by the record, Mr. Gwinn received the pro cedural protections required by the Due Process Clause.-21-

2. Registration as a Sex Offender upon Release fro m Prison Mr. Gwinn also challenges his classification as a s exual offender outside the prison walls. He alleges that “[i]n 1995, [he] was forced to register with the Denver Police Department as a sex offender as a con dition of parole, though his conviction . . . was for simple robbery.” Rec. doc . 47, at 3 (Response to Defendants’ Mot. for Summ. J., filed Jan. 14, 2000) . He adds that upon his release from any subsequent incarceration, he will be “forced to live in society labeled and stigmatized as a sex offender though he has never been convicted in a court of law for any sexual offenses,” id. at 3-4, and that he has been denied employment and admission into substance abuse progr ams because of the registration requirements, Rec. doc. 3, claim I, se ction D (Complaint, filed Feb, 17, 1999). Mr. Gwinn named his former parole offic er as a defendant on this due process claim but did not name the Parole Board or any of its members. The magistrate judge concluded that this due proces s claim was foreclosed by Chambers :

Under Chambers , plaintiff does not have a liberty interest in not being classified by the Parole Board as a se x offender, absent the denial of something of value t o him by the State as a result of that classification. Here , plaintiff alleges that because of the Parole Board’s classifi cation of him as a sex offender, he was required to register as a sex offender with community law enforcement agencies, a nd as a result, potential employers refused to hire hi m. Plaintiff has not demonstrated that he was denied something of value by the State as a result of the sex-22- offender classification. Thus, defendant Fisher’s actions in enforcing that condition of his parole did not d eprive plaintiff of a constitutionally-protected liberty i nterest. Rec. doc. 77, at 20 (Report and Recommendation, fi led Sept. 6, 2000). In our view, the magistrate judge misread Chambers and characterized Mr. Gwinn’s liberty interest too narrowly. Chambers concerns the classification of an inmate inside the prison walls. See Chambers , 205 F.3d at 1242 (noting that “[f]inding [a due process] violation in the prison setting is particularly daunting”). The case does not address the standard s for determining whether a liberty interest is implicated when an inmate who h as not been convicted of a sex offense is classified as a sex offender when he is released from prison. Chambers also does not address the particular procedural pr otections to which a former inmate may be entitled before he is so class ified. As the Supreme Court has noted, the procedural requirements for hearings conducted inside a prison are often quite different than those conducted elsewher e. See Wolff , 418 U.S. at 560 (“[I]t is immediately apparent that one cannot auto matically apply procedural rules designed for free citizens in an open society , or for parolees or probationers under only limited restraints, to the very differen t situation presented by a disciplinary proceeding in a state prison.”). Although Chambers does not address the circumstances presented by Mr

. Gwinn’s outside-the-prison walls due process claim, several other decisions are-23-

pertinent. In United States v. Bartsma , 198 F.3d 1191, 1199-1200 (10th Cir. 1999), we reviewed a defendant’s challenge to the d istrict court’s imposition of a special condition of supervised release requiring the defendant to register as a sex offender in any state in which he resided after his release from prison. In the case at hand, the defendant had been convicted only for possession of a firearm after conviction of a felony, but he had previously been convicted of rape and child molestation. We held that the defendant was entitl ed to “reasonable presentence notice . . . that a special condition of supervised release requiring him to register as a sex offender was a possibility.” Id. at 1200. In support of that holding, we reasoned that “[t]he special condition here implicated a liberty interest , and there was a lack of any obvious nexus between the condition and the crime of conviction. Fundame ntal fairness requires notice–either actual or constructive–under these ci rcumstances.” Id. at n.7 (emphasis added). Significantly, we did not sugges t that the defendant was required to show that the government had deprived h im of employment opportunities or anything else of value in order fo r a liberty interest to be implicated. The registration requirement was suffi cient in itself to implicate such an interest. This conclusion is supported by decisions of other courts. In Doe v. Department of Public Safety , 271 F.3d 38, 47-59 (2d Cir. 2001), rev’d on other4 In support of its conclusion that the alleged inj ury arising out of the

listing on the sexual offender registry was disting uishable from injuries protected by state defamation law, the Second Circuit reasone d: The imposition on a person of a new set of legal du ties that, if disregarded, subject him or her to felony prosecuti on, constitutes a change of that person’s status under state law. Suc h action is quintessentially governmental in nature. Moreover, the presence of such an alteration of the registrant’s legal rights and duties serves the federalism-based function of the plus factor: to e nsure that the plaintiff cannot convert a state-law defamation claim into a § 1983 action because of the mere fortuity that he or she is suin g a state defendant. The injury that the plaintiff alleges in this case- stigma plus an alteration in his or her state-law duties and status-could nothave been inflicted by a private person in a position analogous to that of the state. Only a defendant employing his or her power as a state off icial could impose and enforce the duties inherent in Connecticut’s se xual offender registry law and then publish the information obtained by th ose state-imposed duties.
Doe , 271 F.3d at 57 (citations and internal quotation marks omitted). -24- grounds , 538 U.S. 1 (2003), the Second Circuit held that t he stigma of being listed on a sex offender registry that contained fa lse information, combined with the “extensive and onerous” registration duties imp osed by Connecticut’s sex offender statute were sufficient to implicate a lib erty interest. 4 See also Smith v.
Doe , 123 S. Ct. 1140, 1157 (Stevens, J., concurring) ( “The registration and reporting duties imposed on convicted sex offenders are comparable to the duties imposed on other convicted criminals during periods of supervised release or parole. And there can be no doubt that the widespr ead public access to this personal and constantly updated information has a s evere stigmatizing effect. In5 However, as the Second Circuit noted in Doe , “these courts have not

necessarily disagreed with the contention that the ongoing legal obligations of sex offender registrants constitute a “plus” factor [su fficient to implicate a liberty interest]. Neither the Sixth Circuit in Cutshall nor the Ninth Circuit in Russell was presented with such an argument. Instead, the p laintiff in each of those cases claimed that the “plus factor consisted of the stat e’s intrusion on his or her right to privacy.” Doe , 271 F.3d at 58 (explaining Cutshall and Russell ). -25- my judgment, these statutes unquestionably affect aconstitutionally protected interest in liberty.”) (internal quotation marks an d citations omitted). Similarly, in Fullmer v. Michigan Dep’t of State Police , 207 F. Supp. 2d 650, 659-661 (E.D. Mich. 2002), the court concluded that the stigma of being falsely labeled on the state’s sexual offender registry, combined with the “obligations of registration and the attendant penalties for non-compliance” wer e sufficient to implicate a liberty interest. But cf. Cutshall v. Sundquist , 193 F.3d 466, 479-82 (6th Cir. 1999) (holding that the Tennessee sex offender regi stration statute “does not implicate a constitutionally protected liberty or p roperty interest in employment”); Russell v. Gregoire , 124 F.3d 1079, 1083 (9th Cir. 1997) (rejecting aclaim that the Washington sex offender registration statute implicated a liberty interest). 5 In light of our holding in Bartsmaand these other decisions adopting a similar approach, we conclude that Mr. Gwinn has su fficiently alleged that his classification as a sex offender outside the prisonwalls implicated a liberty interest. In particular, Mr. Gwinn has alleged that (1) the government made a false statement about him-that he was a sexual offe nder-that was sufficiently6 The Supreme Court’s recent decision in Connecticu t Dept. of Public

Safety v. Doe , 538 U.S. 1 (2003) does not foreclose this due pro cess claim. There, the Court held the Connecticut sex offender registration statute did not violate the procedural due process rights of indivi duals who had already been convicted of sexual offenses because “the law’s req uirements turn on an offender’s conviction alone— a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest .” Id. at 9 (emphasis added). Here, Mr. Gwinn alleges that he had no such opportu nity to challenge his classification as a sex offender upon his release f rom incarceration.

7Colorado has enacted statutes requiring the regis tration and treatment of sex offenders. See People v. Stead , 66 P.3d 117 (Colo. Ct. App. 2002) (discussing registration provisions); People v. Apo daca , 58 P.3d 1126 (Colo. Ct. App. 2002) (discussing treatment provisions). Thes e statutes have been amended on several occasions, and it is not clear which of them, if any have been applied by the defendants to Mr. Gwinn. We leave that deter mination for the district court on remand. -26- derogatory to injure his reputation, and that (2) h e experienced a governmentally imposed burden that “significantly altered [his] . . . status as a matter of state law,” in that he was required to register as a sex offender. See Paul , 424 U.S. at
710-11. 6 These allegations are sufficient to meet the appl icable “stigma-plus” standard. Unfortunately, the record before us is insufficientto evaluate these allegations. In particular, aside from the allegat ions of Mr. Gwinn’s complaint, the record contains no information as to whether Mr . Gwinn was required to register as a sexual offender, what provisions of C olorado law were invoked as justification for such registration, and which of t he named defendants, if any, were responsible for this registration. 7Moreover, there is no information-27-

regarding what procedural protections, if any, were afforded to Mr. Gwinn before he was required to register as a sexual offender. As the magistrate judge noted, the defendants did not address these matters in the ir motion for summary judgment, and Mr. Gwinn himself has not provided ev idence sufficient to resolve these allegations. Accordingly, we conclude that t he district court’s grant of summary judgment on Mr. Gwinn’s due process claim r egarding his classification as a sexual offender outside the prison walls must be vacated and remanded for further proceedings. On remand, the district court should determine: (1) whether Mr. Gwinn was required to register as a sexual offender upon his release from prison; (2) if Mr. Gwinn was required to register, what provisions of Colorado law were invoked to justify the registration; (3) what specific obligat ions any such registration imposed upon Mr. Gwinn. The district court should then determine which of these defendants, if any, were responsible for this regis tration. If any of the defendants were so responsible, the d istrict court should then determine whether the registration requirements, if any, were sufficient to “significantly alter[] [his] status as a matter of state law,” see Paul , 424 U.S. at 710-11, such that they implicated a liberty interes t. If such a liberty interest was implicated, the district court should then determin e whether Mr. Gwinn was afforded the procedural protections required by the Due Process Clause in these8 We leave for the district court the determination , if necessary to the

disposition of Mr. Gwinn’s case, of what process is due to a person who has been released from prison and has never been convicted o f a sex offense before that person may be properly required to register as a se x offender. As noted above, that question is not resolved by our decision in Ch ambers

. -28- circumstances. 8

B. Fifth Amendment Compulsion Claim Mr. Gwinn contends that CDOC officials violated his Fifth Amendment rights by punishing him for refusing to comply withone of the requirements of the treatment program for sex offenders—that he adm it that he committed a sex offense. He contends that because he refused to pa rticipate in the treatment program, he was ineligible to earn good time credit s at the higher rate available to participating prisoners. The denial of this benefi t, Mr. Gwinn maintains, constituted impermissible compulsion of incriminati ng testimony. Mr. Gwinn’s argument is controlled by the Supreme C ourt’s decision in McKune v. Lile , 536 U.S. 24 (2002), and this circuit’s subsequentinterpretation of that decision in Searcy v. Simmons , 299 F.3d 1220 (10th Cir. 2002). In
McKune , a divided Supreme Court reversed a decision of th is court applying the Fifth Amendment’s bar on compelling incriminating t estimony. This court had concluded that a Kansas policy restricting an inmat e’s privileges and transferring him to a maximum security prison after he refused t o disclose his sexual history-29-

(as required by a sex offender treatment program) c onstituted impermissible compulsion. See McKune v Lile , 224 F.3d 1175 (10th Cir. 2000). Four justices concluded that the standard set forth in Sandin v. Conner , 515 U.S. 472 (1995), should control in determining whether the impositio n of these consequences constituted impermissible compulsion: if the conse quences constituted “atypical and significant hardship[s] on [inmates] in relatio n to the ordinary incidents of prison life” then the program would violate the Fif th Amendment. McKune , 536 U.S. at 25 (citing Sandin , 515 U.S. at 484). Applying that Sandinstandard to the facts before it, the plurality con cluded that the penalties imposed against the prisoner wer e significantly less than potential penalties other inmates faced in cases wh ere the Supreme Court ruled that there was no Fifth Amendment violation. See McKune , 536 U.S. at 41-45. Accordingly, the plurality concluded that the Kansa s program did not violate the plaintiff prisoner’s Fifth Amendment right against self-incrimination. McKune , 536 U.S. at 48. Because she disagreed with the plurality’s applicat ion of Sandin ’s “atypical and significant hardship” standard, Justice O’Conno r did not join in the plurality opinion in McKune . However, she did agree that the consequences of the plaintiff prisoner’s refusal to incriminate himself were not “so great as to constitute compulsion for the purposes of the FifthAmendment privilege against-30-

self-incrimination.” Id. at 49 (O’Connor, J., concurring). Thus, she concu rred in the judgment. As we noted in Searcy , “[b]ecause Justice O’Connor based her conclusion on the narrower ground that the [Department of Corr ections’] policy was not compulsion under the Fifth Amendment, we view her c oncurrence as the holding of the Court in McKune .” 299 F.3d at 1225; see Marks v. United States , 430 U.S. 188, 193 (1977) (stating that the holding of a frag mented Court “may be viewed as that position taken by those Members who concurr ed in the judgments on the narrowest grounds”). Accordingly, the question we must resolve is whether, under the standard applied by Justice O’Connor in h er concurring opinion, consequences of Mr. Gwinn’s refusal to participate in the treatment program for sexual offenders were “so great as to constitute co mpulsion,” McKune , 536 U .S. at 49 (O’Connor, J., concurring), for purposes of the Fifth Amendment privilege against self-incrimination. In this regard, we note that Mr. Gwinn’s refusal to participate in the treatment program did result in an additional conse quence not suffered by the plaintiff prisoner in McKune : the loss of opportunity to accrue good time cred its at an increased rate. Thus, we must determine whet her this additional adverse consequences is “serious enough to compel Mr. Gwinnto be a witness against himself.” 536 U.S. at 50 (O’Connor, J., concurring ).-31-

This circuit’s opinion in Searcyresolves that issue. There, we held that the withholding of good time credits to a Kansas prison er who refused to participate in a treatment program did not constitute compulsio n. We reasoned that the award of good time credits under the Kansas regulat ion was discretionary and that, as a result, “foreclosing [the plaintiff] fro m the mere opportunityto earn good time credits is not a new penalty but only the withholding of a benefit that the [Kansas Department of Corrections] is under no obligation to give.” 299 F.3d at 1226. Thus, the plaintiff prisoner “was left wi th a choice: take advantage of a benefit that the [Department of Corrections] provid ed or turn down that benefit in order to avoid providing what he feared, perhaps le gitimately, would be selfincriminating statements.” Id. Such a choice did not constitute compulsion. Searcyis applicable here. Like the Kansas Department of Corrections, the CDOC retains discretion in awarding good time credi ts. See Col. Rev. Stat. § 17-22.5-405(1) (stating that “[e]arned time, not to exceed ten days for each month of incarceration or parole, maybe deducted from the inmate’s sentence”) (emphasis added); Duncan v. Gunter , 15 F.3d 989, 992 (10th Cir. 1994) (noting the discretionary language in the Colorado good tim e credit statute). Under Colorado law, parole decisions are similarly discre tionary. See Thiret v. Kautzky , 792 P.2d 801, 805 (Colo. 1990). Thus, Mr. Gwinn, l ike Mr. Searcy, was faced with a choice between the opportunity to earn credi ts at the higher rate and retain-32-

favorable parole status or declining that opportuni ty by refusing to participate in the treatment program and thereby avoiding the requ irement that he admit to committing a sex offense. Accordingly, the pressur e imposed upon Mr. Gwinn did not rise to a level where it is likely to compe l a person to be a witness against himself. See Searcy , 299 F.3d 1227 (applying McKune , 536 U.S. at 49) (O’Connor, J., concurring). To be sure, as Mr. Gwinn further observes, there is another difference between McKune and Searcyand the instant case: both of the defendants in th ose cases were convicted of sexual offenses while Mr. G winn was not. Mr. Gwinn contends that this fact establishes that the CDOC i mpermissibly sought to compel incriminating testimony. We disagree with Mr. Gwinn’s reading of those cases . Under Justice O’Connor’s opinion in McKune and our decision in Searcy , the Fifth Amendment compulsion analysis focuses on the consequences imp osed upon the inmate who refuses to participate in the sexual offender treat ment program. See McKune , 536 U.S. at 49-50 (O’Connor, J., concurring) (noting th at the court must ask “whether the pressure imposed in such situations rises to a level where it is likely to compel a person to be a witness against himself” and concl uding that “I do not believe the consequences facing respondent in this case are serious enough to compel him to be a witness against himself”) (internal quotati on marks and alterations9 In supplemental briefing filed by his appellate counsel, Mr. Gwinn also

contends that CDOC officials informed him that he w as required to admit to the commission of a sex offense in order to receive “favorable parole board status.” Aplt’s Supp. Br., filed July 23, 2001, at 14. Mr. Gwinn then cites the Colorado Lifetime Supervision Act, Col. Rev. Stat. § 18-1.3- 1001, et seq., and states that under that statute, sex offenders “must participate and progress” in [the CDOC’s treatment program] in order to be considered a cand idate for parole.” Id. at 14 n.7. Whether requiring a prisoner to admit to an off ense in order to be eligible for parole constitutes compulsion in violation of the Fifth Amendment is a question not resolved by the Supreme Court’s deci sion in McKune or our decision in Searcy . However, upon review of the record, we conclude that Mr. Gwinn did not raise this issue in the district court proceedings, and that, as a result, we need not address it here. Mr. Gwinn did allege that CDOC officials told him t hat he must admit to committing a sex offense in order to receive “favor able parole board reports.” Rec. doc. 1, section C, at 1 (Complaint filed Feb. 17, 1999). He also asserted (continued...) -33- omitted); Searcy , 299 F.3d at 1227 (examining the level of pressure imposed upon a prisoner who refused to admit that he was a sexua l offender). Here, despite the fact that Mr. Gwinn has not been convicted of a sex ual offense, the consequences of his failure to admit that he committed an assaul t are similar to the consequences imposed upon the prisoner in Searcy . Thus, although Mr. Gwinn’s lack of a prior conviction for a sexual offense may be relevant to other constitutional claims–such as the due process claim s we have discussed above– that fact does not affect the analysis of the Fifth Amendment compulsion claim. Accordingly, we conclude that the district court pr operly granted summary judgment to the defendant CDOC officials on Mr. Gwi nn’s Fifth Amendment compulsion claim. 99 (...continued)

that CDOC officials wrote “unfavorable parole boardreports” based on the alleged sexual assault of which he was not convicte d. Id. at 5. However, he did not contend that prison officials applied the Lifet ime Supervision Act to him or that his refusal to participate in the treatment pr ogram rendered him completely ineligible for parole. To the extent that Mr. Gwinn merely alleges that hi s refusal to admit to the alleged sexual assault was considered as an unfavor able factor in reports to the parole board, we agree with the CDOC that such unfavorable reports do not constitute impermissible compulsion under McKune . Cf. Ainsworth v. Stanley , 317 F.3d 1, 6 (1st Cir. 2002) (“conclud[ing] that t he reduced likelihood of parole for refusing to participate in [a prison treatment program for sexual offenders] does not constitute a penalty sufficient to compel incriminating speech in violation of the Fifth Amendment”). -34- C. Ex Post Facto, Eighth Amendment, First Amendment, and Equal Protection Claims Mr. Gwinn’s remaining claims do not require extende d discussion. He argues that the CDOC officials violated the Ex PostFacto Clause, because, in requiring him to participate in a treatment program for sexual offenders, these officials applied a law regarding the treatment of sexual offenders, Col. Rev. Stat. § 16-11.7-101 et seq., enacted in 1992—after the date on which Mr. Gwinn committed the alleged sexual assault. In Chambers , we rejected this very challenge. See 205 F.3d at 1242 (noting that “in rehabilitative m atters, prison officials may consider any history established in t he inmate’s record which it may determine requires treatment” and that “because app lication of the [Sexual Offender Treatment Program] did not affect the lega l consequences of [the10 To the extent that Mr. Gwinn’s ex post facto clai m concerns the

application of Colorado’s sexual offender registrat ion statutes upon Mr. Gwinn’s release from prison, we do not consider it here. A s noted above, the record is insufficient to determine whether Mr. Gwinn was req uired to register as a sexual offender outside the prison walls, and, if so, whic h provisions of Colorado law were applied to him. However, we do note that the Supreme Court and this court have rejected ex post facto challenges to such regi stration laws. See Smith v. Doe , 539 U.S. 84 (2003); Femedeer v. Haun , 227 F.3d 1244 (10th Cir. 2000). -35- plaintiff prisoner’s] crime or increase his punishm ent, there is no ex post facto violation”) (internal quotation marks omitted). Th us, the district court properly granted summary judgment to the defendant CDOC offi cials on Mr. Gwinn’s ex post facto claim. 10 Mr. Gwinn’s Eighth Amendment claim–that the denial of good time credits and other privileges as a result of his failure to admit that he had committed a sexual assault–is also not supported by the applicable law. “[T]he Eighth Amendment prohibits punishments which, although notphysically barbarous, involve the unnecessary and wanton infliction of pa in . . . . But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.” Rhodes v. Chapman , 452 U.S. 337, 346-47, (quotation omitted). The conditions alleged by Mr. Gwinn do n ot rise to that level. Mr. Gwinn’s First Amendment claim is based upon CDO C officials alleged denial of grievances regarding his classification a s a sex offender. According to Mr. Gwinn, in denying the grievances, CDOC official s told him that the classification was not grievable. Rec. doc. 3, at 3 (Complaint filed Feb. 17,-36-

1999). Standing alone, the allegation that CDOC of ficials denied Mr. Gwinn’s grievances is insufficient to allege the violation of his First Amendment rights. Cf. Smith v. Maschner , 899 F.2d 940, 947 (10th Cir.1990) (noting that be cause a prisoner must ordinarily first file a grievance in order to ultimately gain access to courts, punishing him for actually filing grievance s may state a First Amendment claim). Here, there is no indication that CDOC off icials retaliated against him for filing the grievances. Moreover, CDOC officials di d eventually provide Mr. Gwinn with an opportunity to challenge the classifi cation at the July 20, 2000, hearing. As we observed in Chambers , until we issued that opinion, the right to contest such a classification was not clearly estab lished. See 205 F.3d at 1244. Accordingly, the district court properly rejected M r. Gwinn’s First Amendment claim as well. Finally, Mr. Gwinn argues that CDOC officials violated his Fourteenth Amendment equal protection rights because he was tr eated differently than other defendants convicted of robbery in that he was requ ired to submit to a treatment program for sex offenders or lose his good time cre dits. As the district court noted, absent an allegation of a suspect classification, our review of prison officials’ differing treatment of various inmates i s quite deferential: in order to withstand an equal protection challenge, those clas sifications must be reasonably related to a legitimate penological purpose. See Templeman v. Gunter , 16 F.3d-37-

367, 371 (10th Cir. 1994). Here, prison officials found that Mr. Gwinn, unlike other robbery defendants, had committed a sexual as sault. Thus the requirement that he participate in a treatment program had a rational relationship to rehabilitative objectives. See id. (“Not only might the [Department of Corrections] classify inmates differently because o f slight differences in their histories, but they also might classify inmates dif ferently because some still seem to present more risk of future misconduct than othe rs.”); Martinez v. Flowers , 164 F.3d 1257, 1261 (10th Cir. 1998) (upholding cla ssification of violent offenders); see generallyBrown v. Zavaras , 63 F.3d 967, 971 (10th Cir. 1995) (applying the rational basis standard to the treatm ent of a prisoner and stating that “[w]hen the plaintiff is not a member of a protecte d class and does not assert a fundamental right, we determine only whether govern ment classifications have a rational basis”). Accordingly, the district court also properly rejected Mr. Gwinn’s Equal Protection Claim.

III. CONCLUSION For the reasons set forth above we therefore AFFRIMthe district court’s judgment in favor of the defendants on Mr. Gwinn’s First, Fifth, and Eighth Amendment claims and on his Equal Protection and ExPost Facto claims. As to Mr. Gwinn’s Due Process claims, we affirm the distr ict court’s judgment in favor-38-

of the defendants insofar as those claims concern M r. Gwinn’s classification as a sex offender while incarcerated. As to Mr. Gwinn’s due process claim regarding his classification as a sex offender upon release f rom incarceration, we VACATE the district court’s judgment in favor of the defen dants and REMAND this case to the district court for further proceedings consiste nt with this opinion.