Chambers v. Colorado Dept. of Corrections

• Decision Date: 07 March 2000
• Docket Number: No. 97-1023,97-1023
• Citation: 205 F.3d 1237
• Parties: (10th Cir. 2000) JOHN H. CHAMBERS, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS; MARGARET HEIL, in her Individual and Official Capacity, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1237

205 F.3d 1237 (10th Cir. 2000)

JOHN H. CHAMBERS, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS; MARGARET HEIL, in her Individual and Official Capacity, Defendants-Appellees.

No. 97-1023

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

March 7, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 95-Z-2028)

Richard Byron Peddie and Catherine A. Hance, Frascona, Joiner & Goodman, P.C., Boulder, CO, forPlaintiff-Appellant.

Ken Salazar, Attorney General, and Paul S. Sanzo, First Assistant Attorney General, Denver, CO, forDefendants-Appellees.

Before HENRY, HOLLOWAY, and PORFILIO, Circuit Judges.

OPINION ON REMAND

PORFILIO, Senior Circuit Judge.

The questions presented here are whether the Colorado Department of Corrections' Sex Offender Component classifying John H. Chambers a sex offender and requiring his participation in the Sexual Offender Treatment Program (SOTP) violates the Ex Post Facto Clause and implicates a liberty interest under the Due Process Clause of the Fourteenth Amendment. We affirm, in part, and reverse, in part.

Mr. Chambers, an inmate in the custody of the Colorado Department of Corrections (CDOC), began serving a thirty-nine year sentence for aggravated robbery and attempted theft in 1985.¹ In 1987, CDOC Health Services classified Mr. Chambers as a Sexual Offender, S-2, [Exh. 9], based on the Sex Offender Component of its Risk Assessment Management Program (RAMP) then in effect.² [Exh. 8]. The program targeted its mission "to identify and provide specialized supervision and treatment for high-risk assaultive offenders." Noting the high rate of recidivism of the sex offender population, the program sought to "identify, track, treat and supervise sex offenders in order to reduce risk to the community." The program categorized sex offenders based on their criminal history. The S-2 sex offender "committed a sex offense but was not convicted of a sex offense charge."³

Despite Mr. Chambers' S-2 classification, CDOC did not commence its prescribed sex offender treatment at that time. That treatment, including participation in group therapy, is conditioned upon the inmate's admitting he committed a sex offense; stating he has a problem in this area; and demonstrating his willingness to work on the problem. Instead, according to CDOC Progress Assessment Summary sheets, Mr. Chambers completed his GED, a basic and advanced welding class, a basic mental health program, was assigned as a law librarian in 1991, and was "report free, and definitely not considered a management problem."⁴ Presumably based on this conduct, Mr. Chambers continued to receive good time and earned time credits totaling ten days a month.

In 1992, however, Ms. Phyllis Bachicha, a CDOC case manager, reviewed the file and discovered a police report indicating that in 1983, the year before his present sentence of conviction, Aurora, Colorado police arrested Mr. Chambers and charged him with first degree sexual assault. The report included the victim's account of the alleged rape and sodomy and Mr. Chambers' contrasting story. Statements from both the victim and Mr. Chambers converged only upon the facts the two were living together for perhaps a month and had been drinking on the night of the alleged assault. Mr. Chambers insisted the sex was consensual, and the police evidently were unable to establish otherwise. Although the hospital report listed multiple bruises the victim sustained, police were unable to confirm details of the assault she described.⁵ The police report noted detectives advised the victim that she would have to testify in a trial to the court and "it would be brought out during trial that she had been living with the victim [sic] and that she had had intercourse with him before. Victim became upset and stated that if that were the case, that she would drop the charges." [Exh. 3]. The victim then wrote and signed a statement to that effect.⁶

At oral argument before this panel, the State acknowledged its decision to pursue treatment under the program for Mr. Chambers was based on the victim's affidavit. Following Ms. Bachicha's review, Mr. Chambers submitted another questionnaire denying his alleged sexually assaultive behavior, thus signifying his "ineligibility" to participate in the program.⁷ Because Mr. Chambers did not participate in the program, Ms. Bachicha recommended reducing the monthly ten days of earned time credit he received to seven days.

This three-day reduction based on his refusal to accept the classification of sex offender triggered the series of lawsuits Mr. Chambers then filed. As we noted in Chambers III, in his first federal lawsuit, Mr. Chambers, pro se, alleged the loss of earned time credits based on the classification violated his right to due process and equal protection and privilege against self-incrimination. We affirmed that dismissal upon finding earned time credits were a matter of discretion and could not support a constitutional claim. Chambers v. Bachicha, 39 F.3d 1191 (10th Cir. 1994) (unpublished). In his second suit, the Colorado Court of Appeals affirmed the dismissal based on res judicata of his state suit for declaratory relief seeking restoration of his earned time credits based on the classification. Chambers v. Colorado Dept. of Corrections, No. 95CA1248 (Colo. Ct. App. Apr. 18, 1996). Returning to federal court again pro se, Mr. Chambers filed the lawsuit underlying our second review here challenging his classification as a sexual offender in violation of due process and equal protection. On cross-motions for summary judgment, the district court held the action was not barred by res judicata because the challenge to the classification itself had not been previously raised. However, the court granted the CDOC's motion for summary judgment on the claims of the violation of Mr. Chambers' equal protection, due process, and ex post facto rights. The CDOC did not cross-appeal that conclusion, the district court having rejected each of the attendant constitutional claims.

In his appeal of that judgment, we appointed counsel to address the constitutionality of Colorado's Sex Offender Treatment Program, Colo. Rev. Stat. § 16-11.7-101 et seq., effective 1992 (the Act), believing that was the operative authority challenged in Mr. Chambers' pro se brief. Our focus was sharpened by Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997).

With this direction, appointed counsel contended the Act violated the Ex Post Facto Clause because it, in fact, imposed punishment in the guise of treatment by reducing the amount of earned time credit Mr. Chambers received, thereby lengthening his sentence. Further, the Act violated due process, counsel argued, because this highly stigmatizing label worked an atypical deprivation of Mr. Chambers' liberty interest. The CDOC responded that even though the action was barred by res judicata, the Constitution did not provide a right to any particular prison classification. The CDOC distinguished Neal v. Shimoda on the ground the Hawaii Sexual Offender Treatment Program conditioned eligibility for parole on the inmate's being labeled a sex offender and participating in the treatment program. In contrast, the CDOC argued, Mr. Chambers "lost nothing to which he ever had an entitlement."

However, during oral argument, the CDOC told the panel the Act did not even apply to Mr. Chambers' case. Instead, his classification was premised on internal CDOC policy which is not limited to inmates convicted of sex offenses. After further confusion over whether Mr. Chambers was prevented from receiving earned time credits or simply had his earned time credits reduced and which earned time credit statute applied, the panel remanded the case for the district court to conduct an evidentiary hearing aimed at clarifying the factual and legal predicates of the issues. Chambers III.

The joint stipulation of facts and exhibits filed in the district court provides the following clarification. As factual support for the classification, the police report, victim's affidavit, and reference to the 1983 sexual assault in the presentence report filed for Mr. Chambers' present incarceration comprised the evidence upon which the CDOC's SOTP team had relied since 1987. Mr. Chambers was classified an S-2 based on the 1987 Sex Offender Component of the RAMP, A/R 600-1. However, the same regulation and criteria are applied to inmates covered by the ACT, and the treatment programs are consolidated. In 1989, when RAMP created five risk categories, S-1 through S-5, incorporated in Regulation 700-19, Mr. Chambers' S-2 classification became S-4.⁸ Mr. Chambers has never admitted to or been convicted of any sex offense although, the parties stipulated, "[t]here are convicted sex offenders who do not participate in SOTP and who nevertheless receive the maximum awardable earned time credits."⁹ If Mr. Chambers "admitted liability" and complied with SOTP even if he could not participate, "he would receive an additional 3 days of earned time credits each month." Mr. Chambers filed a grievance contesting his S-4 classification, but CDOC personnel rejected it in each of the three steps of the grievance procedure. Additionally, the parties stipulated until June 7, 1990, Colo. Rev. Stat. § 17-22.5-302 governed the calculation and award of Mr. Chambers' earned time credits. Presently, Colo. Rev. Stat. § 17-22.5-405 applies.¹⁰

Thus, though not originally classified under the Act, the terms of Mr. Chambers' treatment including the requirement for his admission to being a sex offender are now merged into those of the Act. Further, though the same factual predicates for classifying him a sex offender have existed since he was first so labeled, only in 1992 were earned time credits taken away as a consequence of the label. Hence, the focus becomes whether what was taken away as a consequence of the label is simply a privilege, as the CDOC...