Waldman v. Comm'r

• Decision Date: 26 September 2017
• Docket Number: No. 15-15535 Non-Argument Calendar.,15-15535 Non-Argument Calendar.
• Citation: 871 F.3d 1283
• Parties: Adam Keith WALDMAN, Plaintiff-Appellant, v. Alabama Prison Commissioner, Cassandra CONWAY, Classification Director, in her individual and official capacity, Amanda Baggett, Assistant Classification Director, in her individual and official capacity, Mrs. Cooley, Classification Specialist, in her individual and official capacity, Captain Butler, in her individual and official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

871 F.3d 1283

Adam Keith WALDMAN, Plaintiff-Appellant,

v.Alabama Prison Commissioner, Cassandra CONWAY, Classification Director, in her individual and official capacity, Amanda Baggett, Assistant Classification Director, in her individual and official capacity, Mrs. Cooley, Classification Specialist, in her individual and official capacity, Captain Butler, in her individual and official capacity, Defendants-Appellees.

No. 15-15535 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

September 26, 2017

Adam Keith Waldman, Pro se.

Limestone CF Warden, Limestone CF—Inmate Trust Fund, Harvest, AL, for Plaintiff–Appellant.

Bart Gregory Harmon, Alabama Department of Corrections, Legal Division, William Glenn Parker, Jr., Office of the Governor, Andrew Lynn Brasher, Luther J. Strange, III, Alabama Attorney General's Office, Montgomery, AL, for Defendants–Appellees.

Before TJOFLAT, FAY and MARCUS, Circuit Judges.

PER CURIAM:

Adam Waldman, an Alabama prisoner proceeding pro se , appeals the District Court's dismissal of his complaint under 42 U.S.C. § 1983 against five officials from the Alabama Department of Corrections ("ADOC") on his claims that the Alabama Sex Offender Registration and Community Notification Act ("ASORCNA") and the ADOC classification manual violated his procedural due process, substantive due process, and ex post facto rights. Waldman first argues that the ADOC officials violated his Fourteenth Amendment procedural due process rights by classifying him as a sex offender without providing notice, a hearing, or a chance to present evidence or witnesses. Second, he contends that the ADOC officials violated his Fourteenth Amendment substantive due process rights by classifying him as a sex offender when he was convicted of kidnapping and had never committed a sex offense. Finally, Waldman argues that the ADOC officials committed an ex post facto violation by imposing a greater punishment for his crime than existed at the time he was convicted. After reviewing the record and considering the parties' briefs, we affirm.

I.

In September 2005, Waldman was convicted in Alabama state court of first-degree robbery, first-degree attempted assault, and first-degree kidnapping of a minor, all under Alabama law. He was sentenced to two life sentences plus an additional ten years. Waldman argues, and Appellees do not contest, that his crime did not involve sexual conduct with the child he abducted. Rather, he claims that the trial record shows that he abducted the child in order to obtain a ransom or use the child as a shield or hostage. Nevertheless, Alabama law includes first and second-degree kidnapping of a minor in its list of "sex offenses" under ASORCNA. Ala. Code § 15-20A-5(18). Although ASORCNA was not enacted until 2011—six years after Waldman's conviction—its predecessor statute defined first and second-degree kidnapping of a minor as "sex offenses" as early as 1998—seven years prior to his conviction. See id. § 15-20-21 (1998).

Under ASORCNA, every adult sex offender, regardless of when his crimes were committed or when his duty to register arose, must register specified personal information in each county that he intends to reside, work, or attend school. See id. §§ 15-20A-3, 15-20A-7, 15-20A-10. Alabama law places several other limits on sex offenders, including in part: (1) a prohibition on residing within 2,000 feet of any school, childcare facility, resident camp facility, or any of their victims; (2) a prohibition on employment at any school, childcare facility, or any business that provides services primarily to children, among other restrictions; and (3) a requirement to report any travel for a period of three or more consecutive days to the sheriff in each county of residence. See id. §§ 15-20A-11, 15-20A-13, 15-20A-15. At least 30 days prior to release, or immediately upon notice of release if release is in less than 30 days, the ADOC must inform sex offenders of their duty to register, provide the required registration information to the state and any planned counties of residence if within Alabama, and provide the required registration information to the state along with any information necessary to track the offender if the planned county of residence is outside of Alabama. Id. § 15-20A-9.

Moreover, ASORCNA and a predecessor provision enacted in 2005 make persons convicted of "sex offenses" ineligible for parole. See id. § 15-22-27.3 (2017); id. (2005). The Alabama legislature stated that ASORCNA's purpose was to further the State's interest in protecting vulnerable populations, particularly children. Id. § 15-20A-2(5). The legislature noted that its intent was "not to punish sex offenders but to protect the public and, most importantly, promote child safety." Id.

Pursuant to ASORCNA, the ADOC adopted a classification manual that classifies inmates according to the type of offense of which they were convicted. The ADOC classification manual prescribes that inmates who have been convicted of a sex offense should receive an "S" suffix added to their inmate number.¹ It also renders them ineligible for minimum custody, which means they must necessarily be made ineligible for work release and other early-release programs as well. Waldman also contends that, due to his "S" classification, he is forced to attend classes or group therapy sessions for sex offenders in prison. The manual requires prison officials to notify an inmate at least 24 hours in advance before changing his classification, in order to allow him to present information that could bear on their classification decision.

Waldman contends that prison officials classified him as a sex offender pursuant to the ADOC manual in May 2013, many years after his confinement began. He alleges that those officials failed to observe the ADOC classification manual's 24-hour notice requirement before doing so. After failing to obtain relief by protesting the classification to prison officials, Waldman brought this lawsuit pro se , filing a verified complaint under 42 U.S.C. § 1983 against five ADOC officials in their official and individual capacities. He alleged in his complaint that those officials violated his due process rights by classifying him as a sex offender when he had never been convicted of a sex offense. He further alleged that the classification constituted a violation of the Ex Post Facto and Double Jeopardy Clauses, and that he was subjected to a bill of attainder. He sought compensatory and punitive damages, declaratory and injunctive relief, and to have the "S" suffix removed from his inmate number and file.

Before Waldman served process, a Magistrate Judge entered a report and recommendation (R & R) recommending that the District Court dismiss the complaint under 28 U.S.C. § 1915A(a) for failure to state a claim. The District Court accepted the R & R in part and rejected it in part. The part it rejected concerned Waldman's procedural due process claim: the Court found that the Magistrate Judge erroneously relied on this Court's holding in Kirby v. Siegelman , 195 F.3d 1285 (11th Cir. 1999) (per curiam), to deny that Waldman possessed a liberty interest in not being classified in prison as a sex offender. Nevertheless, the Court dismissed Waldman's claim in full for failure to state a claim for relief. Waldman timely appealed.

II.

We review de novo a district court's sua sponte dismissal for failure to state a claim for relief under 28 U.S.C. § 1915A(b). Jones v. Fla. Parole Comm'n , 787 F.3d 1105, 1107 (11th Cir. 2015). A district court's denial of leave to amend due to futility is also reviewed de novo . Fla. Evergreen Foliage v. E.I. DuPont De Nemours and Co. , 470 F.3d 1036, 1040 (11th Cir. 2006) (per curiam). We may affirm on any ground supported by the record, regardless of whether that ground was relied upon or even considered below. Kernel Records Oy v. Mosley , 694 F.3d 1294, 1309 (11th Cir. 2012).

Under 28 U.S.C. § 1915A(a), the district court must screen any complaint in which a prisoner seeks redress from a governmental entity or officer. 28 U.S.C. § 1915A(a). The court must dismiss any complaint that fails to state a claim upon which relief may be granted. Id. § 1915A(b)(1). To avoid dismissal for failure to state a claim, a complaint must include factual content that allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct. Jones , 787 F.3d at 1106–07. The complaint's factual allegations must be accepted as true. Id. at 1107. A pro se pleading is held to a less stringent standard than a pleading drafted by an attorney and is liberally construed. Id. However, a pro se pleading must still suggest that there is at least some factual support for a claim. Id. Issues not briefed on appeal by pro se litigants are deemed abandoned. Timson v. Sampson , 518 F.3d 870, 874 (11th Cir. 2008) (per curiam).

We review each of Waldman's arguments sequentially. We find that the District Court did not err in dismissing Waldman's complaint for failure to state a claim upon which relief could be granted.

a. Procedural Due Process

The Due Process Clause protects against deprivations of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. A prisoner can be deprived of his liberty such that due process is required in two contexts: (1) "when a change in the prisoner's conditions of confinement is so severe that it essentially exceeds the sentence imposed by the court"; or (2) "when the state has consistently bestowed a certain benefit to prisoners, usually through statute or administrative policy, and the deprivation of that benefit imposes an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ " Kirby , 195 F.3d at 1290–91 (quoting Sandin v. Conner , 515 U.S. 472, 484, 115 S.Ct. 2293, 2301, 132 L.Ed.2d 418 (1995) ).

We conclude that the District Court did not err when it dismissed Waldman's...