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 G. Dietrick, Deputy General Counsel, with whom Nancy
Ankers White, Special Assistant Attorney General, and Herbert C.
Hanson, Senior Litigation Attorney, Massachusetts Department of
Correction, were on brief for appellees.
January 18, 1996
*Judge Boudin heard oral argument in this matter but has not participated in the issuance of the panel's opinion. The remaining two panelists therefore issue this opinion pursuant to 28 U.S.C. 46(d).
CAMPBELL, Senior Circuit Judge. Plaintiff James
Dominique, a sentenced inmate in the Massachusetts prison
system, was returned to confinement after he had been allowed
to participate in a work release program for almost four
years. 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. 1983, alleging
violations of the Due Process Clause of the Fourteenth
Amendment and the Ex Post Facto Clause. We affirm, albeit
for different reasons in light of recent Supreme Court
decisions.
I. Facts I. Facts
Plaintiff was imprisoned in 1983 for multiple
crimes including incest and is scheduled for release in June
2000. In August 1987, he was transferred to the minimum
security Massachusetts Correctional Institution at Lancaster
("MCI-Lancaster"). In May 1988, the Superintendent of MCI-
Lancaster permitted him to renew his driver's license in
connection with work he was then doing on state vehicles. In
August 1990, plaintiff was approved for the Community Work
Release Program. He became a mechanic for R.M.J.
Transportation, Inc., and the following year was permitted to
open his own vehicle repair business.
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Plaintiff remained in good standing in the work
release program. However, in the summer of 1993, access to
his license and the keys to his personal vehicle was revoked,
causing him to lose his job at R.M.J. Transportation. In
April 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 on June
13 and September 23, 1994. Each time, a committee majority
recommended plaintiff's transfer to a lower security
facility. The Commissioner overruled these recommendations.
Plaintiff remains at MCI-Shirley.
Defendants1 say that they revoked plaintiff's
privileges because he remains in denial of his crime (in
particular, the incest), and because he had too little
accountability at his repair business. They justify taking
away plaintiff's license because of revised DOC guidelines
providing that only inmates within six months of an approved
release date are eligible to use their licenses. They add
that his crime makes him a risk to the public safety, and
that, having been denied parole on three occasions, he is
1. The defendants are William Weld, Governor of Massachusetts, Thomas Rapone, then-Commissioner of the Department of Public Safety, Larry E. Dubois, Commissioner of the Massachusetts Department of Correction, and Luis Spencer, Superintendent of MCI-Lancaster.
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more likely to attempt to escape. Plaintiff responds that he
has never violated any condition of the Community Release
Agreement ("Agreement").2 He claims that his removal
resulted from media and public uproar following an incident -
- wholly unrelated to him -- in which an MCI-Lancaster
escapee shot a police officer. Plaintiff was never given a
written statement of reasons for his removal. New
regulations concerning the treatment of sex offenders make
plaintiff presently ineligible for work release.
In his district court action, plaintiff alleged
that these changes in his status violated the Due Process
Clause of the Fourteenth Amendment and the Ex Post Facto
Clause. He requested 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 Agreement for Lancaster pre- release programs requires a participating inmate to signify his understanding that "[i]n accepting and participating in community release programs including all furloughs, work release, and education release opportunities, [he] voluntarily accept[s] the following conditions . . . ." The participant cannot leave the state, cannot leave his assigned location during breaks unless authorized to do so, must be aware of specific requirements and arrangements for each specific release activity, must cooperate with requested medical examinations or searches of lockers 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 of community release policies will result in [the participant's] being subject to disciplinary action or prosecution and will not be considered in the future community participation requests."
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created liberty interest. This being so, the Fourteenth
Amendment did not require the state to provide procedures
prior to removing him from the program and returning him to
prison. The district court also found no violation of the Ex
Post Facto Clause, because the new regulations governing
participation in work release were not punitive but rather
related to the 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 district court dismissed plaintiff's claims in
response to defendants' motion in the alternative for
dismissal under Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P.
56. The district court recited the standard governing
12(b)(6) motions to dismiss, but it relied in part on
materials outside of the pleadings (including the Agreement
and affidavits) to determine whether plaintiff enjoyed a
protected liberty interest entitling him to procedural due
process before removal from the work release program. We
3. The district court dismissed plaintiff's pendant state law claims without prejudice, pursuant to 28 U.S.C. 1367(c)(3). While appellant's counsel claimed at oral argument a lack of substantive as well as procedural due process, the former theory is not briefed nor does it appear to have been developed below. Accordingly, it was waived. See Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 36 (1st
Cir. 1994).
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therefore treat the motion as one for summary judgment. See
Smith v. Massachusetts Dep't of Correction, 936 F.2d 1390,
1394 (1st Cir. 1991); Fed. R. Civ. P. 12(b)(6). We review a
grant of summary judgment de novo, viewing the facts in the
light most favorable to the nonmovant, plaintiff. 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 Fourteenth Amendment provides that no state
shall "deprive any person of life, liberty, or property
without due process of law." U.S. Const. amend. XIV. The
focal issue here is whether plaintiff was deprived of a
protected liberty interest. Plaintiff has not asserted that
he possessed a liberty interest created by the federal
Constitution itself.4 Rather, he has contended that
4. The Supreme Court has recognized that, in certain circumstances, the Constitution itself may give rise to a liberty interest. See, e.g., Washington v. Harper, 494 U.S.
210, 221-222 (1990) (involuntary administration of antipsychotic drugs); Vitek v. Jones, 445 U.S. 480 (1980)
(involuntary commitment to a mental hospital); Morrissey v.
Brewer, 408 U.S. 471 (1972) (revocation of parole).
Generally, prisoners under confinement do not have a constitutionally-derived liberty interest. See, e.g., Hewitt
v. Helms, 459 U.S. 460 (1983) (state action taken within
sentence imposed); Meachum v. Fano, 427 U.S. 215 (1976)
(transfer to higher security prison); Bowser v. Vose, 968
F.2d 105, 106 (1st Cir. 1992) (denial of furlough); Lanier v.
Fair, 876 F.2d 243, 246 (1989) (removal from halfway house
program); Brennan v. Cunningham, 813 F.2d 1, 6 (1st Cir.
1987) (same).
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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 to expect to remain in
the work release program so long as he did not violate some
express condition. Dominique relied on cases holding that a
liberty interest may be created by "explicitly mandatory
language" within state regulations. See Kentucky Dep't of
Corrections v. Thompson, 490 U.S. 454, 463 (1989); Hewitt v.
Helms, 459 U.S. 460, 471-472 (1983); see also Olim v.
Wakinekona, 461 U.S. 238, 249 (1983) ("particularized
standards or criteria [to] guide the State's decisionmakers")
(citation omitted). Dominique pointed to cases of this
circuit holding that a signed agreement outlining criteria
for participation in and removal from a prison release
program may evidence a state-created liberty interest.
Lanier v. Fair, 876 F.2d 243 (1st Cir. 1989); Brennan v.
Cunningham, 813 F.2d 1 (1st Cir. 1987).
The Tenth Circuit recently recognized a constitutionally-derived liberty interest in a case involving a state pre-parole conditional supervision program. See
Harper v. Young, 64 F.3d 563, 566 (10th Cir. 1995) (citing
Edwards v. Lockhart, 908 F.2d 299, 302-303 (8th Cir. 1990)
for the proposition that parole and work release 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").
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The district court analyzed the state regulations
and Agreement under Thompson, Hewitt, Olim criteria. It
concluded that the language relating to Dominique's interest
in participating and remaining in the work release program
was too provisional to create a constitutionally-protected
liberty interest. Neither the regulations nor the Agreement
required officials to grant work release status initially or
indefinitely. Despite certain similarities between
plaintiff's Agreement and agreements in Brennan and Lanier,
the district court determined that, under our latest
precedent, language of a more mandatory character was
essential.5
Plaintiff appealed. Within a week of filing his
appellate brief, the Supreme Court issued its opinion in
Sandin v. Conner, infra, modifying the standard for
determining the existence of a state-created liberty
interest.
5. See Bowser v. Vose, 968 F.2d 105, 108 (1st Cir. 1992) (a
regulation providing that "[a] resident who satisfies one of the [six enumerated] purposes . . . shall be eligible for furlough" was insufficient to create a liberty interest, for "[a]bsent from the regulations . . . is any mandatory language directing that a furlough must be granted to any
inmate who satisfies the eligibility requirements"); Rodi v.
Ventetuolo, 941 F.2d 22, 25 (1st Cir. 1991) (clearly
mandatory regulatory language placed definite substantive limits on officials' actions, 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 lack of mandatory language limiting discretion in both the contract and the regulations).
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B. Sandin v. Conner Sandin v. Conner
In Sandin v. Conner, 115 S. Ct. 2293 (1995) (5-4),
the Court criticized its former precedent under which courts
examined the language in state statutes and regulations to
determine whether a liberty interest was created. This
doctrine "encouraged prisoners to comb regulations in search
of mandatory language on which to base entitlements to
various state-conferred privileges." Id. at 2299. The Court
expressed two policy concerns: its prior approach "creates
disincentives for States to codify prison management
procedures in the interest of uniform treatment." Id. The
old approach also "has led to the involvement of federal
courts in the day-to-day management of prisons," contrary to
cases affording state officials appropriate deference and
flexibility in prison management. Id.
The Court held that states may still create liberty
interests that afford prisoners due process protections, but
explained:
[T]hese interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force . . . , nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary
incidents of prison life.
Id. at 2300 (internal citations omitted) (emphasis supplied).
Applying this standard to the situation in Sandin, the Court
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concluded that disciplining a prisoner for thirty days in
segregated confinement "did not present the type of atypical,
significant deprivation in which a state might conceivably
create a liberty interest." Id. at 2301.
C. Applying Sandin C. Applying Sandin
Defendants argue that Sandin requires this court to
affirm the district court's dismissal of plaintiff's due
process claim. They agree with the lower court that the
language of the regulations and Agreement was insufficient to
create a liberty interest in any event, but argue that
removal from work release and return to regular confinement
did not meet Sandin's new threshold criterion of an "atypical
and significant hardship . . . in relation to the ordinary
incidents of prison life." Id. at 2300. If solitary
confinement for thirty days did not, in Sandin, rise to the
level of an "atypical, significant hardship," then surely
removal from work release does not do so, defendants say.
Plaintiff replies that Sandin is unclear about the
extent to which the standard for recognizing liberty
interests has changed. He argues that the Due Process Clause
still protects inmates against important deprivations, and
that removal from work release and transfer to a higher
security prison constitute an "atypical and significant
hardship."
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We have some sympathy for plaintiff's complaint.
His removal from a work release program in which he was
apparently functioning well, and his transfer to a medium
security facility, may well, from his perspective, seem
unjust. But the federal courts are not authorized by law to
second-guess the policies of prison administrators in a
general sense. The question assigned to us is 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. We are constrained to agree with defendants that
the new threshold test 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 sentence. See id.
at 2301-2302. Additionally, his transfer to a more secure
facility subjected him to conditions no different from those
ordinarily experienced by large numbers of other inmates
serving their sentences in customary fashion. In Sandin, the
Supreme Court observed that conditions in the segregated
confinement at issue "mirrored those conditions imposed upon
inmates in administrative segregation and protective
6. Sandin applies retroactively to the present case, the
Supreme Court having applied the rule announced in Sandin to
the parties in that case. See Rivers v. Roadway Express,
Inc., 114 S. Ct. 1510, 1519 (1994); Harper v. Virginia Dep't
of Taxation, 113 S. Ct. 2510, 2517 (1993).
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custody." Id. at 2301 (footnote omitted). The Court found
support in this similarity for the proposition that "[b]ased
on a comparison between inmates inside and outside
disciplinary segregation, the State's actions in placing him
there for 30 days did not work a major disruption in his
environment." Id. (footnote omitted). Similarly here, any
hardship was not "atypical" in relation to the ordinary
It is true that there is a considerable difference
between the freedoms Dominique enjoyed when he was in work
release status and the conditions of incarceration at a
medium security facility. To return from the quasi-freedom
of work release to the regimentation of life within four
walls may be said, relatively speaking, to have been a
"significant" deprivation. Nonetheless, confinement within
four walls of the type plaintiff now endures is an "ordinary
incident of prison life." It is not "atypical." The Court
has noted that an inmate's subjective expectations are not
dispositive of the liberty-interest analysis. See id., 115
S.Ct. at 2301 n.9.
If Dominique's contrary argument were to prevail,
we would open the door to finding an "atypical...restraint"
whenever an inmate is moved from one situation to a
significantly harsher one that is, nonetheless, a commonplace
aspect of prison existence. For example, a liberty interest
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could be claimed if an inmate were moved into less agreeable
surroundings than his initial placement. Similarly, a
liberty interest might be claimed whenever authorities or the
state legislature decided to eliminate or cut back work
release programs or furloughs. Such changes, painful to
those affected, could be regarded under plaintiff's argument
as implicating liberty interests even though the prisoner was
never placed in conditions going beyond the customary rigors
of prison life. Such an outcome, we believe, would directly
conflict with Sandin's teachings. Sandin's new standard was
expressly adopted by a majority of the Supreme Court "to
afford appropriate deference and flexibility to state
officials trying to manage a volatile environment." Id. at
2299. 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 of Dominique's measure of freedom,
replacing it with confinement of a sort commonly associated
with ordinary prison life, did not violate anything that can
be termed a liberty interest. See Klos v. Haskell, 48 F.3d
81 (2d Cir. 1995) (a pre-Sandin case denying relief on
strikingly similar facts, cited with apparent approval in
Sandin, 115 S. Ct. at 2299-2300).
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Plaintiff urges that execution of the Agreement
shows that a matter sufficiently important to give rise to a
liberty interest is at stake. Prison officials, it is said,
do not enter into agreements with inmates concerning the
ordinary incidents of prison life. As the district court
found, however, the Agreement preserved broad decisionmaking
authority of state officials and the regulations did not
impose any duty to retain plaintiff in the work release
program. And, that analysis aside, withdrawal of work
release privileges did not meet Sandin's threshold test of
working a "significant and atypical hardship in relation to
the ordinary incidents of prison life." While we may regret
the disappointment and frustration inherent in such
withdrawal, the hardship was not "atypical." Cf. Bulger v.
United States Bureau of Prisons, 65 F.3d 48, 49-50 (5th Cir.
1995) (inmate terminated from a prison job permitting the
automatic accrual of good-time credits lacked a protected
liberty interest, despite apparent violation of a state
regulation); see also Mitchell v. Dupnik, 67 F.3d 216, 221
(9th Cir. 1995) (inmate lacked a protected liberty interest,
despite corrections officer's violation of prison
regulations); Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir.)
("the ambit of [prisoners'] potential Fourteenth Amendment
due process liberty claims has been dramatically narrowed" by
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Sandin), petition for cert. filed, (U.S. Sep. 15, 1995) (No.
95-6743).
Under the standard announced in Sandin, we hold
that plaintiff's loss of work release privileges did not
affect any state-created liberty interest of his, hence did
not violate the Due Process Clause.7
IV. Ex Post Facto Clause IV. Ex Post Facto Clause
Plaintiff asserts a violation of the Ex Post Facto
Clause based on a new state regulation governing the
treatment and movement of sex offenders from commitment to
release. See 103 DOC 446.8 The regulation became
7. The inmate in Sandin based his claim to a protected
liberty interest on state regulations alone, and not on any written agreement with the state, as is also present here. The parties have not argued that Sandin is inapplicable for
this reason. This court's prior relevant cases have applied a language-focused approach to the state scheme as a whole, whether or not an agreement was involved. See, e.g., Rodi,
941 F.2d at 26 ("Our own precedents similarly teach that the appropriate [Thompson/Hewitt] constitutional analysis looks
beyond the State's statutes to administrative rules, regulations, contractual commitments, and the like."); Lanier, 876 F.2d at 248.
8. The Sex Offender Treatment policy applies to inmates serving a sentence for or convicted in the 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. The policy's expressed goal is "to create a system in which there is a continuum of service from the time an inmate with such a background is committed, until he/she is released to the community, and hopefully beyond." Id. 446.07.
The policy requires identified sex offenders to complete a four-phase treatment program at a medium security facility
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effective in October 1994, at which time plaintiff was
incarcerated at the medium security facility to which he had
been transferred following his removal from work release
earlier that year. Plaintiff does not dispute the
Commonwealth's contention that under the regulation, he is
presently ineligible to participate in the work release
program. While the district court did not articulate a basis
for this ineligibility (instead assuming that was so),
plaintiff appears to be an identified sex offender who may
not be moved to a minimum security facility, with associated
privileges, unless and until he successfully completes a
treatment program, admits his offense, and otherwise obtains
approval for a transfer. See id. 446.07, 446.08(4),
446.13.
The district court rejected plaintiff's claim that
the regulation amounted to punishment applied retroactively
to plaintiff's offense. The court reasoned that the
regulation was "driven by safety concerns, and not by a
as a precondition for transfer. It outlines further transition phases and evaluation processes as well. Transfer appears ultimately possible absent "program failures," defined to include inmates who remain in denial of their offense, those who "refuse to participate or minimize with regard to their offense(s)," and those at the non-secure facility treatment phase who move toward relapse or otherwise become "at risk." Id. 446.13. The regulations also
contain a sex offender "notice of release" provision, which is not at issue in this appeal. See id. 446.14.
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desire to impose further punishment on prisoners." We
affirm, again guided by a recent Supreme Court decision.9
The Ex Post Facto Clause provides that "No State
shall . . . pass any . . . ex post facto Law." U.S. Const.
art. I 10. Ex post facto laws include "'every law that
changes the punishment, and inflicts a greater punishment,
than 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 regulation
is not a "law" for ex post facto purposes. There is some
disagreement among the circuits on this matter. Cf. Bailey
v. Noot, 503 U.S. 952, cert.denied, (1992) (White, J.,
dissenting) (noting circuit split on whether Clause applies
to revised state parole regulations).10 In past cases we
9. Plaintiff's ex post facto claim is not barred by our above ruling that he lacks a protected liberty interest. As the Supreme Court has stated, "Evaluating whether a right has vested is important for claims under the Contracts or Due Process Clauses, which solely protect pre-existing entitlements . . . . The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition. . . ." Weaver v. Graham, 450
U.S. 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 a legislative rule is binding or merely guides the exercise of discretionary power. See, e.g., Jones, 59 F.3d at 1149 n.8 (applying Clause to
state parole rules and comparing cases); Kellogg v.
Shoemaker, 46 F.3d 503, 509 (6th Cir.) (applying Clause to
binding parole regulations), cert. denied, 116 S. Ct. 120
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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, 14 F.3d 1, 3 (1st Cir. 1993)
(Massachusetts Department of Mental Health). We need not
address the possible limits of these holdings, for the
parties have not raised the issue and we find that no
violation occurred, even assuming arguendo that the Clause
applies to the regulation at issue. Accord Hamm v. Latessa,
Nos. 94-2018, 94-1999, slip op. at 21 & n.14 (1st Cir. Dec.
27, 1995) (declining to decide whether 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 by which a crime is punishable."
California Dep't of Corrections v. Morales, 115 S. Ct. 1597,
1602 n.3 (1995) (emphasis supplied); see also Collins v.
Youngblood, 497 U.S. 37, 43 (1990) (citing Calder, 3 U.S.
(Dall.) at 391-392). Morales examined a California statutory
amendment which authorized the Board of Prison Terms to defer
(1995) and 116 S. Ct. 274 (1995); Francis v. Fox, 838 F.2d
1147, 1149-1150 (11th Cir. 1988) (holding that state work release regulation was not an ex post facto "law"); Faruq v.
Herndon, 831 F. Supp. 1262, 1279-1280 (D. Md. 1993) (holding
that work release and security classification regulations were not ex post facto "laws"), aff'd, Briscoe v. Herndon, 56
F.3d 60 (4th Cir. 1995).
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for up to three years parole suitability hearings for
multiple murderers. The Court found no ex post facto
violation, because the amendment "create[d] only the most
speculative and attenuated possibility of producing the
prohibited effect of increasing the measure of punishment for
covered crimes." Morales, 115 S. Ct. at 1603. The Court did
not develop a precise formula; rather, it said, these
judgments "must be a matter of 'degree.'" Id. (internal
citation omitted). It stated, however, that a 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 sentencing range for certain
sexual offenses and permitted departure only for "clear and
convincing reasons"); Weaver v. Graham, 450 U.S. 24 (1981)
(violation found where the statute retroactively 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." Morales, 115 S. Ct. at 1602 n.3. It can be
argued that the regulation increases the penalty because it
subjects Dominique to a different and stricter prison regime:
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unless and until he successfully completes the prescribed
treatment program and admits to a crime he continually has
denied, he must remain confined at no less than a medium
security facility and remain ineligible for privileges
associated with lower security imprisonment. We conclude,
however, that this change in the conditions determining the
nature of his confinement while serving his sentence was an
allowed alteration in the prevailing "legal regime" rather
than an "increased penalty" for ex post facto purposes. See
id. at 1603 n.6; cf. In re Medley, 134 U.S. 160 (1890)
(discussing extreme penalty of solitary confinement and
finding an ex post facto violation where a new statute
required a prisoner to serve four weeks in complete isolation
before being executed at a time unknown to him); see also
Ewell v. Murray, 11 F.3d 482, 487 (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 an ex post facto violation but was
"reasonably within the administrative structure of prison
authority that attends every sentence").
The change does not affect the length of
Dominique's sentence or his parole options. Cf. Morales, 115
S. Ct. at 1603 & n.6 (emphasizing speculative effect on
prisoner's actual term of confinement, and stating that the
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ex post facto clause does not "require that the sentence be
carried out under the identical legal regime that previously
prevailed"); Hamm, slip op. at 28 (finding no ex post facto
violation where a revised parole policy which postponed a
prisoner's initial parole hearing presented a speculative
risk of extending his sentence). Compare Vargas v. Pataki,
899 F. Supp. 96, 99 (N.D.N.Y. 1995) (statutory amendment
making an applicant for work release no longer eligible was
not an ex post facto violation) with Knox v. Lanham, 895 F.
Supp. 750, 758 (D.Md. 1995) (change in 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 satisfied his burden of showing an
increased penalty for his crime. See Morales, 115 S. Ct. at
1602 n.3 (challenging party has "ultimate burden of
establishing that the measure of punishment itself has
changed"). The regulation appears primarily to affect the
methods followed to treat certain sex offenders for a period
of time, e.g., with regard to facility placement and
treatment programs. The Ex Post Facto Clause does not
encourage close scrutiny by the federal courts of ongoing
procedural or operational changes in prisons to coordinate
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treatment, promote security, and protect the public safety.
See id. at 1603; Martel, 14 F.3d at 2.
Affirmed.
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