Dennis v. Clarke, No. 3:2015cv00603 - Document 37 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 08/17/2016. Copy mailed to Plaintiff. (walk, )
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Dennis v. Clarke Doc. 37 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division lL NJG I 7 2Dl6 JAMES GARDNER DENNIS, CLERK, U.S. DISTRICT COURT RICHMOND, VA Plaintiff, Civil Action No. 3:15CV603 v. HAROLD CLARKE, Defendant. MEMORANDUM OPINION James Gardner Dennis, counsel, submitted this a Virginia prisoner proceeding with 42 u. S. C. § 1983 complaint. Dennis demands relief upon the following grounds: Claim One Dennis's forced participation in the Sex Offender Residential Treatment program ("SORT") violates his rights under the Fifth Amendment. ( Compl. 21, ECF No. l.) Claim Two Dennis's forced participation in SORT violates his rights to due process because: (a) it allows "Dennis to be labeled a violent sex offender," (id. 14); (b) it "has the potential to cause severe changes to the time to be served on his sentence," {id.}; and, is enrolled in the (c} "once an inmate rehabilitation program, the inmate becomes subject to highly onerous conditions requiring (his] civil commitment after the inmate's sentence has been served" (id. 16}. The matter is before the Court on the MOTION FOR SUMMARY JUDGMENT (ECF No. 9) filed by Harold Clarke, the Director of the Virginia responded. Department For the of Corrections reasons set ( "VDOC" ) . for th below, Dennis has the Motion for Dockets.Justia.com Summary Judgment will be granted because Dennis's claims fail as a matter of law. 1 I. STANDARD FOR SUMMARY JUDGMENT STANDARD Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any material fact movant is entitled to judgment as a matter of law." Civ. P. 56(a). and the Fed. The party seeking summary judgment bears R. the responsibility to inform the court of the basis for the motion, and to identify the parts of the record which demonstrate the absence of a genuine issue of material fact. v. Catrett, 477 U.S. 317, 323 (1986). See Celotex Corp. "[W] here the nonmoving party will bear the burden of proof at trial on a disposi ti ve issue, reliance a summary solely judgment on the motion pleadings, may depositions, interrogatories, and admissions on file." 1 properly be made in answers to Id. at 324 (internal Clark also has filed a Supplemental Motion for Judgment wherein he expands on his argument that Dennis failed to exhaust his available administrative remedies as required by 42 u. s. c. § 1997e(a). Because Dennis's claims lack merit, and it appears that a material dispute of fact exists as to whether Dennis satisfied the requirements of 42 U.S. C. § 1997e (a} , the Court need not resolve that issue. Ross v. Blake, No. 15-339, 2016 WL 3128839, at *8 n.3 (U.S. June 6, 2016) ("Grievance procedures are unavailable . . . if the correctional facility's staff misled the inmate as to the existence or rules of the grievance process so as to cause the inmate to fail to exhaust such process." (quoting Davis v. Hernandez, 798 F.3d 290, 295 {5th Cir. 2015}}). Accordingly, in reciting the materials submitted in support of, and in opposition to summary judgment, the Court omits those materials devoted to the issue of exhaustion. 2 quotation marks When omitted) . the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits interrogatories, and or answers "'depositions, admissions on file, ' designate to 'specific facts showing that there is a genuine issue for trial. ' " {quoting former Fed. R. Civ. P. 56{c) and 56(e) In reviewing draw all 835 justifiable (4th 242, judgment inferences 1992) Cir. 477 U.S. Inc., summary United States v. party." 832, a 255 in 442, {citing Anderson (1986)). (citing Improvement Co. 448 judge, (1872)). the of court the However, v. Munson, v. "must nonmoving Carolina Transformer Co., 978 Liberty F.2d Lobby, a mere scintilla of evidence will not preclude summary judgment. at 251 (1986)). motion, favor Id. Anderson, 477 U.S. 81 U.S. (14 Wall.) "' (T] here is a preliminary question for the not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for imposed.'" the party Id. upon whom the onus of proof {quoting Munson, 81 U.S. at 448). is Additionally, "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party' s opposition to summary judgment." 153 7 953 (5th Cir. F.2d 909, 1994} 915 n.7 Forsyth v. Barr, 19 F.3d 1527, (quoting Skotak v. (5th Cir. 3 1992)); Tenneco Resins, see Fed. R. Inc. , Civ. P. 56(c)(3) ("The court need only consider the cited ." ) . materials In support of his Motion for Summary Judgment, as pertinent here, Clarke submitted an affidavit from Marissa M. Program Director for SORT. ("Coon Aff.," ECF 10-1) .) (Mem. affidavit. (Mem. Supp. Mot. Coon, Summ. J. Ex. the 1 In response, Dennis submitted his own Opp' n Mot. Summ. Ex. J. 1 ("Gardner Deel. , " Additionally, Dennis submitted a Psychological ECF No. 11-1).) Evaluation And Assessment have been prepared as a sentencing in 2008. Additionally, of Sexual Interest that appears defense exhibit for Dennis' s to criminal (Id. Ex. 2 ("Psychological Evaluation").) the Court will consider the evidence offered by the parties in support of and in opposition to the Motions for Injunctive filed a Motion Relief for filed by Dennis. Specifically, Emergency Temporary Restraining Order and Motion for Preliminary Motion for Emergency Injunction Temporary (ECF No. Restraining 23) and a Order Motion for Preliminary Injunction (ECF Nos. 28, 30.) motions were denied. (See MEMORANDUM ORDER ORDER In support of those motions, (ECF No. 36) . ) Inj. Ex. 1 ("Dennis Inj. Deel.," ECF 22-1)); Mot. TRO Prelim. l)); (Reply Ex. 1, Inj. Ex. 1 and Second Second Both these ( ECF No. 25 ) and Dennis has (Mem. Supp. Mot. TRO & Prelim. submitted his own declarations. & Dennis (Mem. Supp. Second ("Dennis TRO Deel. I" ECF No. 29- ("Dennis TRO Supp'l Deel.," ECF No. 34-1).) 4 In opposition to the Motions for Injunctive Relief, submitted, Manager inter alia, at an affidavit from Greensville Supp' 1 Resp. TRO Ex. 1, Correctional Clarke has s. Robertson, a Unit Center ("GCC"), (Def.'s ("Robertson Aff.," ECF 32-1)}, and the (Id. Ex. 2, affidavit of S.R. Taylor, a nurse at GCC. ("Taylor Af f . , " ECF No . 3 2 - 2 } . } Of course, the facts offered by any affidavit must be in See Fed. R. Civ. P. 56(c) (2). the form of admissible evidence. To meet that requirement, the statements in the affidavit or sworn declaration "must be made on personal knowledge . . . and show that the aff iant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. summary judgment affidavits must conclusions. 1996) Applications Furthermore, "set out facts," "summary judgment affidavits or based upon hearsay. " Id. 2 Evans v. Therefore, cannot be conclusory Techs. 56(c) (4). & Serv. Co., 80 (citing Rohrbough v. Wyeth Labs., 2 F. 3d 954, Inc., rather than 962 (4th Cir. 916 F.2d 970, 975 Dennis advances some specious objections to Coon's affidavit. For example, Dennis objects to Coon's description of SORT because it "actually cites almost no facts, but merely states largely irrelevant opinions and alleged aspirations of Coon as Director of the SORT Program. . . . Coon appears to be testifying as an expert as to the 'nature' of the programs, but has not been qualified as expert by this Court." (Mem. Opp' n Mot. Summ. J. 4.) Coon, as the Program Director of SORT, need not qualify as an expert prior to describing the purpose of SORT and how it functions. Lamoureaux v. Anazaohealth Corp., No. 3:03cv01382 (WIG}, 2009 WL 1162875, at *2 (D. Conn. Apr. 30, 2009). No need exists for the Court to assess the efficacy of SORT and take expert testimony on that score. 5 (4th Cir. 1990); Md. Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991)). Thus, the parties' conclusory sworn assertions will not be considered in reviewing the motion for summary judgment. 3 In light of the foregoing principles and submissions, the following facts are established for the purposes of the Motion for Summary Judgment. II. B. SUMMARY OF PERTINENT FACTS Summary Of Pertinent Facts 1. Dennis Dennie's Convictions And Referral To SORT "was convicted by the Albemarle Circuit Court for [twenty] counts of Possession of Child Pornography, one count of Sexual Battery, and one count of Computer Use to Commit Certain Sex Offense with a Minor." (Coon Af f . 1 O• ) Dennis asserts that he entered Alford4 pleas to each of these offenses, and he continues to believe that he did not commit any crime. (Dennis 3 For example, Dennis makes a number of hearsay statements regarding alleged inaccuracies in his "' STATIC-99, '" and with respect to his belief that participation in SORT results in classification as a sexually violent predator and civil commitment. (See, Dennis Deel. 7 ("The therapist at GCC, Mr. Fraiser, told me that the VDOC's concocted 'STATIC-99' score also falsely stated that I had not had a sexual relationship that lasted over 24 months, when in fact I was married to my second wife for over 13 years."; id. 11 ("I have been given to understand by VDOC Personnel that only sexually violent offenders are placed in the SORT program.") 4 North Carolina v. Alford, 400 U.S. 25 (1970). 6 TRO Deel. , 4.) The public records, however, reflect that Dennis actually pled guilty to the twenty counts of possession Dennis v. of child pornography. Jennings, No. 7:11-cv-00245, 2011 WL 6293279, at *3, *6 (W.D. Va. Dec. 13, 2011). For purposes of sentencing, Dennis's counsel in the criminal case referred Dennis for a Psychological Evaluation and (Psychological Evaluation l.) 5 Assessment of Sexual Interest. The Psychological Evaluation appears to have been submitted as a defense exhibit at (Id.) sentencing. The psychologist administered a "STATIC 99 . . . an instrument designed to assist in the prediction of sexual and violent recidivism for sexual (Id. offenders." at Dennis's score of l According 5.) to the on the STATIC 99 "suggest[s] that Mr. Dennis is at very low risk for sexual reef fending." November 12, 2008, to eleven ( 11) psychologist, (Id. at 6.) On the Albemarle Circuit Court sentenced Dennis years of incarceration. (Compl. , 6; Answer , 7.) On July 15, 2015, Dennis was transferred from Cof feewood Correctional Center to GCC for participation in SORT. Answer , 9; inmate." , lo . ) At (Robertson Aff. GCC, "Dennis 1 7.) as security levels 2 and 3." is a security {Compl. level 2 GCC "houses inmates classified (Id.) 5 The Court employs the pagination assigned by CM/ECF to the Psychological Evaluation. 7 SORT "is part of the VDOC Sex Offender Services Program, whose mission is to enhance public and institutional safety by providing evidence supervision based assessment, services to "The primary goal of manage their deviant sex treatment, (Coon offenders." these programs is (Id.) Aff. , and 4.) to help sex of fenders thoughts and/or behaviors sexual and non-sexual recidivism." re-entry, to reduce both Coon avers that: Offenders who participate in sex offender treatment, including SORT, have the opportunity to learn about problems they may have had in their relationships with other people. They learn how to make better choices by taking charge of their thinking. They also learn skills to help improve and manage stress. And they learn about the issues that led to their sexual offense . . . . (Id. , 5.) '' [M] ale sexual offenders with 18 to 36 months remaining until their scheduled prison release date who are deemed to be moderate to high risk of (Id. , 6.) SORT. sexual reoffending are referred to" For purposes of SORT, an individual is deemed to be a sexual offender if he was convicted of a sexual offense. Offenders are not provided with a hearing or notice prior {Id.) to being referred to SORT. If an individual is (Id. , 7.) accepted into SORT, he or she will "receive individualized assessment and treatment targeting their identified risk factors may include and treatment needs. psychoeducation, group 8 therapy, Their treatment and/or individual Additionally, therapy." planning prior to [an] offender [' s] SORT includes "discharge release [which] identifies areas for continued treatment based on [the offender's] progress in . . . SORT . . . and [his] identified risk factors." An offender has the right to refuse to participate in SORT. (Id. "But 9.} offenders who decline entry into the SORT program risk loss of good time and the ability to receive good time, they and may receive [Nevertheless, J an offender's refuses to participate in a sentence sex disciplinary charge. is not increased if he offender treatment programs." Participation in SORT "does not label or automatically deem an of fender a" Sexually Violent Predator ( "SVP"} . 7 (Id. ll.) "[B]eing referred to or participating in the SORT program is not 6 Dennis contends that he has not received an individualized assessment and has no treatment needs. (Dennis Deel. , 8.) However, when Dennis made the above statement he was not an active participant in SORT. (Dennis Inj. Deel. 3-4.) 7 The pertinent statute states: "Sexually violent predator" means any person who (i) has been convicted of a sexually violent offense, or has been charged with a sexually violent offense and is unrestorably incompetent to stand trial pursuant to § 19.2-169.3; and (ii) because of a mental abnormality or personality disorder, finds it difficult to control his predatory behavior, which makes him likely to engage in sexually violent acts. Va. Code Ann. § 37.2-900 (West 2016). 9 related to whether an offender is subject to civil commitment as an SVP." (Id. ) Dennis submits the following evidence in protesting his assignment to SORT: Prior to my sentencing for which I am now incarcerated, I was examined by Jeffrey C. Fracher, Ph.D. (" Fracher") , a clinical psychologist that is a Virginia Certified Sex Offender Treatment Provider. . . . Rather than rely upon this professional assessment, . . . the VDOC determined their own "STATIC-99" score for me. The VDOC "STATIC99" score was determined by an unknown VDOC employee that never met or interviewed me. (Dennis Deel. 2-5 (paragraph numbers omitted}.) Participation having committed treatment Deel. may 3.} in SORT at least reduce the requires one risk that sex of Dennis offense acknowledge and attest re-offending. that {Dennis TRO Dennis is offended by this requirement because he does not believe that he "actually commit[ted] any crime." {Id. 4.) Further, Dennis asserts that, to participate in SORT, must admit to every sexual offense he has committed. he The record shows that Dennis need only admit the sexual offenses of which he was convicted. participation in SORT Nonetheless, offends his Dennis Fifth contends Amendment that privilege against self-incrimination. On April 25, 2016, at 7: 35 p.m., Dennis was another inmate while in the SORT unit at GCC. 10 assaulted by (Id. 11.} On that date, inmate A. Woodson picked up a pot of boiling water and poured it on Dennis's back. (Dennis TRO Supp'l Deel. 3.) Dennis sustained first and second degree burns to a significant portion of his body. (Dennis TRO Deel. medical care for his injuries. 16.) (See Taylor Aff. blisters on Dennis' s back have now healed. Deel. Dennis received 4-5.) The (Dennis TRO Supp'l 7.) Based on the assault, Restrictive Housing investigation. Unit Dennis and Woodson were placed in a while (Robertson Af f. VDOC 6.) conducted staff an Dennis and Woodson were subsequently released from the Restrictive Housing Unit and are no longer housed in the same housing unit. III. A. ANALYSIS Fifth Amendment 8 In Claim One, Dennis asserts that his forced participation in SORT violates his right to be free from self-incrimination. Clarke asserts that Claim One fails as a matter of law. Fifth The Amendment "privilege incrimination and compulsion." 1179 (10th (2002) • Cir. 2000), rev'd has Lile v. on 8 McKune, other To survive summary judgment, two components: 224 F.3d 1175, grounds, 536 U.S. 24 Dennis must demonstrate "No person shall . . . shall be compelled in any criminal case to be a witness against himself . . . . " U. s. Const. amend. V. 11 "(l) two things: that the testimony desired by the government carried the risk of incrimination, and suffered amounted to compulsion. 11 395 F.3d 1128, explained 1134 below, information (9th Cir. Dennis sought by that the penalty he United States v. 2005) Antelope, (citations omitted). not has the (2) demonstrated government carried As the that any risk of incrimination. "The Fifth Amendment privilege is only properly invoked in the face 'a of incrimination.'" 1236 (9th Cir. real Id. and appreciable (quoting McCoy v. 1983)). Thus, danger Comm' r, of F. 2d 696 self1234, where "as a general rule, there can be no further incrimination, there is no basis for the assertion of the [Accordingly,] privilege . . . . [i] f no adverse consequences can be visited upon the convicted person by reason of further incrimination to be testimony, feared. 11 then there Mitchell v. is no further United States, 526 U.S. 314, 326 (1999). The only evidence in the record reflects that participants in SORT are required to acknowledge having committed at least one sex offense. 9 9 (Dennis TRO Deel. 3.) Dennis pled guilty to Dennis alleges, inter alia, that participants in SORT are requ1red to submit to being hooked up to a polygraph machine and are forced to answer a comprehensive set of questions that inquires into their entire sexual history and requires disclosure of that entire sexual history, 12 twenty {20) Dennis pled guilty to a score of sexual offenses, that he admit his responsibility offense does not expose Neal incrimination. 1997) Because counts of possession of child pornography. to having a requirement committed a sex Dennis to any real danger of criminal v. Shimada, 131 F.3d 818, 833 (9th Cir. (holding that a prison treatment program requiring inmates to admit guilt of the crime for which they were imprisoned did not violate the Fifth Amendment); U.S. 420, answers 435 n. 7 "as long incrimination"}. participation {1984) in Dennis SORT Murphy, 4 65 (explaining that the state may compel it . . . eliminates as As see Minnesota v. fails carries a to the threat of that his demonstrate real risk of criminal incrimination, Claim One must be dismissed. Additionally, Dennis' s Fifth Amendment claim is foreclosed by the Supreme Court's decision in Chavez v. Martinez, 760 (2003). The plaintiff coercively interrogated, interrogation. Court Id. 'a Chavez alleged that he was but was never prosecuted based on that at 763-64. concluded that in 538 U.S. "A four-member plurality of the violation of the constitutional right against self-incrimination occurs only if one has been compelled which could include confessing to crimes that Dennis not only was not convicted of, but also offenses that Dennis has not even previously been charged with. (Mem. Opp'n Summ. J. 2.} Dennis, however, fails to direct the Court to any admissible evidence that SORT actually employs such procedures. 13 to be a witness against himself in a criminal case.'" v. Virginia, 395 F.3d 508, 513 538 U.S. at joining the Amendment plurality, 1983 § compelled, Souter agreed that and the claim because . . . focuses defendant's core of Justices 770}. proceed on his (4th Cir. 2005} on (quoting Chavez, Breyer, though not plaintiff could not "the courtroom Burrell text use self-incriminating of of the a Fifth criminal testimony, and the the guarantee against compelled self-incrimination is the exclusion of such evidence." 538 U.S. at 777 (Souter, J.) Id. at 513 (quoting Chavez, (concurring in judgment}}. Dennis has not shown that any compelled testimony from his participation in SORT has been criminal proceeding. Therefore, (or will be) introduced in a for that additional reason, Fifth Amendment claim is legally insufficient. Snyder, claim 332 F.3d 1076, based available on for 1080 Chavez the and inmate (7th Cir. 2003} observing was to that seek his See Allison v. (rejecting similar the only suppression option of the statements at some future criminal proceeding) . For the foregoing reasons, Claim One will be dismissed. B. Due Process 10 In Claim Two, Dennis contends that his forced participation in SORT violates his rights to due process 10 because: "No State shall deprive any person liberty, or property, without due process of law . Const. amend. XIV, § 1. 14 (a) of ,, it life, U.S. (Compl. allows "Dennis to be labeled a violent sex offender," 14) ; (b) it "has the potential to cause severe changes to the time to be served on his sentence," inmate is enrolled in the (id.); and, (c) rehabilitation program, "once an the inmate becomes subject to highly onerous conditions requiring his civil commitment after the inmate's sentence has been served" At the outset, 16) . Two(a) and Two(c) (id. it is appropriate to dispose of Claims because Dennis has not demonstrated that his participation in SORT causes him to be labeled a violent sexual offender or results in his To the contrary, incarceration. civil commitment after his the record affirmatively shows that: Participation in the SORT program does not label or automatically deem an offender a SVP. The criteria used to classify an of fender as [an] SVP are separate from the criteria used to refer offenders to the SORT program. In other words, being referred to or participating in the SORT program is not related to whether an offender is subject to civil commitment as an SVP. (Coon Af f . 11. ) Dennis has offered no proof to refute the showing made by Clarke. Accordingly, Claims Two (a) and Two (c) will be dismissed. What remains then is Dermis's claim that, participate however, in has SORT his identified sentence no may evidence be if he refuses to extended. that his participation in SORT could cause him to serve more 15 Dennis, lack of than the eleven-year sentence that was imposed by the Circuit Court for the County of Albemarle. of participation in At best, Dennis suggests that his lack SORT could result in not earning or retaining the maximum amount of good time credit to reduce his term of imprisonment. The Due deprives Clause individual an interest. of applies a when legitimate government liberty or action property Bd. of Regents of State Cells. v. Roth, 408 U.S. 564, 569 (1972) . process Process Thus, the first step in analyzing a procedural due claim is to identify whether conduct affects a protected interest. F.3d 500, 502 established (4th Cir. that 1997) Virginia the alleged Beverati v. (citing cases). inmates do not of fending Smith, "[I] t enjoy a 120 is well protected liberty interest in the rate at which they earn either Earned Sentence Credits or Good Conduct Allowances." Sydnor v. 3:10CV780-HEH, No. 2012) at 2012 WL 604039, at *4 (E.D. Va. Mahon, Feb. 23, (citing Sazynski v. Clarke, No. 2:10CV156, 2011 WL 586973, *3 (E.D. Va. 8, 2011); 3:08CV687, 2009 WL 3175629, at* 5 Martin v. Johnson, (W.D. Va. Apr. 8, 315, 330 (E.D. Va. 8 oo, 8 o5 (E . D • Feb. No. Puranda v. (E.D. Va. 7: 08-cv-00249, 2008 Sept. WL 2008); DeBlasio v. Johnson, 2000); Va . 2 oo6) ) . Gaskins v. Johnson, Johnson, 30, 957869, 128 F. 443 F. No. 2009); at *4 Supp. 2d Supp.2d Accordingly, Dennis cannot mount a procedural due process claim based on any decision of the VDOC 16 to reduce the rate at which he earns good conduct time if he refuses to participate in SORT. To the extent that Dennis fears that prison officials might revoked vested good time credits, his claim does protected liberty interest. Sciolino v. Va., (4th Cir. 480 F.3d 642, McDonnell, 418 653 U.S. n.9 539, 560-61 implicate a City of Newport News, 2007) (1974)). (citing Wolff v. Nevertheless, the Constitution guarantees only the following minimal process prior to revoking vested good time credits: (1) an impartial tribunal; (2) written notice of charges prior to the hearing; (3) an opportunity call witnesses and present documentary evidence; aid from a fellow inmate or staff representative if issues are complex; and, (5) a written statement by fact finder describing the evidence relied upon and reasons for taking disciplinary action. [ 11 ) Coor v. Stansberry, No. Va. Dec. 31, (citing Wolff, has not 2008) shown that he procedural protections good time credits. deprived of 3:08CV61, will with Thus, procedural 2008 WL 8289490, at *2 418 U.S. at 563-71.) be deprived of respect to the the to (4) the the the any of (E.D. Dennis the above revocation of any Dennis's contention that he might be due process ll in connection with the The Supreme Court has further stated "that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits." Superintendent, Mass. Corr. Inst. , Walpole v. Hill, 472 U.S. 445, 455 (1985). 17 forfeiture of vested good time credits lacks merit and must be dismissed. 12 Although not squarely presented, Dennis appears to contend that he is being denied due process simply because he is Dennis required to participate in a program for sex offenders. contends that the VDOC methodology for selecting him for SORT is flawed and fails to demands. however, sexual Dennis, offenses. He afford him has protected liberty interest the process was convicted yet to the of Constitution multiple demonstrate that serious he has a in avoiding participating in SORT. Thus, the Constitution does not guarantee any particular process prior to requiring his participation in SORT. 13 IV. The granted. FOR MOTION FOR SUMMARY JUDGMENT The claims will be dismissed. PARTIAL SUMMARY JUDGMENT moot. CONCLUSION (ECF No. (ECF No. 9) will be The SUPPLEMENTAL MOTION 19) will be denied as The action will be dismissed. 12 In any event, the contention upon which Claim Two rests is premature because nothing has happened. 13 ( c) The criminal process that led to Dennis's convictions for over a score of sexual offenses extinguished any liberty interest Dennis enjoyed in avoiding being labeled a sexual offender. See Renchenski v. Williams, 622 F. 3d 315, 328 (3d Cir. 2010) (citations omitted) (internal quotation marks omitted) (observing that "prisoners who have not been convicted of a sex offense have a liberty interest created by the Due Process Clause in freedom from sex of fender classification and conditions"). 18 The Clerk is directed to send a copy of the Memorandum Opinion to counsel of record. /s/ Robert E. Payne Senior United States District Judge 19
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