FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                October 16, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 M ARK DERR M ARIANI,

               Plaintiff - Appellant,                   No. 07-1068
          v.                                           (D. Colorado)
 JO SEPH STOM M EL, Administrator in       (D.C. No. 05-cv-01406-W DM -M EH )
 his official capacity, Colorado Sex
 Offender Treatment and M onitoring
 Program; JOSEPH ORTIZ, Director,
 in his official capacity, Colorado
 D epartm ent of C orrections; G ARY K.
 W ATKINS, W arden, in his official
 capacity, Fremont Correctional
 Facility; DONICE NEAL, W arden, in
 her official capacity, Arrowhead
 Correctional Facility; CH AR LES
 OLIN, personally and in his official
 capacity, Full Operating Level
 Treatm ent Provider; D WIG H T
 M ARTINEZ, Personally and in his
 official capacity, SO TM P Clinician,

               Defendants - Appellees.



                            OR D ER AND JUDGM ENT *




      *
       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. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before LUC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      M ark M ariani, a state inmate appearing pro se, appeals from the district

court’s dismissal of his civil-rights action against certain employees of the

Colorado Department of Corrections (CDOC). His complaint alleged deprivation

of various constitutional rights in connection with his internal prison

classification as a sex offender. The court dismissed M r. M ariani’s complaint and

denied his motion to amend. W e have jurisdiction under 28 U.S.C. § 1291 and

affirm.

I.    B ACKGR OU N D

      M r. M ariani is in the custody of the CDOC. W hile in prison in 1995 he

was convicted of, among other things, “rape, attempt, and complicity” under the

CDOC disciplinary code. M ariani v. Colo. Dep’t of Corrs., 

, 627

(Colo. C t. A pp. 1997). B ased on this disciplinary conviction, the CDOC

classified him as an S-3 sex offender in 2004. 1


      1
          The CDOC classifies offenders as follow s:
              1.  S5 - Individuals with past or current felony sexual
                  offense convictions.
              2.  S4 - Individuals whose history indicates sexual
                  assaults or deviance for which they may not have
                  been convicted. These cases often involve plea
                  bargains where the factual basis of the crime
                  involved a sex offense. This category also
                  includes misdemeanor convictions and juvenile
                                                                     (continued...)

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      On July 27, 2005, M r. M ariani filed in the United States District Court for

the District of Colorado a complaint against six employees of CDOC under

42 U.S.C. § 1983, alleging that (1) the defendants violated his due-process rights

by labeling him a sex offender based on his prison disciplinary conviction; (2)

CDOC Administrative Regulation (A R) 750-02, on its face, violates his right to

procedural due process because it does not permit him to appeal his sex-offender

classification; and (3) CDOC AR 750-02, on its face, violates his right to equal

protection because prisoners covered by the regulation are entitled to a hearing

following reclassification but others, such as S-3 sex offenders, are not.

      The district court granted the defendants’ motions to dismiss. The court

concluded that (1) M r. M ariani’s classification did not violate his right to

procedural due process, because the hearing before his disciplinary conviction

provided sufficient due process for his later S-3 classification; (2) M r. M ariani



      1
       (...continued)
                    convictions for sex offenses.
      3.     S3 - Individuals who, while incarcerated, have committed sex
             offenses against staff or offenders, or who have displayed
             behaviors which are suggestive of sexual abuse directed
             tow ards another.
      4.     S2 - Individuals who were arrested or investigated for sexual
             offenses but not charged or individuals w ho were initially
             coded S5, S4, or S3 but are not recommended for treatment
             after review by M ental Health.
      5.     S1 - Individuals with no history or indication of sex offense
             behavior.

R. Doc. 3, Attach. 1, at 32 (CDOC AR 700-19).

                                          -3-
did not have a right to appointment of counsel during his prison disciplinary

proceeding; (3) M r. M ariani’s complaint failed to allege a claim for denial of the

right to confront his accuser; (4) CDOC AR 750-02 did not violate M r. M ariani’s

due-process rights, because M r. M ariani had received all the process that was due

at his prior disciplinary hearing; and (5) CDOC AR 750-02 did not violate

M r. M ariani’s right to equal protection, because sex offenders are not a suspect

class and there are rational reasons for treating prisoners who have never been

found guilty of a sex offense differently from those who have. In addition, the

court denied M r. M ariani’s motion to add a due-process claim for bias of the

hearing officer who presided over the disciplinary hearing, determining that such

a claim would be barred by Heck v. Humphrey, 

(1994).

II.   D ISC USSIO N

      On appeal M r. M ariani reargues the claims raised before the district court

and challenges the court’s denial of his motion to amend the complaint. W e

review de novo the court’s dismissal under Federal Rule of Civil Procedure

12(b)(6). See Ash Creek M ining Co. v. Lujan, 

, 870 (10th Cir. 1992).

“D ismissal of a pro se complaint for failure to state a claim is proper only where

it is obvious that the plaintiff cannot prevail on the facts he has alleged and it

would be futile to give him an opportunity to amend.” Curley v. Perry, 

, 1281 (10th Cir. 2001) (internal quotation marks omitted). W e review for




                                          -4-
abuse of discretion the denial of a motion to amend a complaint. See Seymour v.

Thornton, 

, 984–85 (10th Cir. 1996).

      A.    Dismissal of Amended Complaint

            1.     The S-3 Classification

      M r. M ariani claims that he was denied due process when CDOC employees

classified him as an S-3 sex offender based on his prison disciplinary conviction.

This argument is without merit. In Chambers v. Colorado Department of

Corrections, 

, 1243 (10th Cir. 2000), we held that an inmate must

be afforded “some process” before he can be classified as a sex offender. W e did

not explain exactly how much process was required. But we agree with the

conclusion of Neal v. Shimoda, 

(9th Cir. 1997), a very similar case

concerning a claim by a prisoner classified as a sex offender, which was discussed

approvingly in Chambers. In 

–31, the court adopted the

due-process requirements of Wolff v. M cDonnell, 

(1974), which held

that a prisoner facing discipline must receive advance written notice, an

opportunity to call witnesses and present documentary evidence in his defense,

and a written statement by the fact-finder of the evidence relied on and the

reasons for the action taken. See Superintendent v. H ill, 

, 454

(1985).

      It is not necessary, however, that this process be provided at the

classification proceeding if the underlying offense has been established at a prior

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hearing at which the prisoner w as afforded due process. Shimoda said: “An

inmate who has been convicted of a sex crime in a prior adversarial setting,

whether as the result of a bench trial, jury trial, or plea agreement, has received

the minimum protections required by due process. Prison officials need do no

more than notify such an inmate that he has been classified as a sex offender

because of his prior conviction for a sex crime.” 

.

Although Shimoda referred only to prior court proceedings, we see no need to so

limit the general principle. So long as a prior prison disciplinary proceeding

provided as much process as the prisoner would be entitled to at a classification

hearing, the prisoner has been treated fairly. As conceded in M r. M ariani’s

response to the defendants’ motion to dismiss, he received at his disciplinary

hearing the process required by Wolff. The S-3 classification was an automatic

consequence of M r. M ariani’s disciplinary conviction. Therefore, there would be

no need for further fact-finding or a plea to official discretion in a classification

proceeding. The only process due M r. M ariani was notification that he had been

classified as a sex-offender based on his prior disciplinary conviction. This was

done.

        As to M r. M ariani’s claim that he was denied the right to counsel during his

prison disciplinary proceedings, prisoners do not “have a right to either retained

or appointed counsel in disciplinary hearings.” See 

. W e

therefore affirm the district court’s ruling.

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      W e also affirm the denial of M r. M ariani’s claim that he was denied the

right to confront his accuser. W e agree with the district court that M r. M ariani

failed to raise this issue in his complaint and did not allege sufficient facts to

support such a claim. See Baxter v. Palmigiano, 

, 321, 322 & n.5

(1976) (no general right to confront and cross-examine adverse witnesses in a

prison disciplinary proceeding).

             2.     Constitutional Challenges to CDO C AR 750-02

      CDOC AR 750-02 provides “unadjudicated offenders” with a right to a

hearing before they can be classified as sex offenders. R. Doc. 2, Attach. 1, at 17.

An “unadjudicated offender” is a prisoner “who has not been adjudicated of a sex

offense by a court or administrative board.” 

      M r. M ariani claims that CDOC AR 750-02 is facially unconstitutional for

two reasons. First, he argues that the regulation violates his right to procedural

due process because it does not permit him, as an adjudicated S-3 sex offender, to

appeal his sex-offender classification. Second, he contends that the regulation

violates his right to equal protection because some prisoners are entitled to a

hearing following reclassification but others are not. At the outset we note that

M r. M ariani can attack the regulation only insofar as it impairs his own

constitutional rights; that the regulation may offend the rights of others is not an

issue before us. See Broadrick v. Oklahoma, 

, 610 (1973)

(“Embedded in the traditional rules governing constitutional adjudication is the

                                           -7-
principle that a person to whom a statute may constitutionally be applied will not

be heard to challenge that statute on the ground that it may conceivably be

applied unconstitutionally to others, in other situations not before the Court.”)

      M r M ariani’s due-process claim is without merit. Just as there is no due-

process right to appeal a final judgment in a criminal case, see Halbert v.

M ichigan, 

, 610 (2005) (“The Federal Constitution imposes on the

States no obligation to provide appellate review of criminal convictions.”), an

inmate in state prison does not have a constitutional right to appeal his sex-

offender classification in a prison administrative proceeding. Accordingly,

M r. M ariani’s due-process claim must fail.

      W e also affirm the district court’s ruling regarding M r. M ariani’s equal-

protection claim. “Unless it provokes strict judicial scrutiny, a state practice that

distinguishes among classes of people will typically survive an equal protection

attack so long as the challenged classification is rationally related to a legitimate

governmental purpose.” Vasquez v. Cooper, 

, 251–52 (10th Cir.

1988). Strict scrutiny is appropriate only when the classification either involves a

suspect class or interferes with a fundamental right. See 

M r. M ariani

does not contend, nor can he, that the classifications at issue involve a suspect

class. Cf. Riddle v. M ondragon, 

, 1207 (10th Cir. 1996) (sex

offenders do not constitute a suspect class). And he has not asserted the violation

of a fundamental right. The classification M r. M ariani challenges is therefore

                                          -8-
subject only to rational-basis review. The burden is on him to establish that the

regulation is “irrational or arbitrary and that it cannot conceivably further a

legitimate governmental interest.” United States v. Phelps, 

, 1345

(10th Cir. 1994). He has failed to carry that burden. It is sensible, much less

rational, to provide procedural protections (including an appeal) only when fact-

finding is necessary to determine the prisoner’s classification. Adjudicated

offenders, such as M r. M ariani, have already been granted an evidentiary hearing

with suitable procedural protections to determine the dispositive facts.

      B.     M otion to Am end

      M r. M ariani appeals the district court’s denial of his motion for leave to

file an amended complaint adding a claim of bias of the hearing officer. The

court determined that the amendment would be futile because such a claim would

be barred by Heck, 

. Heck held that a state prisoner’s claim for

damages under § 1983 is not cognizable if “a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence” unless the

prisoner can demonstrate that the conviction or sentence has been previously

invalidated. 

In Edwards v. Balisok, 

, 648 (1997), the

Court followed Heck in a case indistinguishable from the one before us. The

defendant in Edwards was the hearing officer who had presided at a disciplinary

hearing that resulted in the loss of good-time credits by the prisoner plaintiff.

The prisoner, suing for damages and declaratory relief, alleged that the hearing

                                          -9-
officer had denied him due process by his bias and deceit. See 

The

Court held that the suit was barred because the allegations necessarily implied the

invalidity of the punishment imposed. See 

Because M r. M ariani’s

allegations of bias of the hearing officer necessarily imply the invalidity of his

prison disciplinary conviction, the district court did not abuse its discretion in

denying him leave to amend.

III.   C ON CLU SIO N

       W e AFFIRM the district court’s dismissal of M r. M ariani’s complaint and

denial of his motion to amend the complaint.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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