UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

JOSE A. DIAZ, Plaintiff - Appellant,

v. JILL LAMPELA; BRANDON SHAFFER, Defendants - Appellees. No. 14-1106 (D.C. No. 1:13-CV-01098-WJM-MJW) (D. Colo.)

ORDER AND JUDGMENT *

Before HARTZ , McKAY , and McHUGH , Circuit Judges.

Plaintiff Jose A. Diaz is a Colorado sex offender sent enced to a term of eight years to life under the indeterminate sentenci ng scheme for sex offe nses set out in the Colorado Sex Offender Lifetime Supervision Act of 1968 (SOLSA), Colo. Rev. Stat. §§ 18-1.3-1001 to 1012. After he was deni ed parole at the minimum eight-year mark and his application for re-entry into a sex-offender treatment and management

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 11, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - program (SOTMP) was rejected, Mr. Diaz br ought this official-capacity civil rights action under 42 U.S.C. § 1983 for equitable re lief against the Chairman of the Parole Board (currently Brandon Shaffer) and th e Chief of Behavioral Health for the Colorado Department of Corre ctions (currently Jill Lamp ela). The district court granted defendants’ motion to dismiss and this appeal followed. On de novo review,

see Gee v. Pacheco , 627 F.3d 1178, 1183 (10th Cir. 2010), we affirm. I. BACKGROUND We accept the following alle gations of fact—as opposed to bare conclusions of law—as true for purposes of our review. See Bixler v. Foster , 596 F.3d 751, 756 (10th Cir. 2010). In 2002, Mr. Diaz pleaded guilty to a class IV felony sex offense and received the indeterminate sentence noted above. 1 Upon his incarceration he completed the first phase of the SOTMP, but was terminat ed (i.e., given a “time out” in order to “help understand his issues”) from the second phase in 2010 for behavior not specified in the complaint. R. Vol. 1 at 11 par. 22. In January 2012, Mr. Diaz obtained an independent psychosexual evaluation from a clinical psychologist, who diagnosed him as a pedophiliac a nd stated that he requires treatment for the condition. The psychologist recommended the Colorado

1 Under the SOLSA scheme, sex offenders receive an indete rminate sentence with a minimum term of years (which is tied to the presumptive sentencing range for the felony level of the offense) and a maximum term of life. See Vensor v. People , 151 P.3d 1274, 1276 (Colo. 2007) (discussing Colo. Rev. Stat. § 18-1.3-1004(1)(a)). After completion of the minimum term, implem entation of the remainder is left to the discretion of the parole board. See id. (discussing Colo. Rev. St at. § 18-1.3-1006(1)).- 3 - Institute for Mental Health in Pueblo, Colorado, because the Colorado Department of Corrections (CDOC) lacked phalometric asse ssment facilities. Mr. Diaz relied on this evaluation to request readmission to the SOTMP to improve, manage, or control his condition. CDOC officials sent him an application, whic h he completed and returned in August 2012. After a month wi thout a response, he filed a grievance, requesting readmission to the SOTMP as well as treatment at the Institute in Pueblo. The grievance alleged that the refusal of treatment, and continued incarceration without treatment based on the status of be ing a pedophile, violated his rights under the Eighth Amendment. The grievance was denied on the grounds that he had not used the correct application form for r eadmission to the SOTMP and had otherwise not proved his allegations. In the meantime, Mr. Diaz appeared befo re the parole board, which deferred action on parole for risk-rela ted reasons notwithstanding th e fact that it rated him “Very Low” on a risk-assessment scale. The two risk categorie s the parole board relied on were “Severity/Circumstances of offense” and “Prior criminal history.” Mr. Diaz alleges that denying parole on these grounds is impe rmissible as added punishment for the underlying offense and as punishment for his mental condition/status. He also alle ges that such grounds are outsi de the criteria the parole board may properly consider under state law governing offende rs sentenced under
SOLSA.- 4 - The complaint asserts five claims. Tw o are directed at the CDOC through defendant Lampela: (1) fail ure to provide treatment for his pedophilia, in violation of Eighth Amendment strict ures regarding medical care of inmates; and (2) imprisonment, without adeq uate treatment, for the cond ition or status of being a pedophile predisposed to commit sex offens es, in violation of the Eighth Amendment prohibition on cruel and unusual punishment . The remaining three claims are directed at the parole boa rd through defendant Shaffe r: (1) promulgation and application of policies that inflict a dded punishment on sex offenders, including Mr. Diaz, without a judicial trial, in viol ation of the Bill of Attainder Clause, U.S. Const. art. I, § 10, cl. 1; (2) imprisonment, through denial of parole, for the condition or status of being a sex-o ffending pedophile predisposed to commit sex offenses, in violation of the Eighth Amendment; and (3 ) denial of parole under the wrong standards or criteria prescrib ed by state law, in violation of the Due Process Clause of the Fourteenth Amendment. For relief, Mr. Diaz sought a declaration that CDOC and parole board policy violat ed his constitutional rights; an order requiring his readmission to the SOTMP and specialized treatment for his pedophilia; and an order directing the parole board to apply the proper criteria, excludi ng punishment as a consideration, at a parole hear ing to be scheduled forthwith. 2

2 While Mr. Diaz may proceed under 42 U.S.C. § 1983 in challenging parole procedures, to the extent he “challenge[s ] a constitutional defect in an individual parole hearing, where the re medy lies in providing a new pa role hearing, [he] must file a habeas petition.” Herrera v. Harkins , 949 F.2d 1096, 1097 (10th Cir. 1991). (continued)- 5 - II. LEGAL ANALYSIS A. Eighth Amendment Claim against CDOC for Inadequate Medical Care The Eighth Amendment prohibition on cr uel and unusual punishment applies to officials’ “deliberate indifference to serious medi cal needs of prisoners.” Estelle v. Gamble , 429 U.S. 97, 104 (1976). We rece ntly summarized the two-prong framework for analyzing deliber ate-indifference claims in Al-Turki v. Robinson , 762 F.3d 1188 (10th Cir. 2014): A claim of deliberate indifferenc e includes both an objective and subjective component. The objective prong of the deliberate indifference test examines whether the prisoner’s medical condition was sufficiently serious to be cogni zable under the Cruel and Unusual Punishment Clause. The subjective prong examines the state of mind of the defendant, asking whether the offi cial knew of and disregarded an excessive risk to inmate health or safety. Id. at 1192 (brackets, citations, and in ternal quotation marks omitted). The district court rejected Mr. Diaz’s deliberate-indifference claim under the objective prong, holding that his pedophilia did not present a serious medical need. “A medical need is considered sufficiently serious to satisfy the objective prong if the condition has been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the necessity for a doc tor’s attention.” Id. at 1192-93 (internal quotation marks omitte d). The district c ourt concluded that “although [Mr. Diaz] has been diagnosed as having the mental condition of

His request for an order requiring a new paro le hearing forthwith is thus beyond the scope of this civil-rights action. See id. at 1098.- 6 - pedophilia, treatment for his pedophilia has not been ma ndated,” citing Mr. Diaz’s allegation that the clinical psychologist had only “recommend[ed]” treatment at the Colorado Institute for Mental Health in Pueb lo. R. Vol. 1 at 147. But even though Mr. Diaz alleged that that particular treatment had only been recommended, he also alleged that the psychologist indicated mo re generally that his condition “requires
treatment.” Id. at 11. We nevertheless agree that the delib erate-indifference claim fails on the objective prong. Mr. Diaz alleged that hi s readmission to the SOTMP was denied because he used the wrong a pplication, not because he wa s irrevocably denied access to the program. His claim is properly analy zed as a delay in treat ment. To state such a claim, he must alle ge that the delay has caused or will cause “substantial harm,” such as “lifelong handicap, permanen t loss, or considerable pain.” Al-Turki , 762 F.3d at 1193 (internal quotation marks omitted); see also Riddle v. Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996) ( noting psychiatric treatment may be constitutionally mandated if a serious conditi on “is curable or may be substantially alleviated” and “the potential for harm to the prisoner by r eason of delay or the denial of care would be substantial” (internal quotation marks omi tted)). With respect to medical consequences of the la ck of treatment, the compla int alleges only that it has been a “detriment” to his “well being.” R. Vol. 1 at 16. Such a vague and conclusory allegation does not suffice to state an Eighth Am endment claim. See Riddle , 83 F.3d at 1204 (holding that sex offe nder’s “[v]ague alle gations of eroded- 7 - self-esteem, apathy, fear and feelings of differentness . . . do not amount to the basis for a [deliberate indiff erence] claim” regarding lack of treatment for sexual disorder). Mr. Diaz also alleges his condition predispo ses him to commit sex offenses, but that is a potential harm to othe rs, not to himself. Althou gh this predisposition may also impact his parole prospects, we address th at nonmedical concern in the next section below. We also think dismissal of this clai m is proper under the subjective prong. The complaint indicates that Mr. Diaz’s own conduct necessitated his removal from the SOTMP and that his read mission to the program has b een impeded by his failure to properly apply. Nothing in the comp laint suggests that his removal from the program was for any reason other than that his conduct indicated a suspension of treatment for a period of self-examination was warranted. Mr. Diaz does not allege that this judgment about the appropriatene ss of ongoing treatment in light of his conduct was incorrect or neglig ent, much less that it rose to the level of deliberate indifference. See generally Estelle , 429 U.S. at 107 (dis tinguishing disputed treatment decisions and even malpractice from deliberate indifference required for Eighth Amendment claim). As for readmiss ion to the program, he does not allege that he was incorrectly rejected for usi ng the wrong application, let alone provide- 8 - facts plausibly suggesting that an unjustified denial of hi s application constituted a subjective deliberate indiffere nce to his medical needs. 3 B. Eighth Amendment Claim for Lack of Treatment for Condition Underlying Continued Incarceration under SOLSA Mr. Diaz claims that CDOC’s failure to treat his pedophilia violated his Eighth Amendment rights for another reason as well. His argument runs as follows: the focus of his prolonged incarceration under SOLSA beyond the minimum term of his indeterminate sentence is on his propensity to re-offend arising from his pedophilia; consequently, the failure to treat this condition while con tinuing his confinement is cruel and unusual punishment. This court has previously re jected (albeit in an unp ublished decision) the tacit legal premise of this argum ent—that is, that when a psychological condition could impact a prisoner’s parole, treatment is mandated by the Eighth Amendment even if the condition would not otherwise require treatment as a seri ous medical need. See Hunt v. Colo. Dep’t of Corr. , 194 F. App’x 492, 495 (10th Cir. 2006). But we need not rely on that analysis. As we have already noted, the SOTMP has been made available to Mr. Diaz; it a ppears from the complaint that his current nonparticipation in the program is attributab le to his own conduct.

3 He does allege that he used an app lication provided by CDOC staff, but there is no allegation that any mistak e in this regard wa s an intentional effo rt to impede his readmission into the SOTMP. Nor does he allege that he has since properly applied for readmission and still been rejected.- 9 - C. Eighth Amendment Claim for Punishme nt Based on Status or Propensity In a related claim brought against the pa role board, Mr. Diaz contends that his continued confinement followi ng the denial of parole c onstitutes cruel and unusual punishment for his mere stat us as a pedophile with a propensity to commit future sex offenses. It is true that punitive incarceration solely on the basis of a person’s status or propensities violates the Eighth Amendment. See United States v. Munro , 394 F.3d 865, 872 (10th Cir. 2005) (discussing Robinson v. California , 370 U.S. 660 (1962)). But we are not addressing a se ntence imposed on such grounds; Mr. Diaz’s indeterminate sentence was imposed for his commission of a criminal offense. We are addressing the discretionary denial of parole, which merely continues punishment already imposed for the underlying offense and does not itself implicate the Eighth Amendment. See Lustgarden v. Gunter , 966 F.2d 552, 555 (10t h Cir. 1992). D. Bill of Attainder Claim The constitution prohibits states from passing “Bill[s] of Attainder.” U.S. Const. art. I, § 10, cl. 1. A Bill of Attainder “leg islatively determines guilt and inflicts punishment upon an identifiabl e individual without provision of the protections of a judicial trial.” Nixon v. Adm’r of Gen. Servs. , 433 U.S. 425, 468 (1977). The Bill of Attainder Clause “pr ohibit[s] legislatures from singling out disfavored persons and meting out summ ary punishment for past conduct.” Landgraf v. USI Film Prods. , 511 U.S. 244, 266 (199 4). Mr. Diaz claims that the parole board violated this constitutional prohibition by denying him paro le for reasons, regarding- 10 - the seriousness of his underlying offense, that SOLSA excludes from the parole board’s consideration. This claim fails for at leas t two reasons. First, a pa role determination is an executive adjudication, not a legislative enactment. Ind eed, Mr. Diaz’s objection to the parole board’s deci sion is that it was in contravention of the controlling legislative enactme nt (SOLSA). Second, Mr. Diaz’s incarceration followi ng the discretionary denial of parole is not a new punishment me ted out by the parole board. It simply continues the punishment previously imposed by the c ourt that sentenced him for the underlying offense. See Mahn v. Gunter , 978 F.2d 599, 602 n.7 (10th Cir. 1992) (discretionary denial of parole in Colorado does not im pose additional punishment, because it “does not change the length of a prisoner’s sentence”); cf. Malek v. Haun , 26 F.3d 1013, 1016 (10th Cir. 1994) (when parole is disc retionary, “the denial of parole . . . [cannot] constitute cruel and unusual punishment, double jeopa rdy, or ex post facto application of the law”). E. Due-Process Claim Mr. Diaz contends that the parole boa rd’s consideration of a sex offender’s underlying offense in conn ection with parole is prohibited by SOLSA and that the board violated (and will continue to violat e) his due-process rights by doing so. But a due-process claim could arise here only if Mr. Diaz had a cognizab le liberty interest in securing parole. He does not.- 11 - “Whatever liberty interest exists is, of course, a state interest created by [state] law. There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners.” Swarthout v. Cooke , 131 S. Ct. 859, 862 (2011) (per curiam). The question, then, is whether state law affords the prisoner a legitimate claim of entitlement to parole or instead has left the determination of parole to the discretion of the parole board. See Straley v. Utah Bd. of Pardons , 582 F.3d 1208, 1212-14 (10th Cir. 2009). SOLS A leaves it to the parole board “to determine whether the sex offender may be released on parole,” Colo. Rev. Stat. § 18-1.3-1006(1)(a) (emphasis added), and the Colorado Supreme Court has recognized that this provision “assigns discretion to the pa role board to release [an offender],” Vensor , 151 P.3d at 1276; see also Lustgarden , 966 F.2d at 553 (state court’s interpretation of paro le statute as discretionary is “controlling in federal court”). SOLSA does not create a liberty interest in parole of sex offenders. 4 Mr. Diaz has argued at length that SOLS A has a rehabilitative purpose and that the parole board contravenes this purpose in violation of due process by considering, in allegedly punitive fashion, a sex offe nder’s underlying offense in deciding whether to grant parole. Defendants have argued at length to the contrary. But as we have already concluded that due pr ocess is not implicated in the denial of parole under

4 While its unpublished decision is not binding on us, we note that another panel of this court reached th e same conclusion for much the same reasons in Jago v. Ortiz , 245 F. App’x 794, 796- 97 (10th Cir. 2007).- 12 - SOLSA, we need not address the point. Without that asserted constitutional dimension, the dispute over the parole board’s understanding an d implementation of SOLSA is merely a matter of state law. “An action under § 1983 . . . cannot be maintained on the basis of allege d violations of state law.” Cardoso v. Calbone , 490 F.3d 1194, 1197 (10th Cir. 2007) (internal quotation marks omitted). The judgment of the district court is affirmed. Mr. Diaz’s motion to certify questions of state law is denied.

Entered for the Court

Harris L Hartz Circuit Judge