The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0191p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
ANTHONY MCCLENDON EL,
│
Plaintiff-Appellant, │
> No. 24-1849
│
v. │
│
HEIDI E. WASHINGTON, Warden, et al., │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor.
No. 5:23-cv-10739—Judith E. Levy, District Judge.
Decided and Filed: July 21, 2025
Before: KETHLEDGE, MURPHY, and MATHIS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Frank J. Lawrence, LAW OFFICE OF FRANK LAWRENCE, Bloomfield Hills,
Michigan, for Appellant. Joshua S. Smith, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellees.
_________________
OPINION
_________________
MURPHY, Circuit Judge. Michigan prison officials have recommended that Anthony
McClendon participate in a prison program designed for sex offenders to deter their sexual
abuse. McClendon refuses to participate. So Michigan’s parole board has repeatedly denied him
parole. In this case, we must consider whether the recommendation to complete the sex-offender
program or the resulting denials of parole deprived McClendon of “liberty” “without due process
of law” under the Fourteenth Amendment. We hold that McClendon’s due-process claim fails
No. 24-1849 McClendon El v. Washington, et al. Page 2
because he has not identified a cognizable “liberty” interest. He does not have a liberty interest
in avoiding the “sex offender” label alone. Nor does he have a liberty interest in obtaining parole
under Michigan’s discretionary system. And at least because he has committed a sex offense in
the past, he also does not have a liberty interest in avoiding the requirement to complete a sex-
offender program as a condition of parole. We thus affirm the district court’s dismissal of the
complaint.
I
Because this case reaches us at the pleading stage, we summarize the complaint’s well-
pleaded facts in the light most favorable to McClendon. See Thomas v. Montgomery, 140 F.4th
335, 337, 339 (6th Cir. 2025).
In 1986, McClendon pleaded guilty in a Michigan state court to (among other crimes)
criminal sexual conduct in the third degree. He completed his term of imprisonment for this sex
offense in 1999. In the meantime, though, he pleaded guilty in another Michigan state court to
second-degree murder. So McClendon has remained in prison from 1986 until the present day.
McClendon’s recommended prison programs have changed over time. Given his
criminal-sexual-conduct conviction, a prison health-care official first recommended that he
participate in a program that today goes by the name “Michigan Sexual Abuse Prevention
Program” and that we will call the sex-offender program for short. But McClendon did not
complete this program before serving his time for his sex offense. In 2003, a health-care official
changed the recommendation by suggesting that McClendon participate in an assault-prevention
program instead.
Two years later, McClendon pleaded guilty to assault with the intent to do great bodily
harm. This offense arose from his assault of a female corrections officer. McClendon also
claimed to be in a sexual relationship with this corrections officer at the time of the assault.
In 2017, a prison health-care official examined McClendon for his likelihood of
committing another sex offense. McClendon’s testing suggested that he posed a moderate to
No. 24-1849 McClendon El v. Washington, et al. Page 3
high risk of recidivism. The official thus reissued the recommendation that McClendon
complete the sex-offender program.
This program would allegedly require McClendon to move to a “specialized sex offender
unit” in the prison for an unknown time. Compl., R.1, PageID 10. McClendon twice tried to
complete the program but got kicked out each time. Since then, he has refused to participate in
it.
His refusal has had real consequences. The parole board has repeatedly denied him
parole because he has not completed the recommended sex-offender program. In fact,
McClendon claims that inmates may not freely reject the “recommendation” to participate in this
sex-offender program “if they want to ever be released on parole.” Id., PageID 29.
After his repeated parole denials, McClendon sued many prison officials under 42 U.S.C.
§ 1983. As relevant now, he alleged that these officials violated due process by failing to give
him a hearing before treating him as a sex offender and requiring him to participate in the sex-
offender program to obtain parole.
A magistrate judge recommended that the district court dismiss McClendon’s complaint.
See McClendon El v. Washington, 2024 WL 4483824, at *3–5 (E.D. Mich. Apr. 11, 2024). The
district court agreed and entered judgment for the prison officials. See McClendon El v.
Washington, 2024 WL 4299578, at *2–5 (E.D. Mich. Sept. 26, 2024). McClendon has appealed.
We review the district court’s decision de novo. See Thomas, 140 F.4th at 339.
II
A
The Fourteenth Amendment’s Due Process Clause says that States may not “deprive any
person of life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1.
This text requires plaintiffs to establish several things to make out a due-process violation. They
must identify a “life, liberty, or property” interest that falls within the clause’s reach. Id. They
must show that state actors have “deprive[d]” them of this interest. Id. And they must prove that
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these actors did not provide the “process” that was “due” for this deprivation. Id.; see Thomas,
140 F.4th at 340.
This case concerns a person’s “liberty” interest. The Supreme Court has interpreted the
word “liberty” in the Due Process Clause to cover two types of rights: rights inherent in the
nature of the word “liberty” and state-created rights. See Wilkinson v. Austin, 545 U.S. 209, 221
(2005). Some rights—such as the right to be free from the government’s physical restraint—
automatically trigger due-process protections (regardless of state law) because they fall within
the ordinary meaning of the word “liberty” in the Constitution itself. Id.; see Ingraham v.
Wright, 430 U.S. 651, 673–74 (1977); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572–
73 (1972). Other rights—such as a right to receive “good-time” credits in prison—do not fall
within this word’s ordinary meaning but can qualify as a liberty interest if state law creates and
guarantees them. See Wilkinson, 545 U.S. at 221 (citing Wolff v. McDonnell, 418 U.S. 539, 556–
58 (1974)).
The prison setting implicates both types of liberty interests. Most obviously, prisoners
have an interest (inherent in the word “liberty”) to be free from governmental “confinement.”
Vitek v. Jones, 445 U.S. 480, 493 (1980). But a criminal trial generally qualifies as the exclusive
“process” that is “due” to deprive prisoners of this interest. See id. A valid conviction thus
permits a State to “confine” a defendant in a prison and compel the defendant to follow its prison
“rules” without any need to provide more process. Meachum v. Fano, 427 U.S. 215, 224 (1976).
So do prisoners have any liberty interests left? Yes, a conviction “does not extinguish all
of [their] constitutionally protected liberty.” Inmates of Orient Corr. Inst. v. Ohio State Adult
Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991). But they must identify a “liberty” interest
distinct from the general interest to be free from confinement. The Supreme Court has said that
this “residuum of liberty” can arise both from the ordinary meaning of the word and from state-
created rights given to prisoners. Vitek, 445 U.S. at 491; see Sandin v. Conner, 515 U.S. 472,
484 (1995); Bridges v. Mich. Parole Bd., 2021 U.S. App. LEXIS 18715, at *5 (6th Cir. June 22,
2021) (order).
No. 24-1849 McClendon El v. Washington, et al. Page 5
Starting with rights inherent in the word liberty, prisoners still have a right to be free
from some physical restraints even after a conviction. See Sandin, 515 U.S. at 479 n.4. If prison
administrators impose “unexpected” restrictions on a prisoner’s freedom from bodily restraint
that nobody would have contemplated from the criminal “sentence” alone, the administrators
must provide additional process apart from the criminal trial itself. Id. at 484. So, for example, a
State must provide new procedural protections when it forces a prisoner alleged to be mentally ill
to transfer from a prison to a mental hospital. Vitek, 445 U.S. at 491–94. And a State must
provide these protections when it involuntarily medicates such a prisoner. See Washington v.
Harper, 494 U.S. 210, 221–22 (1990).
Turning to state-created rights, state prison laws or regulations may sometimes create a
liberty interest that triggers due-process scrutiny. See Wilkinson, 545 U.S. at 222. What must a
state regulation contain to create this interest? At one time, the Supreme Court answered this
question by “closely” analyzing the text of the state regulation at issue. Ky. Dep’t of Corrs. v.
Thompson, 490 U.S. 454, 461 (1989). If a regulation gave a prisoner a right to avoid some
prison hardship, it would create a liberty interest. See id. at 462–63. But if the regulation gave
administrators discretion over whether to impose that hardship, it would not create such an
interest. See id.
In Sandin, though, the Court changed course. Sandin departed from this prior approach
by narrowing the types of regulations that can give prisoners liberty interests. See Wilkinson,
545 U.S. at 222–23. To decide whether a prison regulation creates a liberty interest today, the
Court first considers the “nature” of the condition of confinement that the regulation addresses.
Id. at 223 (discussing Sandin, 515 U.S. at 484). If a prison regulation limits a prison
administrator’s ability to impose a hardship that is “atypical and significant” when compared to
“the ordinary incidents of prison life,” it will create a sufficient liberty interest. Sandin, 515 U.S.
at 484. But if the regulation limits an administrator’s ability to impose the type of hardship that
generally “falls within the expected perimeters” of prison life, it will not create a liberty interest.
Id. at 485.
The Supreme Court’s cases offer examples to distinguish regulations that concern
ordinary hardships from those that concern atypical ones. On the one hand, the Court has held
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that prisoners do not have a state-created liberty interest in avoiding 30 days of solitary
confinement because this temporary discipline does not effect “a dramatic departure from”
ordinary prison conditions. Sandin, 515 U.S. at 485–86. Likewise, prisoners generally do not
have a state-created liberty interest in avoiding a transfer from one prison to another, even if the
second prison has worse conditions. See Meachum, 427 U.S. at 225–29; see also Olim v.
Wakinekona, 461 U.S. 238, 248–51 (1983). And prisoners do not have a liberty interest in
seeing certain visitors. See Thompson, 490 U.S. at 463–64. (Technically, the Court decided the
latter two cases under the pre-Sandin regime, but Sandin noted that their results comported with
its approach. 515 U.S. at 483 n.5.)
On the other hand, the Court has held that prisoners had a state-created liberty interest in
avoiding a unique “Supermax” prison that greatly limited their liberty as compared to normal
prisons (including by rendering them ineligible for parole and subjecting them to unlimited
solitary confinement). See Wilkinson, 545 U.S. at 223–24. It has also held that prisoners can
have a state-created liberty interest in parole. See Sandin, 515 U.S. at 479 (discussing
Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 11 (1979)); see also Bd. of
Pardons v. Allen, 482 U.S. 369, 381 (1987). Because the Court decided the parole cases before
Sandin, though, it added that prisoners will have such a state-created interest only if state law
gives them a right to parole when certain circumstances are met—not if state law vests total
discretion in the parole board. See Allen, 482 U.S. at 373–81. And we have continued to apply
that mandatory-versus-discretionary approach to parole after Sandin. See, e.g., Thomas, 140
F.4th at 340–43.
B
Under these constitutional principles, McClendon has failed to identify a liberty interest
that the Due Process Clause protects. His complaint alleges that a prison health-care official
recommended that he participate in the sex-offender program and that the parole board has
repeatedly denied him parole because he has not completed this program. Do these allegations
establish the deprivation of any sort of liberty interest? We answer “no.”
No. 24-1849 McClendon El v. Washington, et al. Page 7
At the outset, we must characterize the nature of the sex-offender program. McClendon’s
complaint does not allege that Michigan administrators required him to participate in this
program (unlike a similar program in another State). Cf. Renchenski v. Williams, 622 F.3d 315,
322–23, 330 (3d Cir. 2010). Rather, the complaint alleges that they recommended he participate
and that he has “refused” to follow this recommendation. Compl., R.1, PageID 6, 10. Yet,
without more, McClendon does not have a liberty interest in avoiding a mere official
recommendation—what essentially looks like government speech. Unlike a command to go to a
mental hospital, a recommendation to participate in a prison sex-offender program falls “within
the range of conditions of confinement to which a prison sentence subjects an individual.” Vitek,
445 U.S. at 493. It also qualifies as one of “the ordinary incidents of prison life”—not an
“atypical” hardship. Sandin, 515 U.S. at 484; cf. McKune v. Lile, 536 U.S. 24, 37–41 (2002)
(plurality opinion).
To be sure, government speech classifying a person as a sex offender can harm the
person’s reputation because of the stigma associated with sex offenses. See Toney v. Owens, 779
F.3d 330, 340 (5th Cir. 2015); Grennier v. Frank, 453 F.3d 442, 445 (7th Cir. 2006). Even
outside a prison’s walls, though, private individuals do not have a liberty interest in avoiding an
official’s speech (even defamatory speech) unless the official accompanies the speech with a
legally coercive act—such as a ban on buying alcohol. See Paul v. Davis, 424 U.S. 693, 708–09
(1976); Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir. 1999). And the Supreme Court’s
cases do not give prisoners greater liberty interests than the interests that law-abiding citizens
possess. See Toney, 779 F.3d at 340; Grennier, 453 F.3d at 445; see also Vega v. Lantz, 596
F.3d 77, 81–82 (2d Cir. 2010). McClendon thus must identify something more to allege a
cognizable liberty interest.
What is McClendon’s “something more”? He suggests the Michigan has repeatedly
denied him parole because of his failure to participate in the sex-offender program. Yet he
makes no claim that Michigan law gives him any liberty interest in parole. For good reason.
Recall that a prisoner lacks a state-created liberty interest in parole if the relevant state law vests
discretion in its parole board. See Allen, 482 U.S. at 373–81; Thomas, 140 F.4th at 342–43. For
decades, we have interpreted Michigan law as giving its parole board the type of discretion that
No. 24-1849 McClendon El v. Washington, et al. Page 8
eliminates any liberty interest in parole. See Wershe v. Combs, 763 F.3d 500, 506 (6th Cir.
2014); Crump v. Lafler, 657 F.3d 393, 404 (6th Cir. 2011); Sweeton v. Brown, 27 F.3d 1162,
1164–65 (6th Cir. 1994) (en banc). McClendon identifies no change in Michigan law that might
change this analysis.
Michigan’s discretionary parole system might itself foreclose McClendon’s claimed
liberty interest in avoiding a condition on that parole that requires him to complete a sex-
offender program. The Seventh Circuit has reached that result in a case about Wisconsin’s
discretionary parole system. See Grennier, 453 F.3d at 444–46. But other courts have adopted
nuanced rules. They have held that a prisoner who has not been convicted of a sex offense has a
constitutionally rooted liberty interest in avoiding this type of condition on parole (or some other
prison benefit)—without asking whether the prisoner has a right to parole (or the other
underlying benefit). See Coleman v. Dretke, 395 F.3d 216, 222–23 (5th Cir. 2004); Kirby v.
Siegelman, 195 F.3d 1285, 1288, 1291–92 (11th Cir. 1999) (per curiam); Neal v. Shimoda, 131
F.3d 818, 828–31 (9th Cir. 1997); see also Chambers v. Colo. Dep’t of Corrs., 205 F.3d 1237,
1241–43 (10th Cir. 2000).
Yet we need not enter this circuit debate to reject McClendon’s claim. All circuit courts
agree that the Due Process Clause does not compel prison administrators to give prisoners more
process before classifying them as sex offenders if those prisoners have been convicted of a sex
offense. See Waldman v. Conway, 871 F.3d 1283, 1290–92 (11th Cir. 2017) (per curiam);
Jennings v. Owens, 602 F.3d 652, 659 (5th Cir. 2010); Neal, 131 F.3d at 831. Some of these
courts hold that the prisoners do not have a liberty interest in avoiding this classification. See
Waldman, 871 F.3d at 1290–92 & n.3; Jennings, 602 F.3d at 659. Others hold that the sex-
offense trial itself provides all the process that is due even if prisoners possess such a liberty
interest. See Neal, 131 F.3d at 831. Our own caselaw points the same way. In an unpublished
order, we held that States may require convicted sex offenders to participate in a sex-offender
program as a condition of parole without providing any more process. See Bridges, 2021 U.S.
App. LEXIS 18715, at *6–7.
This logic resolves this case. A state court convicted McClendon of a sex offense:
criminal sexual conduct in the third degree. McClendon “had a full and fair opportunity to
No. 24-1849 McClendon El v. Washington, et al. Page 9
contest” his sex-offender status when he pleaded guilty to that crime. Jennings, 602 F.3d at 659.
But he did not contest it. And whether we hold that this conviction extinguished McClendon’s
liberty interest in avoiding the sex-offender program (like the Fifth and Eleventh Circuits) or that
it satisfied this liberty interest (like the Ninth), the result is the same: his due-process claim
comes up short. We thus need not decide whether we also agree with the Seventh Circuit that
prisoners who have not been convicted of a sex offense lack a liberty interest in avoiding a sex-
offender program as a condition of parole under a discretionary parole regime.
McClendon’s contrary arguments lack merit. He first argues that he has an interest in
avoiding sex-offender treatment grounded in the plain meaning of the word “liberty.” Why? He
analogizes his case to Vitek, which held that prisoners have a due-process interest in avoiding
involuntary “commitment to a mental hospital” and compelled psychiatric treatment. 445 U.S. at
491–94. Yet the prisoner in Vitek had no choice in the matter: the prison would have used force
if he had refused. McClendon, by contrast, did not have to participate in the sex-offender
program: the prison did not use force when he refused. And although that refusal cost
McClendon his opportunity for parole, he had no state-created interest in parole under
Michigan’s discretionary system. See Wershe, 763 F.3d at 506. Besides, because McClendon
has pleaded guilty to a sex offense in the past, sex-offender treatment is not an “unexpected” part
of his sentence in the same way that an involuntary commitment would be. Sandin, 515 U.S. at
484.
McClendon next argues that Michigan law gives him a state-created liberty interest to
avoid the sex-offender treatment. But he misinterprets that law. Michigan does establish a
process for the “involuntary admission” of a “mentally ill” prisoner to the “corrections mental
health program” (which might provide, for example, forced medication as a treatment). Mich.
Comp. Laws § 330.2003a(a), (c). And this process gives a prisoner the right to a hearing if the
prisoner objects to the treatment. See id. § 330.2003c. But this statutory process does not apply
to McClendon’s recommended sex-offender program. For one thing, it applies only when prison
staff make an “involuntary admission” of a prisoner into the mental-health program. Id.
§ 330.2003a(a) (emphasis added). Staff did not require McClendon to participate in the sex-
offender program. For another thing, it applies only to prisoners that staff find mentally ill. Yet
No. 24-1849 McClendon El v. Washington, et al. Page 10
the prison health-care officials who examined McClendon found “no signs or symptoms of a
major mental health disorder[.]” Compl., R.1, PageID 16. And they recommended him for sex-
offender treatment because of his risk of “sexual offending recidivism,” not a mental illness. Id.
McClendon lastly criticizes the district court for failing to review the magistrate judge’s
legal analysis de novo. But we need not consider this issue. We have reviewed his claim de
novo and hold that it lacks merit. So the district court’s alleged failure to properly review the
claim cannot affect the outcome.
We affirm.