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99 Fed.Appx. 188 Case 1:03-cv-01959-MSK-PAC

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99 Fed.Appx. 188, 2004 WL 1098851 (C.A.10 (N.M.)) Briefs and Other Related Documents This case was not selected for publication in the Federal Reporter. Please use FIND to look at the applicable circuit court rule before citing this opinion. Tenth Circuit Rule 36.3. (FIND CTA10 Rule 36.3.) United States Court of Appeals, Tenth Circuit. John HERRERA, Plaintiff-Appellant, v. Joe WILLIAMS, Warden, Central NM Correctional Facility, in his individual and professional capacities; Robert J. Perry, Secretary of New Mexico Department of Corrections, in his individual and professional capacities; John Doe, in his individual and professional capacities; Richard Roe, in his individual and professional capacities, Defendants-Appellees. No. 03-2248. May 18, 2004. Background: State prisoner brought pro se civil rights action, alleging that corrections officers violated his Eighth and Fourteenth Amendment rights by forcing him to remain in a maximum security mental health unit without a determination of his mental state, and that post-conviction application of the New Mexico Sex Offender Registration and Notification Act violated his rights under the ex post facto clause. The United States District Court for the District of New Mexico dismissed action. Prisoner appealed. Holdings: The Court of Appeals, Briscoe, Circuit Judge, held that: (1) prisoner did have liberty interest in having a particular prison classification; (2) allegations did not state claim for violation of Eighth Amendment rights; and (3) application of the New Mexico Sex Offender Registration and Notification Act did not violate the ex post facto clause. Affirmed. West Headnotes

[1] KeyCite Notes 92 Constitutional Law 92XII Due Process of Law 92k256 Criminal Prosecutions 92k272 Execution of Sentence 92k272(2) k. Imprisonment and Incidents Thereof. Most Cited Cases

310 Prisons KeyCite Notes 310k13.5 Transfer of Custody 310k13.5(2) k. Interstate and State-Federal Transfers. Most Cited Cases State prisoner did not have liberty interest in having a particular prison classification, so that the failure by the state department of corrections to transfer prisoner from a maximum security mental unit to a medium security facility did not violate his due process rights. U.S.C.A. Const.Amend. 14.

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[2] KeyCite Notes 310 Prisons 310k13 Custody and Control of Prisoners 310k13(5) k. Segregation and Solitary Confinement; Classification. Most Cited Cases

350H Sentencing and Punishment KeyCite Notes 350HVII Cruel and Unusual Punishment in General 350HVII(H) Conditions of Confinement 350Hk1553 k. Segregated or Solitary Confinement. Most Cited Cases Allegations by state prisoner that corrections officers placed him in segregation did not state claim for violation of his Eighth Amendment protection against cruel and unusual punishment, absent claims of wanton and unnecessary infliction of pain, or claims that segregation placement was grossly disproportionate to severity of offense. U.S.C.A. Const.Amend. 8.

[3] KeyCite Notes 92 Constitutional Law 92VIII Retrospective and Ex Post Facto Laws 92k198 Retroactive Operation of Ex Post Facto Laws 92k203 k. Nature or Extent of Punishment. Most Cited Cases

257A Mental Health KeyCite Notes 257AIV Disabilities and Privileges of Mentally Disordered Persons 257AIV(E) Crimes 257Ak433 Constitutional and Statutory Provisions 257Ak433(2) k. Sex Offenders. Most Cited Cases Application of the New Mexico Sex Offender Registration and Notification Act to state prisoner who was convicted the Act was effective did not violate the ex post facto clause, as Act imposed only civil burdens rather than criminal punishment. U.S.C.A. Const. Art. 1, § 9, cl. 3; West's NMSA § 29-11A-1. *189 John Herrera, # 41817, Las Cruces, NM, pro se. Before TACHA, Chief Circuit Judge, BRISCOE and HARTZ, Circuit Judges. ORDER AND JUDGMENTFN* FN* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

MARY BECK BRISCOE, Circuit Judge. **1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

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Plaintiff John Herrera, a state prisoner appearing pro se, appeals the district court's dismissal of his complaint for failure to state a claim. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I. Herrera is a prisoner at the Southern New Mexico Correctional Facility in Las Cruces, New Mexico. He filed his complaint under 42 U.S.C. §§ 1983, 1985, and 1986, claiming officers and agents of the New Mexico Department of Corrections violated his Eighth and Fourteenth Amendment rights. Specifically, he alleged that, without a determination of his mental state, the Central New Mexico Correctional Facility forced him to remain in a maximum security mental health unit. Additionally, in his amended complaint, Herrera alleged post-conviction application of the New Mexico Sex Offender Registration and Notification Act, N.M. Stat. Ann. § 29-11A-1 (2004), violated his rights under the ex post facto clause. The district court dismissed Herrera's complaint for failure to state a claim. II.

Refusal to transfer Herrera from a maximum to a medium security facility does not rise to the [1] level of a due process violation. Prisoners do not have a liberty interest in a particular prison classification where the state retains discretion in classifying prisoners. See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994); Bailey v. Shillinger, 828 F.2d 651, 652 (10th Cir.1987). The Supreme Court has held that classifying a prisoner in administrative*190 segregation does not involve deprivation of a liberty interest independently protected by the Constitution's due process clauses. See Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). [2] Nor has Herrera alleged facts which, if proven, would tend to show he was subjected to cruel and unusual punishment. "[P]lacing an inmate in segregation as a preventive measure does not necessarily violate the Eighth Amendment." Shillinger, 828 F.2d at 653. To prevail, Herrera must allege facts which "involve the wanton and unnecessary infliction of pain" or are "grossly disproportionate to the severity of the crime warranting imprisonment." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). III.

Although the claim is vague and unclear, Herrera appears to contend that application of the [3] New Mexico Sex Offender Registration Act to him violates the ex post facto clause because he was convicted before the Act was effective. Among laws prohibited by the ex post facto clause are those that "make[ ] more burdensome the punishment for a crime, after its commission." Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (internal quotations omitted). However, sex offender registry laws do not fall within the purview of the ex post facto clause because they impose only civil burdens upon sex offenders and do not implicate criminal punishments, as required by the ex post facto clause. See Femedeer v. Haun, 227 F.3d 1244, 1253 (10th Cir.2000) (analyzing Utah sex offender registry); see also Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (upholding Alaska sex offender registration act against ex post facto clause challenge on grounds that act was intended as a civil, non-punitive statute). Herrera has presented no evidence tending to establish the New Mexico statute is in any way different. **2 AFFIRMED. All pending motions are DENIED. Copr. (C) West 2006 No Claim to Orig. U.S. Govt. Works C.A.10 (N.M.),2004. Herrera v. Williams 99 Fed.Appx. 188, 2004 WL 1098851 (C.A.10 (N.M.)) Briefs and Other Related Documents (Back to top)

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99 Fed.Appx. 188 Case 1:03-cv-01959-MSK-PAC
· 03-2248 (Docket) (Oct. 20, 2003) END OF DOCUMENT

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(C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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