Gwinn v. Awmiller

• Citation: 354 F.3d 1211
• Decision Date: 12 January 2004
• Docket Number: No. 00-1485.,00-1485.
• Parties: Kevin Charles GWINN, Plaintiff-Appellant, v. 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.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

354 F.3d 1211

Kevin Charles GWINN, Plaintiff-Appellant, v. 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.

No. 00-1485.

United States Court of Appeals, Tenth Circuit.

January 12, 2004.

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Megan Curtiss and Stephen Cribari, University of Denver College of Law, Denver, CO (Robert Foster, University of

Denver College of Law, with her on the briefs), for the Plaintiff-Appellant.

Joseph P. Sanchez, Assistant Attorney General, State of Colorado (Ken Salazar, Attorney General of Colorado with him on the briefs), for the Defendants-Appellees.

Before HENRY, McKAY, Circuit Judges, and OBERDORFER, District Judge.^*

HENRY, Circuit Judge.

Kevin Charles Gwinn appeals the district court's order granting summary judgment against him and in favor of the defendant Colorado Department of Corrections (CDOC) officials on his 42 U.S.C. § 1983 civil rights claim. Mr. Gwinn asserted various claims arising out of his classification as a sexual offender. In particular, Mr. Gwinn alleged that CDOC officials: (1) violated his rights under the Due Process Clause of the Fourteenth Amendment by failing to provide him with an adequate hearing before classifying him as a sex offender, requiring him to register as a sex offender, and revoking his parole for failing to participate in a treatment program for sex offenders; (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 treatment program for sexual offenders; (3) violated the Ex Post Facto Clause by applying a Colorado statute enacted after the alleged commission of the sexual offense; (4) violated the Eighth Amendment by classifying him as a sex offender and requiring him to register as one; (5) violated his First Amendment rights 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 Amendment by treating him differently than other inmates convicted of similar offenses.

For the reasons set forth below, we conclude that as to Mr. Gwinn's due process challenge to his classification as a sex offender while incarcerated, the district court properly granted summary judgment to the defendant CDOC officials. However, we further conclude that the district 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 summary judgment and remand the case for further proceedings.

As to Mr. Gwinn's Fifth Amendment, Ex Post Facto, Eighth Amendment, First Amendment, and Equal Protection claims, we agree with the district court that the defendants are entitled to summary judgment.

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 court with robbery, aggravated robbery, and sexual assault. He pleaded guilty to robbery, and the sexual assault charge was dismissed. The court sentenced him to ten years' imprisonment on the robbery charge.

In 1990, the CDOC informed Mr. Gwinn that, as a result of the sexual assault charge, he would be required to complete a treatment program for sex offenders. One of the requirements of the treatment program was that Mr. Gwinn admit that he had committed the sexual assault charged in the 1987 case.

Initially, Mr. Gwinn stated that he had committed the 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 program because of two violations of prison disciplinary rules.

In 1995, prison officials released Mr. Gwinn on parole. According to Mr. Gwinn, his parole officer, the defendant Linda Fisher, informed him that he was required to register with the Denver Police Department 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 classified as a sex offender.

Mr. Gwinn further alleges that in 1996, a Colorado court convicted him of possession of a controlled substance and ordered him to participate in a drug treatment program. According to Mr. Gwinn, he left the program after learning that his classification as a sex offender made him ineligible to participate.

In 1998, Mr. Gwinn began serving a sentence for possession of a controlled substance. He was released on parole in February 2000, and one of the conditions of his parole was to participate in a treatment program for sex offenders. Mr. Gwinn alleged that his parole was revoked several months later, in part because he refused to participate in the treatment program.

On July 20, 2000, the Department of Corrections held an administrative hearing to determine whether Mr. Gwinn, then in prison 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 position that he should not be so classified. The hearing panel reviewed Mr. Gwinn's written statement and the preinvestigation report from the 1987 conviction, which 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 seeking an injunction directing prison officials not to classify him as a sex offender, as well as damages. The district court adopted the report and recommendation of the magistrate judge and granted the defendants' motion for summary judgment.

Although he initially proceeded pro se in this appeal, this court subsequently appointed counsel for Mr. Gwinn. Appointed counsel has filed supplemental briefs addressing the due process and Fifth Amendment claims. On January 21, 2003, during the pendency of this appeal, 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 grant of summary judgment de novo, applying the same standard as the district court 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 appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue 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 favorable to the nonmoving party. See AMR Corp., 335 F.3d at 1113.

A. Due Process Claim

The Fourteenth Amendment provides that citizens may not be deprived of life, liberty, or property without due process. See Chambers v. Colorado Dep't of Corr., 205 F.3d 1237, 1242 (10th Cir.2000). Our prior decisions have acknowledged that while "[f]inding ... a [procedural due process] violation in the prison setting is particularly daunting, id., " `a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.'" Id. (quoting Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)); see also Wolff, 418 U.S. at 556, 94 S.Ct. 2963 (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. In particular, Mr. Gwinn argues that during his incarceration, CDOC officials classified 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 Linda Fisher, required him to register as a sex offender when he had not been convicted of a sex offense, also depriving him of a liberty interest without an adequate hearing and thereby violating his procedural due process rights.

"`Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him,' a protectible liberty interest may be implicated that requires procedural due process in the form of a hearing to clear his name." Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1558 (10th Cir.1993) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (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, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (stating that "reputation alone, apart from some more tangible interests such as employment, is neither `liberty' or `property' by itself sufficient to invoke the procedural protection of the Due Process Clause"); McGhee v. Draper, 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 sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she asserts is false, and (2...