USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 95-1466

JAMES DOMINIQUE,

Plaintiff, Appellant,

v.

WILLIAM WELD, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________
____________________

Before

Boudin,* Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________
____________________

Wendy B. Golenbock, for appellant.

__________________
Stephen
Ankers
Hanson,

G. Dietrick,

White,

Deputy General Counsel,

_______________________

with

Special Assistant Attorney General,

____________________________________

Senior Litigation
Attorney,
_____________________________

Massachusetts

Correction, were on brief for appellees.

____________________

whom

Na

and Herbert
Department

January 18, 1996

____________________

____________________

*Judge

Boudin

participated
two

heard

oral

in the issuance of

panelists therefore

46(d).

argument

issue

in

this

matter

the panel's opinion.

this opinion

pursuant

but

has

The remain
to 28

U.S

CAMPBELL,

Dominique, a

Senior Circuit Judge.

_____________________

sentenced

inmate in

Plaintiff James

the Massachusetts

prison

system, was returned to confinement after he had been allowed

to participate

years.

in a

work

release program

for almost

four

He appeals from the district court's refusal to order

reinstatement of his work release status and its dismissal of

his related claims,

brought under 42 U.S.C.

violations

Due

Amendment

for

of

I. Facts
I. Facts

Process Clause

and the Ex Post

different

decisions.

the

reasons

in

Facto Clause.

light of

1983, alleging

of

the

Fourteenth

We affirm, albeit

recent

Supreme

Court

Plaintiff

was

imprisoned

in

1983

for

crimes including incest and is scheduled for release

2000.

In

August 1987,

he was

transferred to

security Massachusetts Correctional Institution

("MCI-Lancaster").

Lancaster

In May 1988, the

permitted him

the minimum

at Lancaster

Superintendent of MCI-

in

connection with work he was then doing on state vehicles.

In

Release

plaintiff was

Program.

He

renew his

in June

driver's license

August 1990,

to

multiple

approved for the

became

mechanic

Community Work

for

R.M.J.

Transportation, Inc., and the following year was permitted to

open his own vehicle repair business.

-2-

Plaintiff

release program.

remained

However,

in good

standing in

in the summer of 1993,

the work

access to

his license and the keys to his personal vehicle was revoked,

causing him to

April

lose his job

at R.M.J. Transportation.

In

of 1994, he was removed from the work release program.

On May 5, 1994, because he was deemed a security risk, he was

transferred from MCI-Lancaster to a medium security facility,

MCI-Shirley.

No hearing occurred before the latter transfer,

but reclassification hearings were subsequently held

13 and September 23,

recommended

facility.

1994.

plaintiff's

The

Each time, a

transfer

on June

committee majority

to

lower

security

Commissioner overruled these recommendations.

Plaintiff remains at MCI-Shirley.

Defendants1

privileges

particular,

because he

the

accountability at

away

say

that

remains

incest),

and

they

in denial

of his

because he

had

his repair business.

plaintiff's license

date are eligible to

plaintiff's

crime (in

too

little

They justify taking

because of revised

providing that only inmates within six

release

revoked

DOC guidelines

months of an approved

use their licenses.

They add

that his

that,

crime makes him

having been

a risk to

denied parole on

the public safety,

three occasions,

and

he is

____________________

1.

The

defendants

Massachusetts,

Thomas

are

William

Rapone,

Weld,

Governor

then-Commissioner

of

of
the

Department of Public Safety, Larry E. Dubois, Commissioner of

the Massachusetts Department of Correction, and Luis Spencer,
Superintendent of MCI-Lancaster.

-3-

more likely to attempt to escape.

has

never violated

Agreement

Plaintiff responds that he

any condition

("Agreement").2

He

of the

claims

Community Release

that

his

removal

resulted from media and public uproar following an incident -

wholly

unrelated to

escapee shot a police

written

statement

him

--

officer.

of

reasons

regulations concerning the

in which

an

MCI-Lancaster

Plaintiff was never

for

his

treatment of

given a

removal.

New

sex offenders

make

plaintiff presently ineligible for work release.

In

that these

Clause

Clause.

his

district court

changes in

of the

action,

his status violated

Fourteenth Amendment

He requested

plaintiff alleged

and the

the Due

Ex Post

Process

Facto

a preliminary injunction ordering that

he

be reinstated to the work release program.

In dismissing

the due process claim, the district court held that plaintiff

had shown

neither

a constitutionally-derived

nor a

state-

____________________

2.

The

Community

release programs

Release Agreement

for

requires a participating

his understanding

Lancaster

inmate to signify

that "[i]n accepting and

community

release

release,

and

programs

education

voluntarily accept[s]

including
release

pre-

all

participating in
furloughs, work

opportunities,

[he]

the following conditions . . . ."

The

participant cannot leave the state, cannot leave his assigned

location during breaks
aware

of specific

specific

release

unless authorized to

requirements
activity,

medical examinations

must

do so, must

and arrangements
cooperate

or searches of lockers

for

be
each

with requested
or outside work

areas, and must conduct himself generally "in accordance with

the laws of the state and community."
The Agreement states that "[a]ny violation
release

policies will

result in

of community

[the participant's]

being

subject to disciplinary action or prosecution and will not be

considered in the future community participation requests."

-4-

created

liberty interest.

Amendment

did not

require the

prior to removing him

prison.

Post

This being

so, the

state to

Fourteenth

provide procedures

from the program and returning

him to

The district court also found no violation of the Ex

Facto

Clause,

participation in

related to the

because the

new

regulations governing

work release

were not punitive

but rather

public safety.

The court denied

injunctive

relief, as plaintiff had not shown a likelihood of success on

the merits.3

II. Standard of Review

II. Standard of Review

The

response

district

to

court

defendants'

dismissed

motion

plaintiff's

in

the

alternative

dismissal under Fed.

R. Civ. P. 12(b)(6) or Fed.

56.

court recited

The

12(b)(6)

district

motions

materials outside

and

affidavits)

but

of the pleadings

to determine

protected liberty

process before

to dismiss,

it

for

R. Civ. P.

standard

relied

in

in

governing

part

on

(including the Agreement

whether

interest entitling

removal from

the

claims

plaintiff enjoyed

him to procedural

the work release

program.

due

We

____________________

3.
law

The

district court dismissed plaintiff's

claims

1367(c)(3).

without
While

prejudice,
appellant's

counsel

28

claimed

U.S.C.
at

process,

the former theory is not briefed nor does it appear

See Grella
___ ______

as procedural

oral

a lack

been developed below.

as well

to

argument

to have

of substantive

pursuant

pendant state

Accordingly, it

due

was waived.

v. Salem Five Cent Sav. Bank, 42 F.3d 26, 36 (1st

_________________________

Cir. 1994).

-5-

therefore

Smith v.
_____

treat the motion as one for summary judgment.

Massachusetts Dep't of Correction, 936

__________________________________

1394 (1st Cir. 1991); Fed. R.

grant of summary judgment

light most favorable

Civ. P. 12(b)(6).

See
___

F.2d 1390,

We review a

de novo, viewing the facts

_______

to the nonmovant, plaintiff.

in the

Coyne v.
_____

Taber Partners I, 53 F.3d 454, 457 (1st Cir. 1995).

________________

III. Due Process Clause of the Fourteenth Amendment

III. Due Process Clause of the Fourteenth Amendment

A. The District Court Decision

A. The District Court Decision

The

shall

"deprive

Fourteenth

any person

Amendment provides

of

life,

that

no state

liberty, or

property

without due

focal

process of law."

issue

here is

whether

protected liberty interest.

he

possessed

Constitution

U.S. Const. amend.

liberty

itself.4

plaintiff was

XIV.

deprived

The

of a

Plaintiff has not asserted that

interest created

Rather,

he

by

has

the

federal

contended

that

____________________

4.

The

Supreme

circumstances,

221-222

has recognized

the Constitution

liberty interest.
210,

Court

See, e.g.,
___ ____
(1990)

drugs); Vitek
_____

(involuntary

commitment to a

408

Generally,

U.S.

471

prisoners

itself may

v. Jones,
_____

459 U.S.

460

give rise

to a

administration
445 U.S.

(revocation

confinement

constitutionally-derived liberty interest.

v. Helms,
_____

certain

of

480 (1980)

mental hospital); Morrissey v.

_________

(1972)
under

in

Washington v. Harper, 494 U.S.

__________
______

(involuntary

antipsychotic

Brewer,
______

that,

(1983) (state

do

of
not

parole).
have

See, e.g., Hewitt

___ ____ ______

action taken

within

sentence
(transfer

imposed);
to higher

Meachum v.
_______

Fano,
____

security prison);

427

U.S. 215

Bowser v.
______

(1976)

Vose, 968
____

F.2d 105, 106 (1st Cir. 1992) (denial of furlough); Lanier v.

______
Fair, 876
____

F.2d 243, 246

program);

Brennan v.
_______

(1989) (removal from

Cunningham, 813
__________

F.2d

halfway house
1, 6

(1st Cir.

1987) (same).

-6-

Massachusetts

state

regulations and

the

Community Release

Agreement established a state-created liberty

interest which

defendants could not take away without providing due process.

The

regulations and Agreement, he argued, cabined officials'

discretion and

led him legitimately

the work release program

express condition.

liberty

interest

language" within

to expect to

so long as he did not

U.S.

Wakinekona,
__________

461

violate some

Dominique relied on cases holding that a

may be

created

by

state regulations.

"explicitly mandatory

See Kentucky Dep't of

___ __________________

Corrections v. Thompson, 490 U.S. 454,

___________
________

Helms, 459
_____

remain in

460,

U.S.

471-472

238,

463 (1989); Hewitt v.

______

(1983);

249

see
___

(1983)

also
____

Olim
____

v.

("particularized

standards or criteria [to] guide the State's decisionmakers")

(citation

omitted).

Dominique

pointed

to

cases of

this

circuit holding that

for

participation

program

Lanier
______

may

a signed

in

evidence

v. Fair,
____

and

agreement outlining

removal from

state-created

876 F.2d

243 (1st

criteria

prison

liberty

Cir. 1989);

release

interest.

Brennan v.
_______

Cunningham, 813 F.2d 1 (1st Cir. 1987).

__________

____________________

The

Tenth

Circuit

recently

recognized

constitutionally-derived liberty interest in a case involving

a

state pre-parole

Harper
______

v. Young, 64 F.3d
_____

Edwards v. Lockhart,
_______
________
for the

conditional

supervision program.

563, 566 (10th

908 F.2d 299,

proposition that parole

See
___

Cir. 1995) (citing

302-303 (8th Cir.

and work release

1990)

should be

viewed on a continuum, with the program at issue more closely

resembling

parole because

it allowed

a convict

"to exist,

albeit conditionally, in society on a full-time basis").

-7-

The district court

and

Agreement under

analyzed the state

Thompson,
________

Hewitt, Olim
______ ____

regulations

criteria.

concluded that the language relating to Dominique's

in participating

was

and remaining

too provisional

liberty interest.

to create

Neither

in the work

It

interest

release program

a constitutionally-protected

the regulations nor the Agreement

required officials to grant

work release status initially or

indefinitely.

certain

plaintiff's

the

similarities

Agreement and agreements

district

precedent,

Despite

court

language

determined

of

in Brennan and Lanier,

_______
______

that,

more

between

under

mandatory

our

latest

character

was

essential.5

Plaintiff appealed.

appellate

Sandin
______

v.

determining

brief, the

Conner,
______

the

Supreme

infra,
_____

existence

interest.

____________________

Within

a week of

Court issued

modifying

of

the

filing his

its opinion

in

standard

for

state-created

liberty

5.

See Bowser v. Vose, 968 F.2d 105, 108 (1st Cir. 1992) (a
___ ______
____

regulation providing that "[a]

the

[six enumerated]

resident who satisfies one of

purposes . . . shall

furlough" was insufficient to

"[a]bsent

from

the

language directing

inmate who satisfies the

Ventetuolo,
__________
mandatory

941

F.2d

regulatory

eligible for

create a liberty interest, for

regulations
that a

be

. . . is

furlough must
____

any

mandatory

be granted

eligibility requirements"); Rodi v.

____
22,

25

language

limits on officials' actions,

(1st

Cir.

1991)

placed definite

(clearly

substantive

as state conceded); Smith, 936

_____

F.2d at 1397 (court reserved judgment

on the inmate contract

because of a misconduct-based violation, but noted a

mandatory language

to any

limiting discretion in

and the regulations).

-8-

lack of

both the contract

B. Sandin v. Conner
Sandin v. Conner
______
______

In

Sandin v. Conner, 115 S. Ct. 2293 (1995) (5-4),

______
______

the Court criticized its

examined the

determine

former precedent under which courts

language in

whether

state statutes and

a liberty

interest

doctrine "encouraged prisoners to

of

mandatory

language

on

was

regulations to

created.

This

comb regulations in search

which to

base

entitlements

to

various state-conferred privileges."

Id. at 2299.
___

expressed two

prior approach "creates

disincentives

policy concerns:

for

States

to

its

codify

prison

The Court

management

procedures in the interest

old

approach also

"has led

courts in the day-to-day

cases affording

of uniform treatment."

state

to the

involvement of

Id.
___

The

federal

management of prisons," contrary to

officials appropriate

flexibility in prison management.

deference

and

Id.
___

The Court held that states may still create liberty

interests that afford prisoners due process protections,

explained:

[T]hese

interests

will

limited to freedom from

be

generally

restraint which,

while not exceeding the sentence

an unexpected

manner as to

protection by

the Due Process

in such

give rise to
Clause of

its own force . . . , nonetheless imposes

atypical and significant hardship on the
_________________________________________
inmate in relation
to the
ordinary
_________________________________________

but

incidents of prison life.

________________________

Id. at 2300 (internal citations omitted) (emphasis supplied).

___

Applying this standard

to the situation in Sandin, the Court

______

-9-

concluded

that disciplining

a prisoner

for thirty

days in

segregated confinement "did not present the type of atypical,

significant deprivation

in which a

create a liberty interest."

state might

conceivably

Id. at 2301.
___

C. Applying Sandin
C. Applying Sandin
______

Defendants argue that Sandin requires this court to

______

affirm

the district

process

claim.

court's

They agree

dismissal

with the

of plaintiff's

lower court

due

that the

language of the regulations and Agreement was insufficient to

create

liberty

removal from

interest in

any

event,

work release and return

but argue

that

to regular confinement

did not meet Sandin's new threshold criterion of an "atypical

______

and significant

incidents

of

hardship . . . in

prison

life."

Id.
___

relation to

at

2300.

the ordinary

If

solitary

confinement for thirty days

level of

an

did not, in Sandin, rise

______

"atypical, significant

hardship," then

to the

surely

removal from work release does not do so, defendants say.

Plaintiff

extent

to

which

replies that Sandin is unclear about the

______

the

interests has changed.

still

that

protects inmates

removal

security

from work

prison

standard

for

recognizing

liberty

He argues that the Due Process Clause

against important

release

constitute

an

hardship."

-10-

deprivations, and

and transfer

"atypical

and

to

a higher

significant

We

His

have some

removal

apparently

from a

work release

functioning well,

security facility,

unjust.

sympathy for

But

second-guess

general sense.

may

plaintiff's complaint.

program

and his

well,

from

in which

transfer to

his

he was

a medium

perspective,

seem

the federal courts are not authorized by law to

the

policies

The

of prison

question assigned

administrators

to

us

is

in

whether

plaintiff had a liberty interest in remaining in work release

status,

such

that under

the

Fourteenth

Amendment he

was

entitled to due process of law before that privilege could be

revoked.

the new

We are

constrained to agree

threshold test

with defendants that

articulated in Sandin
______

precludes our

finding a liberty interest and bars relief.6

As in Sandin, the state's action here did not in any way

______

affect

the duration of Dominique's state

at 2301-2302.

Additionally, his transfer

facility subjected him to

ordinarily

experienced

sentence.

to a more

See id.
___ ___

secure

conditions no different from those

by large

numbers

of other

serving their sentences in customary fashion.

inmates

In Sandin, the
______

Supreme

Court observed

that

conditions

in the

segregated

confinement at issue "mirrored

those conditions imposed upon

inmates

segregation

in

administrative

and

protective

present

case, the

____________________

6.

Sandin
______

applies retroactively

to the

Supreme Court having applied the rule

the parties in
Inc.,
____

that case.

See Rivers
___ ______

announced in Sandin to
______
v. Roadway Express,
_________________

114 S. Ct. 1510, 1519 (1994); Harper v. Virginia Dep't

______
______________

of Taxation, 113 S. Ct. 2510, 2517 (1993).

___________

-11-

custody."

Id. at
___

2301 (footnote omitted).

support in this similarity

on

comparison

disciplinary

there

Court found

for the proposition that "[b]ased

between

inmates

inside

and

outside

segregation, the State's actions in placing him

for 30

environment."

hardship

The

was

days did

not work

a major disruption

Id. (footnote omitted).

___

not "atypical"

in

in his

Similarly here, any

relation

to the

ordinary

incidents of prison life.

It is true that

between the freedoms

release

status

there is a considerable difference

Dominique enjoyed when

and the

conditions

of

he was in

work

incarceration at

medium security

of work

walls

facility.

release to

may

be said,

the

from the quasi-freedom

regimentation of

relatively

"significant" deprivation.

four

To return

speaking,

life within

to have

four

been

Nonetheless, confinement

within

walls of the type plaintiff now endures is an "ordinary

incident of prison life."

has noted

that an

dispositive of

It is not "atypical."

The Court

inmate's subjective expectations

__________

the liberty-interest analysis.

are not

See id., 115

___ ___

S.Ct. at 2301 n.9.

If Dominique's

we would

open the door to

whenever

an

inmate

is

contrary argument were

to prevail,

finding an "atypical...restraint"

moved

from

one

situation

to

significantly harsher one that is, nonetheless, a commonplace

aspect of prison

existence.

For example, a liberty interest

-12-

could

be claimed if an inmate were moved into less agreeable

surroundings

than

his

initial

placement.

Similarly,

liberty interest might be claimed whenever authorities or the

state

legislature

decided to

eliminate

or

cut back

work

release

programs or

furloughs.

those affected, could be

Such

changes, painful

to

regarded under plaintiff's argument

as implicating liberty interests even though the prisoner was

never placed in conditions

of

prison life.

going beyond the customary rigors

Such an outcome, we believe, would directly

conflict with Sandin's teachings.

______

expressly

afford

adopted by

appropriate

officials trying

2299.

a majority

deference

Sandin's new standard was

______

of

and

the Supreme

flexibility

Court "to

to

to manage a volatile environment."

state

Id. at
___

The Court plainly intended to eliminate the basis for

federal due process

claims stemming from internal

transfers

and status changes that do not result in "atypical hardship,"

i.e.,

hardship beyond

the

norms of

ordinary prison

life.

____

Hence the state's removal

replacing it

with

of Dominique's measure of freedom,

with confinement of a

sort commonly associated

ordinary prison life, did not violate anything that can

be termed a liberty

interest.

81

(a

(2d Cir.

1995)

strikingly similar

See Klos v.
___ ____

pre-Sandin
______

facts,

case denying

cited with

Sandin, 115 S. Ct. at 2299-2300).

______

-13-

Haskell, 48 F.3d
_______

relief

on

apparent approval

in

Plaintiff

shows

that execution

of

the Agreement

that a matter sufficiently important to give rise to a

liberty

do

urges

interest is at stake.

not enter

into

ordinary incidents

Prison officials, it is said,

agreements with

of prison

inmates concerning

life.

As the

the

district court

found, however, the

Agreement preserved broad decisionmaking

authority

officials

of state

impose any

duty

to retain

program.

And,

that

and the

plaintiff

analysis aside,

regulations did

in the

work

withdrawal

not

release

of

work

release privileges

working a

the

the

did not

meet Sandin's threshold

______

"significant and atypical hardship

ordinary incidents of prison life."

disappointment

and

withdrawal, the hardship

frustration

test of

in relation to

While we may regret

inherent

was not "atypical."

in

such

Cf. Bulger v.
___ ______

United States Bureau of Prisons, 65 F.3d 48, 49-50 (5th Cir.

________________________________

1995)

(inmate terminated

automatic

accrual of

liberty interest,

(9th Cir. 1995) (inmate

corrections

regulations);

good-time

despite

regulation); see also

___ ____

despite

from a

prison job

permitting the

credits lacked

apparent

violation

Mitchell v. Dupnik,
________
______

a protected

of

state

67 F.3d 216,

221

lacked a protected liberty interest,

officer's

Orellana v.

violation

Kyle, 65 F.3d

29, 32

of

prison

(5th Cir.)

________

("the

ambit of

____

[prisoners'] potential

Fourteenth Amendment

due process liberty claims has been dramatically narrowed" by

-14-

Sandin), petition for cert. filed, (U.S.

______
________________________

Sep. 15, 1995) (No.

95-6743).

Under

that

the standard

plaintiff's loss

affect any

of

announced

in Sandin,
______

work release

we hold

privileges did

state-created liberty interest of

not

his, hence did

not violate the Due Process Clause.7

IV. Ex Post Facto Clause

IV. Ex Post Facto Clause

Plaintiff asserts a violation

Clause

based

treatment and

release.

on

new

movement of

See
___

103

DOC

state

of the Ex Post Facto

regulation

governing

sex offenders from

446.8

The

the

commitment to

regulation

became

____________________

7.

The inmate

in Sandin

based his

claim to

a protected

______
liberty interest on state
written agreement

with the state,

The parties have not

this reason.

regulations alone, and not on

argued that Sandin is

______

present here.

inapplicable for

This court's prior relevant cases

a language-focused approach
whether or not an
941

as is also

have applied

to the state scheme as

agreement was involved.

any

See,
___

a whole,

e.g., Rodi,
____ ____

F.2d at 26 ("Our own precedents similarly teach that the

appropriate
beyond

[Thompson/Hewitt] constitutional
________ ______

the

State's

regulations,

statutes

contractual

to

analysis looks

administrative

commitments,

and

the

rules,
like.");

Lanier, 876 F.2d at 248.

______

8.

The Sex

serving a

Offender Treatment

sentence for

policy applies

or convicted

in the

to inmates

past of

a sex

offense, or serving a sentence for a non-sexual offense where

"[t]here are sexual overtones in

the reading of the official

version of a crime for which the inmate may have been charged
and

sentenced."

103 DOC

446.08.

goal is "to create a system

service from the
committed,

time an

until he/she

hopefully beyond."

Id.
___

The

policy's expressed

in which there is a continuum of

inmate with such

is released

to the

a background

is

community, and

446.07.

The policy requires identified sex offenders to complete

a four-phase treatment program

at a medium security facility

-15-

effective

in

incarcerated

been

October

1994,

that

time

plaintiff

was

at the medium security facility to which he had

transferred following

earlier

at which

year.

his

removal from

Plaintiff

does

Commonwealth's contention

that under

presently

participate in

ineligible

to

not

work

release

dispute

the regulation, he

the

work

the

is

release

program.

for

While the district court did not articulate a basis

this

ineligibility

plaintiff appears

(instead

to be an

not be moved to a minimum

privileges,

unless

treatment program,

approval

for

assuming

that

identified sex offender

was

so),

who may

security facility, with associated

and until

he

successfully completes

admits his offense, and otherwise obtains

a transfer.

See id.
___ ___

446.07, 446.08(4),

446.13.

The district court

the regulation amounted

to

plaintiff's

regulation

to punishment applied

offense.

was "driven

rejected plaintiff's claim that

The

by

court

retroactively

reasoned

safety concerns,

and

that

not by

the

____________________

as

precondition

for

transfer.

It

outlines

transition phases and evaluation processes as well.

appears

ultimately

defined to

include inmates

offense, those
regard

possible

who "refuse

to their

absent
who

"program

remain in

and those

Transfer
failures,"

denial of

to participate or

offense(s),"

further

their

minimize with

at the

non-secure

facility treatment phase who move toward relapse or otherwise

become

"at risk."

contain a

Id.
___

446.13.

sex offender "notice of

is not at issue in this appeal.

-16-

The

regulations

also

release" provision, which

See id.
___ ___

446.14.

desire

to

impose

further

punishment on

prisoners."

We

affirm, again guided by a recent Supreme Court decision.9

The Ex

shall . . . pass

art.

10.

changes the

than

Post Facto

Clause provides that

any . . . ex post facto Law."

Ex post

facto laws include

punishment, and

inflicts a

"No State

U.S. Const.

"'every law that

greater punishment,

the law annexed to the crime, when committed.'"

Miller
______

v. Florida, 482 U.S. 423, 429 (1987) (quoting Calder v. Bull,

_______
______
____

3 U.S. (Dall.) 386, 390 (1798)).

Defendants have not argued that the new

is

not a "law"

for ex post

facto purposes.

regulation

There is some

disagreement among the

v.

Noot,
____

503

U.S.

dissenting) (noting

to revised

circuits on this matter.

952, cert.denied,
___________

(1992)

circuit split on whether

state parole regulations).10

In

Cf. Bailey
___ ______

(White,

J.,

Clause applies

past cases

we

barred by

our

____________________

9.

Plaintiff's ex

above

post facto

claim is not

ruling that he lacks a protected liberty interest.

As

the Supreme Court has stated, "Evaluating whether a right has

vested

is important

Process

Clauses,

entitlements

for claims under

which

. . . .

solely
The

protect

presence

affirmative, enforceable right

the ex post facto prohibition. .
U.S.

the Contracts

or

pre-existing
absence

is not relevant,
. ."

or Due

of

an

however, to

Weaver v. Graham, 450

______
______

24, 29-30 (1981); Jones v. Georgia State Bd. of Pardons

_____
____________________________

& Paroles, 59 F.3d 1145, 1148 n.6 (11th Cir. 1995).

_________

10.

The

dispute

appears

to

turn

on

whether a

rule

is

legislative (based on a delegation of statutory authority) or

merely

interpretive,

and

whether

legislative

rule

is

binding or merely guides the exercise of discretionary power.

See, e.g., Jones,
___ ____ _____
state

parole

Shoemaker,
_________
binding

59 F.3d

rules

at 1149 n.8

and

46 F.3d 503,

comparing
509 (6th Cir.)

parole regulations),

(applying Clause
cases);

Kellogg
_______

to
v.

(applying Clause to

cert. denied,
____________

116 S.

Ct. 120

-17-

have applied the Clause to the federal Sentencing Guidelines,

see,
___

e.g., United States v. Harotunian, 920 F.2d 1040, 1041____ _____________

__________

1042 (1st Cir. 1990), and rules issued by a state agency, see
___

Martel
______

v.

Fridovich,
_________

(Massachusetts

address

the

parties

have

14

Department of

possible

not

1,

(1st

raised the

of these

issue

Nos. 94-2018, 94-1999, slip

Cir.

We

holdings,

and

we

assuming arguendo

to the regulation at issue.

27, 1995)

Mental Health).

limits

violation occurred, even

applies

F.3d

1993)

need not

for

find that

that the

the

no

Clause

Accord Hamm v. Latessa,

______ ____
_______

op. at 21 & n.14

(declining to decide whether

(1st Cir. Dec.

a parole eligibility

policy was a "law" for ex post facto purposes).

The Supreme Court has

reiterated recently that the

proper focus of ex post facto inquiry is whether the relevant

change

"alters

the

definition

of

criminal

conduct

or

increases the penalty

_______________________

is

punishable."

California Dep't of Corrections v. Morales, 115

_______________________________
_______

S. Ct. 1597,

1602

n.3 (1995)

by

(emphasis

which a

crime

supplied); see
___

also Collins
____ _______

(1990) (citing

Calder, 3
______

v.

Youngblood, 497 U.S.

__________

37, 43

U.S.

(Dall.) at 391-392).

Morales examined a California statutory

_______

amendment which authorized the Board of Prison Terms to defer

____________________

(1995) and
1147,

116 S. Ct. 274

1149-1150 (11th

release

(1995); Francis v.
_______

Cir. 1988)

(holding that

state work

regulation was not an ex post facto "law"); Faruq v.

_____

Herndon, 831 F. Supp. 1262, 1279-1280

_______
that

Fox, 838 F.2d

___

work release

and

(D. Md. 1993) (holding

security classification

regulations

were not ex post facto "laws"), aff'd, Briscoe v. Herndon, 56

_____ _______
_______
F.3d 60 (4th Cir. 1995).

-18-

for

up

to

three

years

multiple murderers.

violation,

speculative

because the

and

parole

The

Court

amendment

attenuated

suitability

found

no

hearings

ex

post

"create[d] only

possibility

of

for

facto

the most

producing

the

prohibited effect of increasing the measure of punishment for

covered crimes."

Morales, 115 S. Ct. at 1603.

The Court did

_______

not

develop

precise

judgments "must
____

be

formula;

a matter

citation omitted).

rather,

of 'degree.'"

It stated,

it

said,

Id.
___

however, that a

these

(internal

change that

"simply 'alters the method to be followed' in fixing a parole

release date under identical substantive standards," but does

not change the applicable sentencing range, was insufficient.

Id.
___

at

1602

(internal

citation omitted);

cf.
___

Miller
______

v.

Florida, 482 U.S. 423 (1987) (violation found where statutory

_______

amendment increased presumptive

sexual offenses

and permitted departure only

convincing reasons");

(violation

found

sentencing range for certain

Weaver v.
______

where

for "clear and

Graham, 450 U.S.

______

the statute

retroactively

24 (1981)

reduced

"gain

time" credits

to prisoners,

thereby

eliminating the

lower end of the possible range of prison terms).

The question

here, as

in Morales, is
_______

whether the

instant regulation "increases the penalty by which a crime is

punishable."

argued that

Morales, 115
_______

S. Ct. at

1602 n.3.

the regulation increases the

It can be

penalty because it

subjects Dominique to a different and stricter prison regime:

-19-

unless

and

treatment

denied,

security

until he

program and admits

he must

however, that

and

id.
___

remain

lower security

this change in the

of his confinement while

allowed alteration in

than

to a crime

remain confined

facility

associated with

nature

successfully completes

at no

the prescribed

he continually has

less than

ineligible

for

imprisonment.

We

a medium

privileges

conclude,

conditions determining the

serving his sentence was an

the prevailing

"legal regime"

rather

an "increased penalty" for ex post facto purposes.

at 1603

n.6;

cf. In re Medley, 134

___ ______________

U.S.

See
___

160 (1890)

(discussing

extreme

penalty

finding

ex post

facto

an

of

solitary

violation

confinement

where a

new

and

statute

required a prisoner to serve four weeks in complete isolation

before being executed

Ewell
_____

v. Murray,
______

at a

11 F.3d

time unknown to

482, 487

him); see also

_________

(4th Cir.

1993), cert.
_____

denied, 114 S. Ct. 2112 (1994) (finding that a new regulation

______

punishing a prisoner's refusal

to submit to a DNA test

by a

loss of good-time credits and possible isolated placement for

up

to 15

days was not

"reasonably within

the

an ex

post facto

violation but was

administrative structure

of

prison

authority that attends every sentence").

The

change

does

not

affect

Dominique's sentence or his parole options.

the

length

of

Cf. Morales, 115

___ _______

S.

Ct. at

1603

prisoner's actual

& n.6

(emphasizing

speculative effect

term of confinement, and

on

stating that the

-20-

ex post facto clause

carried out under the

does not "require that the

sentence be

identical legal regime that previously

prevailed"); Hamm, slip op.

____

at 28 (finding no ex

post facto

violation

where a

prisoner's initial

risk

899

revised parole

parole

hearing presented

of extending his sentence).

F. Supp.

96,

99 (N.D.N.Y.

making an applicant for work

not an ex post facto

Supp.

policy which

750,

758

postponed a

speculative

Compare Vargas v. Pataki,

_______ ______
______

1995) (statutory

amendment

release no longer eligible

violation) with Knox v. Lanham, 895

____ ____
______

(D.Md.

1995)

(change

in

was

F.

security

classification and work release policies violated the ex post

facto clause where they

"directly impact[ed] upon

[lifers']

actual eligibility for parole").

While the matter is perhaps close, we conclude that

plaintiff

has

not

increased penalty for

satisfied

his crime.

his

burden

of

showing

an

See Morales, 115 S. Ct. at

___ _______

1602

n.3

(challenging

establishing

changed").

methods

of

time,

that

the

party

has

"ultimate

burden

of

measure

of

punishment

itself

has

The regulation

appears primarily to

affect the

followed to treat certain sex offenders for a period

e.g.,
____

with

regard

treatment

programs.

encourage

close scrutiny

procedural or

The

Ex

to

facility

Post

by the

Facto Clause

federal courts

operational changes in

-21-

placement

prisons to

does

and

not

of ongoing

coordinate

treatment, promote security,

and protect the public

See id. at 1603; Martel, 14 F.3d at 2.

___ ___
______

Affirmed.
_________

safety.

-22-