* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. 

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

### AUG 29 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DALE WAYNE GROSS, Plaintiff - Appellant,

v. COLORADO DEPARTMENT OF CORRECTIONS; DR. L. DENNIS KLEINSASSER; MERLE DORMAN; TERESA KRALL, Defendants - Appellees. No. 03-1122 (D.C. No. 02-M-445) (D. Colorado)

ORDER AND JUDGMENT *

Before KELLY , BRISCOE , and LUCERO , Circuit Judges. **

Plaintiff-Appellant Dale Wayne Gross, a state inmat e appearing pro se, appeals from the district court’s dismissal of his civil rights action against the Colorado Department of Corrections (“DOC”) and cert ain of its employees. His- 2 -

complaint alleged deprivation of various constituti onal rights springing from his internal prison classification as a sex offender ev en though he was not found guilty of a sex offense. On cross-motions for summ ary judgment, the district court granted summary judgment in favor of the Defe ndants. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm. Mr. Gross is in the custody of the DOC to serve a 1 2-year term of imprisonment after being convicted by a jury of fir st degree trespass, first degree burglary, retaliation against a victim or witness, second degree assault, third degree assault, and domestic violence (“the convict ed offenses”). The DOC reviewed Mr. Gross’s file and concluded that althou gh he was not convicted of sexual assault, he nonetheless satisfied the criter ia for an administrative review of his sex offender classification. Mr. Gross was served with notice of his right to an administrative review, which he requested. This notice informed Mr. Gross of the facts in his file supporting a review and expla ined that he had the right to call witnesses and to present documentary evidence on hi s behalf. Mr. Gross received notice of the hearing date and appeared at the hear ing. The hearing panel, in a written statement, informed Mr. Gross that he wouldbe classified as an S-4 sex offender for having behaved in a sexually violent and abusive manner based on a presentence report detailing conduct surrounding th e convicted offenses. Mr. Gross filed a complaint pursuant to 42 U.S.C. § 1983 alleging- 3 -

deprivation of various rights from the classificati on. Specifically, he alleged: (1) that the inadequate administrative procedures resul ting in his classification as a sex offender denied him due process; (2) that requi ring him to participate in the sex offender treatment program (“SOTP”) to be eligi ble for additional earned time credits denied him the equal protection of the law; and (3) that requiring him to admit that he is a sex offender as a precondition t o entry into the SOTP violates his privilege against self-incrimination. The district court granted summary judgment for Def endants, concluding that Mr. Gross failed to show any factual support f or his claims and concluding that: (1) the DOC’s administrative procedure compli ed with the requirements of Chambers v. Colo. Dep’t of Corrs. , 205 F.3d 1237 (10th Cir. 2000); (2) there is no equal protection violation by classifying sex of fenders differently from other groups of inmates because there are rational reason s for the classification and difference in programs; (3) any claim of self incri mination is defeated by the Supreme Court’s decision in McKune v. Lile , 536 U.S. 24 (2002); and (4) Colorado’s provision for earned time credits does n ot create a constitutionally protected liberty or property interest. We review the district court’s grant of summary jud gment de novo, applying the same legal standard used by the distri ct court. Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1225 (10th Cir. 2000). Summary ju dgment- 4 -

“shall be rendered forthwith if the pleadings, depo sitions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to a judgment as a matter of law.” Fed. R . Civ. P. 56(c). “When reviewing cross-motions for summary judgment, ‘our review of the record requires that we construe all inferences in favor o f the party against whom the motion under consideration is made . . . .’” Pirkh eim v. First Unum Life Ins. , 229 F.3d 1008, 1010 (10th Cir. 2000) (quoting Andersen v. Chrysler Corp. , 99 F.3d 846, 856 (7th Cir. 1996)). On appeal, Mr. Gross reargues the claims from his c omplaint and also adds the claim that the pattern of DOC conduct alleged b y his complaint amounts to infliction of cruel and usual punishment in violati on of the Eighth Amendment. Aplt. Br. at 2, 18. We decline to consider Mr. Gro ss’s added Eighth Amendment claim because it was raised for the first time on appeal. See McDonald v. Kinder-Morgan Inc. , 287 F.3d 992, 999 (10th Cir. 2002). After conduc ting the required de novo review and examining the parties’ submissions, including Mr. Gross’s brief, the record, and the relevant law, we are convinced that the district court’s disposition was correct. For substantiallythe reasons relied on by the district court, we conclude that Defendants were entitled to summary judgment. Regarding Mr. Gross’s due process claim, we held inChambers that “some- 5 -

process” must be afforded an inmate before he can b e classified as a sex offender. 205 F.3d at 1243. Although we did not explicitly d iscuss how much process was required, we relied on the Ninth Circuit’s analysis in Neal v. Shimoda , 131 F.3d 818, 831 (9th Cir. 1997), which itself relied on th e standards discussed in Wolff v. McDonnell , 418 U.S. 539 (1974). See also Superintendent v. Hill , 472 U.S. 445, 454 (1985) (under Wolff standards, the prisoner must receive advance written notice, an opportunity to call witnesses an d present documentary evidence in his defense, and a written statement by the fact finder of the evidence relied on and the reasons for the action taken). Here, the D OC provided Mr. Gross process that satisfies the Wolff

standard. R. Doc. 15 Exs. 1-4. Without deciding precisely what process must be afforded in these ci rcumstances, we agree with the district court that Mr. Gross received sufficient p rocess. Regarding Mr. Gross’s equal protection argument rel ating to earned time credits, we also recognized in Chambers that earned time credits are a matter of discretion under Colorado law; thus, there is no ba sis upon which the earned time credits statute may be interpreted to create an ent itlement or liberty interest for purposes of a due process claim. 205 F.3d at 1239. Because there is no constitutionally protected right to earned time cre dits, Mr. Gross’s equal protection claim must fail; absent deprivation of aconstitutionally protected right, he presents no cognizable claim under § 1983. See West v. Atkins , 487 U.S. 42,- 6 -

48 (1988). Even were we to reach the merits of the equal prote ction claim, we agree with the district court that the DOC classificationis not subject to heightened review and would easily pass muster under rational basis review. See Aplee. Br. at 13-15. Finally, we also agree with the districtcourt that the Supreme Court’s reasoning in McKune renders Mr. Gross’ self-incrimination claim meritl ess. Accordingly, we AFFIRM the district court’s grant o f summary judgment to defendants. We remind Mr. Gross that he is obligat ed to make partial payments of the filing fee until the entire fee has been pai d. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge