F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           FEB 22 2005
                           FOR THE TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                               Clerk
    ALLEN ISAAC FISTELL,

               Plaintiff-Appellant,

    v.                                                  No. 03-1285
                                                     (D.C. No. 03-Z-284)
    GARY NEET, Superintendent, F.C.F.;                    (D. Colo.)
    CHARLES OLIN, Mental Health,
    F.C.F.; LT. BRADFORD, F.C.F.
    CH-4; RICHARD LINNS, Mental
    Health, F.C.F.; RICK MARTINEZ,
    Case Manager III, F.C.F.; NARD
    CLAAR, Associate Superintendent,
    F.C.F.; JOSEPH ORTIZ, Executive
    Director, C.D.O.C.; COLORADO
    DEPARTMENT OF CORRECTIONS;
    CHARLENE CORDO, C/O, CH-4
    F.C.F.,

               Defendants-Appellees.


                           ORDER AND JUDGMENT            *




Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.             **




*
       This order and judgment is not binding precedent, except under the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.
**
       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.
      The plaintiff Allen Isaac Fistell, a state prisoner in the custody of the

Colorado Department of Corrections proceeding pro se, appeals the district

court’s dismissal of his pro se civil rights action brought pursuant to 42 U.S.C.

§ 1983. In his complaint, Mr. Fistell alleges that the defendant prison officials

violated his rights by classifying him as a sex offender based on an accusation by

a prison guard. Specifically, he contends that he was so classified without due

process, that the subsequent denial of earned time credits has subjected him to

cruel and unusual punishment under the Eighth Amendment, and that he has been

denied equal protection because the defendants required him to participate in a

sex offender treatment program. He seeks expungement of his classification as a

sex offender and a restoration of earned-time credits. See Rec. doc. 3, at 8

(Complaint, filed Feb. 14, 2003).

      The district court reviewed each of Mr. Fistell’s claims and dismissed his

action as frivolous under 28 U.S.C. § 1915(e)(2)(B). We conclude that the

district court properly dismissed Mr. Fistell’s Eighth Amendment and equal

protection claims, but that it erred in finding Mr. Fistell’s due process claim to be

frivolous under § 1915(e)(2)(B). Therefore, we affirm in part, vacate in part, and

remand for further proceedings.




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                                   I. BACKGROUND

       Mr. Fistell alleges that   on November 1, 1997, prison officials classified him

as a sex offender on the basis of a female prison guard’s observation of him

masturbating in his cell. According to the guard’s report, Mr. Fistell’s actions

were obviously taken “deliberately for [her] benefit as graveyard male staff ha[d]

not observed this” behavior and that she had “observed this on one prior

occasion.” Rec. doc. 3, at 9 (incident report, attached to complaint)

(capitalization omitted).

       In March 2000, this court decided     Chambers v. Colorado Department of

Corrections , 

(10th Cir. 2000). We concluded that the Colorado

Department of Corrections (CDOC) had provided “a liberty interest in the

consequences of the     mandatory [sex offender] label which it then arbitrarily

removed without affording [the plaintiff inmate] any opportunity to a hearing to

challenge the label.”    

(emphasis in original). We further concluded

that “those consequences are a benefit which cannot be taken away without some

process.” 

the plaintiff inmate [in      Chambers ] received no

hearing whatsoever, we were not required to address the particular procedural

protections that must be provided to inmates who have never been convicted of a

sex offense before prison officials may classify them as sex offenders in a manner




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that deprives them of a liberty interest.”    Gwinn v. Awmiller , 

,

1218 (10th Cir.), cert. denied , 

(2004).

       In June 2000, following the     Chambers decision, prison officials notified

Mr. Fistell that he had a right to an administrative review of his classification.

The notice stated that the evidence of “sexually violent/abusive behavior which

should be identified for rehabilitative purposes” consisted of the November 1997

report of “masturbating in view of the cellhouse control center,” and that “[t]he

report documents two occurrences of this behavior.” Rec. doc. 3, Notice of Right

to an Administrative Review (attached to complaint) (unnumbered).

       The notice required Mr. Fistell to complete a form requesting an

administrative hearing and specifically stated that he could “call witnesses and

present documentary evidence at the hearing if [he] believe[d he had] not engaged

in sexually violent/abusive behavior.”       

requested and received a

hearing.

       Following the hearing, Mr. Fistell received a notice stating that he would

be classified as a sex offender because he had “behaved in a sexually violent and

abusive manner based on the following evidence: CDOC records state that Inmate

Festal [sic] did subject a female staff member to an act of masturbation on no less

than 2 occasions” and that he “h[ad] not offered any credible explanation that

would avoid the conclusion that [he] h[ad] behaved in a sexually violent and/or


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abusive manner and that behavior may threaten the safety of the public upon

release, or the safety of facility staff and offenders.” Rec. doc. 3, Attach. E.

      In his pro se 42 U.S.C. § 1983 complaint, Mr. Fistell named as defendants

several CDOC officers, as well as the CDOC itself. He alleged violations of the

Due Process and Equal Protection Clauses of the Fourteenth Amendment and of

the Eighth Amendment. In support of his due process and equal protection

claims, he asserted:

             I have been denied Placement in Community Corrections
             for not taking Sex Offender Treatment even though the
             defendants are aware that I am not a convicted sex
             offender. I have been denied parole for not taking sex
             offender treatment, even though the defendants are aware
             that I am not a convicted sex offender. These have been
             done in violation of my equal protection rights to due-
             process of law and equal treatment with offenders like
             myself who are not convicted sex offenders. Other
             offenders who are not convicted sex offenders are not
             required to participate in programs unrelated to their
             crime.

Rec. doc. 3, at 5 (capitalization omitted). In support of his Eighth Amendment

claim, Mr. Fistell alleged that his classification as a sex offender led to a loss of

earned time credit and thus constituted cruel and unusual punishment.

      The district court dismissed Mr. Fistell’s complaint as legally frivolous

under 28 U.S.C. § 1915(e)(2)(B), prior to requiring a response by the state. Rec.

doc. 7. As to the due process claim, the court reasoned that Mr. Fistell “was

given a hearing in June 2000 to determine whether he should be classified as a

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sex offender as a result of the November 1997 incident report. He does not allege

that he was unable to challenge the factual basis for his classification as a sex

offender at that hearing.”   Id at 3. As to the Eighth Amendment claim, the court

noted that Mr. Fistell had failed to allege that he had been deprived of the

“‘minimal civilized measure of life’s necessities.’”    

(quoting Wilson v.

Seiter , 

, 298 (1991) (quoting     Rhodes v. Chapman , 

, 347

(1981))).

       Finally, as to the equal protection claim, the court reasoned that:

              [t]he . . . claim lacks merit because the inmates with whom
              Mr. Fistell compares himself are not similarly situated. In
              order to state an equal protection claim, Mr. Fistell must
              demonstrate that he is being treated differently than
              another inmate who has not been convicted of a sex
              offense, but who has been determined to be a sex offender
              pursuant to the DOC administrative review process. Mr.
              Fistell does not allege that any of the inmates who
              allegedly are similarly situated have been determined to be
              sex offenders by the DOC.

 

       Mr. Fistell then filed a motion to amend the judgment. Focusing on his due

process claim, he contended that the administrative review panel that conducted

the hearing on his classification as a sex offender had no rules and that its

members had no training at designating sex offenders.      He further stated that

contrary to the statement in the notice of the hearing, he was, in fact, not allowed

to call witnesses. Rec. doc. 8,   at 6. He also claimed that the denial of assistance

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from an inmate representative violated the requirements of        Wolff v. McDonnell ,

(1974).      

Mr. Fistell challenged the evidence relied on as the basis for

his sex offender classification. In particular, he asserted that the female guard

(who was not present at the hearing) had initially tried to use the incident as the

basis of a disciplinary charge against him, and, when that was unsuccessful, had

persuaded someone in the mental health department to change his classification to

that of a sex offender.    

Mr. Fistell contended that, in essence, he was

labeled as a sex offender based on an old unsworn, unverified allegation never

tested at an in-person hearing.    

further stated that there is no

administrative appeal from the sex offender labeling.        

Finally,

Mr. Fistell asked “to allow amendment to the factual statements in the

complaint.” 

court denied the Rule 59 motion, construing it as a

disagreement with the result of his administrative review and determining that

Mr. Fistell had failed to establish any of the grounds justifying the court’s

reconsideration. Rec. doc. 9, at 1-3. The court did not address Mr. Fistell’s claim

that he was not permitted to call witnesses, explaining that Mr. Fistell had argued

that “because he was forced to represent himself, the hearing was not governed by




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any published rules, and there was no opportunity for an appeal.”          

The

court also did not address Mr. Fistell’s request to amend his complaint.

                                   II. DISCUSSION

      We review for an abuse of discretion the district court’s dismissal of Mr.

Fistel’s complaint as legally frivolous under 28 U.S.C. § 1915(e)(2)(B).           Nagy v.

FMC Butner , 

, 255 n* (10th Cir. 2004). We review the district

court’s denial of Mr. Fistell’s Rule 59 motion to amend the judgment, including

his request to amend the complaint, under the same standard.         Computerized

Thermal Imaging, Inc. v. Bloomberg, L.P.      , 

, 1296 n. 3 (10th Cir.

2002); Calderon v. Kan. Dep’t of Soc. & Rehab. Servs.          , 

, 1187

(10th Cir. 1999).

       A complaint is frivolous if it “lacks an arguable basis either in law or in

fact.” Neitzke v. Williams , 

, 325 (1989). Because pro se plaintiffs

“may be less capable of formulating legally competent initial pleadings,”

“[a]ccording opportunities for responsive pleadings to indigent litigants

commensurate to the opportunities accorded similarly situated paying plaintiffs is

all the more important.”   

Thus, “[a]n   in forma pauperis complaint may

not be dismissed . . . simply because the court finds the plaintiff’s allegations

unlikely.” Denton v. Hernandez , 

, 33 (1992).




                                           -8-
                                   A. Due Process Claim

       As noted above, the district court found Mr. Fistell’s due process claim to

be frivolous because, after this court decided    Chambers , he was afforded a

hearing and “[h]e d[id] not allege that he was unable to challenge the factual basis

for his classification as a sex offender at that hearing.” Rec. doc. 7, at 3.

However, the district court issued its decision before we decided      Gwinn .

       In Gwinn , this court held that an inmate whose classification as a sex

offender implicates a liberty interest, is entitled to the following procedural

protections: “notice of the charges, an opportunity to present witnesses and

evidence in defense of those charges, and a written statement by the factfinder of

the evidence relied on and the reasons for the disciplinary action.”     Gwinn ,

354 F.3d at 1219. An inmate’s calling of witnesses and introduction of

documents, however, must not be “unduly hazardous to institutional safety or

correctional goals.”   Wolff , 418 U.S. at 566. Additionally, in order to comport

with due process, there must be some evidence to support the hearing panel’s

decision. Mitchell v. Maynard , 

, 1445 (10th Cir. 1996), and the

decisionmaker must be impartial.      See Wolff , 418 U.S. at 592 (Marshall, J.,

concurring in part and dissenting in part).

       In light of these procedural requirements, the mere fact that an inmate

classified as a sex offender in a manner that affects a liberty interest was afforded


                                            -9-
a hearing and that he had some opportunity to “challenge the factual basis for his

classification,” Rec. doc. 7, at 3, does not necessarily establish that the

classification comported with due process. In particular, if the inmate was denied

the opportunity to present relevant witnesses and documents, and if the

presentation of those witnesses and documents was not “unduly hazardous to

institutional safety or correctional goals,      Wolff , 418 U.S. at 566, or if the

hearing panel was not impartial, then the inmate may not have received due

process.

       Here, although Mr. Fistell’s initial complaint does not specify the grounds

for his contention that his classification as a sex offender violated due process,

his Rule 59 motion does allege that he was denied the opportunity to present

witnesses. That allegation is sufficient to establish that his due process claim has

“an arguable basis” in law and in fact,       see Neitzke , 490 U.S. at 325, and thus is

not frivolous. Although Mr. Fistell should have made that specific allegation in

his initial complaint,   see Fed. R. Civ. P. 8, we note that he was proceeding pro se

and in forma pauperis, and that, prior to the dismissal of his complaint he should

have been afforded an opportunity to file a responsive pleading commensurate to

the opportunity accorded a similarly situated paying plaintiff.        See Neitzke ,

490 U.S. at 330. Accordingly, in evaluating his due process claim, we may

properly consider the more specific allegations set forth in his motion to amend.


                                               -10-
       We therefore conclude that the district court abused its discretion in

dismissing Mr. Fistell’s due process claim as frivolous and in denying his request

for leave to amend his complaint.

                  B. Eighth Amendment and Equal Protection Claims

       In his appellate brief, Mr. Fistell does not challenge the district court’s

dismissal of his Eighth Amendment and Equal Protection claims. For

substantially the same reasons as the district court, we conclude that those claims

are frivolous.

                                  C. Heck v. Humphrey

       Finally, we note that Mr. Fistell has sought the restoration of earned-time

credits that he has lost because of his classification as a sex offender. It thus

appears that a ruling in his favor on his due process claim may “implicitly

question . . . the duration of [his] sentence.”     See Muhammad v. Close ,

, 1304 (2004) (per curiam) (discussing      Heck v. Humphrey ,

(1994) and Edwards v. Balisok , 

(1997)). If so, Mr.

Fistell must first pursue his due process claim in a habeas corpus proceeding.       See

Heck , 512 U.S. at 487; Brown v. Smith , 

, 1495 (10th Cir. 1987)

(holding that a 28 U.S.C. § 2241 habeas petition is the appropriate means by

which to seek restoration of good time credits rescinded at a disciplinary hearing).




                                             -11-
      Nevertheless, neither the district court nor the defendants have addressed

the applicability of Heck and its progeny. On remand, the parties and the district

court should address this issue.

                                   III. CONCLUSION

      Accordingly, we REVERSE the district court’s dismissal of Mr. Fistell’s

due process claim and REMAND that claim to the district court. On remand, the

district court should allow Mr. Fistell to file an amended complaint alleging

specific facts in support of his due process claim. The court may then conduct

further proceedings necessary to a just resolution of that claim. We AFFIRM the

dismissal of Mr. Fistell’s Eighth Amendment and Equal Protection claims.



                                                Entered for the Court,

                                                Robert H. Henry
                                                Circuit Judge




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