Renchenski v. Williams

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-3530

_____________

CHARLES S. RENCHENSKI,

Appellant

v.

THOMAS WILLIAMS, JOSEPH PIAZZA, PA

DEPARTMENT OF CORRECTIONS, LARRY KASKIE,

Unit Manager of E-Unit at SCI Coal Township, FRANK D.

GILLIS, former Superintendent at SCI Coal Township,

KANDIS K. DASCANI, Grievance Officer at SCI Coal

Township, JOHN SIDLER, Licensed Psychologist Manager

at SCI Coal Township, SHARON M. BURKS, Chief

Grievance Officer in the Department of Corrections main

office Camp Hill, Pa

___________

On Appeal from the District Court

for the Middle District of Pennsylvania

(No. 06-cv-278)

District Judge: Honorable Richard P. Conaboy

___________

1

Argued July 12, 2010

Before: FUENTES, ALDISERT, and ROTH, Circuit Judges

(Opinion Filed: October 4, 2010)

Jeffrey M Theodore (ARGUED)

David H. Coburn

Steptoe & Johnson LLP

1330 Connecticut Avenue, NW

Washington, DC 20036

Attorneys for Appellant

Howard G. Hopkirk (ARGUED)

Office of the Attorney General

Appellate Litigation Section

15 th Floor, Strawberry Sq.

Harrisburg, PA 17102

Attorney for Appellees

OPINION OF THE COURT

FUENTES, Circuit Judge:

Plaintiff Charles Renchenski is serving a life sentence

without the possibility for parole for murder in the first degree.

Although he was never charged with, nor convicted of, a sexual

offense, in 2005 Defendants classified Renchenski as a sex

2

offender and recommended his enrollment in Pennsylvania’s

Sex Offender Treatment Program (“SOTP”). Renchenski filed

this 42 U.S.C. § 1983 action alleging that his forced

participation in sex offender treatment therapy violates several

constitutional rights, including his: Fourteenth Amendment right

to due process before being labeled a sex offender; Fifth

Amendment right against self-incrimination; and Sixth

Amendment right to have a jury adjudicate his guilt. He also

challenges the District Court’s conversion of Defendants’

motion to dismiss into a summary judgment motion without

granting him leave to take discovery. Because we hold that an

inmate who has never been charged with, nor convicted of, a sex

offense is entitled to due process before Pennsylvania classifies

him as a sex offender, we reverse the District Court’s Order

entering summary judgment as to his procedural due process

claim. We affirm the District Court in all other respects.

I.1

Renchenski is incarcerated at the State Correctional

Institution at Coal Township, Pennsylvania (“SCI-CT”), serving

a life sentence without the possibility of parole for his 1985

conviction of the murder-by-strangulation of Rose Marie Foley.

Renchenski’s Pre-Sentence Report (“PSR”) indicated that Ms.

Foley was found in an isolated rural area, and that “the body . .

. was clad only in a bra (which was unsnapped and pulled over

1

Unless otherwise noted, the following facts are not in

dispute and are derived from the District Court’s opinion as well

as the Joint Appendix (“App.”).

3

the breasts), a blouse which was also above the breasts, and

socks.” (App. at 317.) An autopsy revealed multiple blunt force

trauma to the face and trunk, and abrasions and contusions on

Foley’s genitals. Additionally, her right breast was mutilated.

Under interrogation, Renchenski admitted that he had cut away

the skin around the victim’s nipple in an attempt to prevent law

enforcement from identifying his bite-marks. Finally, the

autopsy noted hemorrhages in the area of her clitoris and vulva.

While Renchenski was never charged with, or convicted

of, sexually assaulting Foley, his PSR did indicate “sexual” as

a “past or present problem area.” (App. at 321.) Nevertheless,

his original correctional plan did not designate sexual as an area

of concern.2 From 1990 through 1999, however, Renchenski’s

prescriptive correctional program plan was altered to indicate

that sexual was an area of concern. When Pennsylvania adopted

its state-wide sex offender treatment program in 1999, prison

officials granted Renchenski’s request that this determination be

removed from his correctional plan.3 This status quo remained

2

At the time Renchenski was committed to the DOC’s

custody, Pennsylvania had not adopted a standardized SOTP.

3

Title 42 of the Pennsylvania Code, effective January

21, 2003, sets forth a judge’s sentencing authority vis-à-vis

sexual offenders. It provides, in relevant part, that:

A person, including an offender designated as a

“sexually violent predator” . . . shall attend and

participate in a Department of Corrections

4

in place until 2003, when Renchenski was transferred to

SCI-CT.

Renchenski contends that after being transferred to SCI-

CT, he complained to Defendant Williams, a prison counselor,

about his loss of single-cell status. When his complaints went

unanswered, Renchenski called Williams “slothful.”

Renchenski alleges that, in retaliation for this insult, Williams

classified him as a sex offender and enrolled him in a slew of

prison programs, including sex offender orientation, sex

offender core, and sex offender maintenance.

Pennsylvania’s SOTP is entitled “Responsible Living: A

Sex Offender Treatment Program” and consists of a seven-phase

behavioral modification course. Section 11(B) of the DOC’s

Policy Statement on Access to Mental Health Care (“Policy

13.8.1”) governs “risk/need assessment” and outlines how the

DOC evaluates sex offenders. It does not delineate how the

DOC determines whether or not an inmate is a sex offender. Id.

program of counseling or therapy designed for

incarcerated sex offenders if the person is

incarcerated in a State institution for any of the

following provisions under [Title 18].

42 Pa. Cons. Stat. § 9718.1(a). In other words, this statute

mandates behavioral modification for sex offenders. Subsection

(c) of this statute delegates to the DOC the authority to “develop

and provide the program of counseling or therapy for

offenders.”

5

After the initial assessment, the treatment provider recommends

a final risk level based on, among other things, the risk of

recidivism, the attitude the inmate displays regarding sexual

crimes, and any indication that the offender has a primary sexual

attraction to children. Id. For prisoners assessed as moderate-

to-high-risk offenders, the seven-step SOTP consists of one

weekly two-hour group therapy session comprised of no more

that fifteen participants that continues for approximately two

years. See Policy 13.8.1 § 11(C)(2)(f). Throughout an inmate’s

involvement in the program, he or she can accumulate points for

attendance, participation, and for completing homework

assignments and major projects. An inmate “must accrue 85%

of the total possible points in order to ‘graduate’ from the

program.” Id. While an inmate who denies a past history of

sexual violence may initially participate in treatment, if he or she

persists in maintaining his or her innocence, the inmate will be

dismissed from the program.

The SOTP is run by qualified professionals. In order to

serve as a credentialed treatment provider, a staff member must

have a graduate degree in behavioral health or social sciences

and at least two years of experience with sex offender treatment.

Alternatively, a staff member may be credentialed if he or she

has an undergraduate degree in behavioral health and at least

2,000 hours of clinical sex offender treatment. The SOTP is

supervised by a Licensed Psychologist Manager.

Renchenski contested his sex offender designation, and

his complaint was referred to John Sidler, SCI-CT’s Chief

Psychologist. Sidler dismissed his complaint, because “based on

the official version of the offense, there [was] a high level of

6

sexual content involved. [Therefore, t]he Psychology

Department supports . . . [the] decision to add sexual offender

status.” (App. at 84.) Sidler noted that a correctional plan,

which is developed for each inmate, is designed to address an

inmate’s individual needs to prevent recidivism and to ensure a

smooth transition back into society. Sidler indicated that he

approved of Renchenski’s designation as a sex offender because

“[t]he official version of the crime indicate[d] that there was a

sexual component to the crime, as Renchenski was engaged in

a sexual act with the victim when the homicide occurred.” (Id.

at 286.) Sidler also stated that the “decision to recommend

Renchenski for sex offender programs was based upon the

[t]reatment team’s evaluation of him coupled with the sexual

component of Renchenski’s offense.” (Id. at 287.)

While Defendants claim that Renchenski’s name

currently appears on the institutional sex offender roster as a

“possible sex offender,” they maintain that he has not been

classified as a sex offender because he has refused to submit to

an assessment. (Id. at 289.) This assertion contradicts DOC’s

own policy, which provides that “[e]very inmate who refuses

assessment and/or treatment shall be identified as falling in the

Moderate/High risk category [of sex offender].” Policy 13.8.1

§ 11(B)(4)(g). Moreover, Defendants’ argument that Williams

merely recommended to the Psychology Department that

Renchenski be assessed to determine whether or not he needed

sex offender treatment is unsupported by the record, which

reveals that Williams recommended Renchenski participate in

three specific sex offender programs: orientation, core and

maintenance. Id. at 15; (App. at 265, 475.) Defendants also

admit that, under the current SOTP, at the time the DOC

7

commences a new treatment group, Renchenski would be

assessed for risk level and not for whether or not he needs

treatment. See Appellee’s Br. at 15.4

Defendants also contend that while “the recommended

programming may be a requirement of an inmate’s correctional

plan, an inmate’s participation in the specific program is

voluntary.” Id. at 10. This claim is also belied by the record.

For example, Policy 13.8.1 § 119(C)(1)(h) and (i) mandates that

sex offenders participate in treatment by using the phrase “shall

receive all seven phases” of therapy. Furthermore, in response

to Renchenski’s grievance, Larry Kaskie, the Unit Manager,

noted that if the Psychology Department determines he needs

counseling, he will be required to submit to the program. (App.

at 475.) In a subsequent correspondence, John Castrignano, a

Psychological Services Specialist, informed Renchenski that

“Participation in Sex Offender Programming is required as part

of your Correctional Plan[.]” (Id. at 458.) (emphasis in original);

see also (Id. at 454 [August 19, 2003 Letter from Superintendent

Gillis to Renchenski indicating that it was in his “best interest to

comply” with treatment.]). And while Renchenski concedes that

his refusal to participate has no effect on his parole status, he

notes that his protests nonetheless subject him to substantial

4

In 2005 Renchenski was informed that SCI-CT was

starting a new sex offender group which permitted enrollment

of inmates who, like him, had in the past denied committing sex

offenses. Even though attendance at the SOTP is a requirement

of Renchenski’s correctional plan, he refused to participate and

therefore was never “assessed.”

8

penalties, including the loss of his prison job, assignment to

disciplinary custody for ninety days, cell restriction for thirty

days, suspension of the right to receive visitors, and loss of

privileges such as access to television, radio and the

commissary. Appellant’s Reply Br. at 2; see DC-ADM, 801,

Inmate Discipline Procedures Manual § 4.

1. Procedural History

Renchenski filed the instant action, pro se, alleging

several constitutional violations. 5 Defendants filed a motion to

dismiss Renchenski’s amended complaint for failure to state a

claim, which Renchenski opposed. The magistrate judge issued

a Report and Recommendation, urging that dismissal was

appropriate. Following the receipt of Renchenski’s objections

to the Report and Recommendation, and Defendants’ opposing

brief, the District Court ordered Defendants to file a

supplemental brief addressing: (1) whether Renchenski was

currently under consideration for participation in the SOTP; (2)

the process for making such a determination; and (3) what, if

any, ramifications Renchenski faced for refusing to participate

in therapy. (App. at 5-6.)

5

Individually named Defendants include Thomas

Williams, a prison counselor; Joseph Piazza, Prison

Superintendent; Larry Kaskie, Unit Manager; Frank Gillis,

former Superintendent; Kandis Dascani, Grievance Officer;

John Sidler, Psychologist; and Sharon Burks, Chief Grievance

Officer.

9

After reviewing Defendants’ Supplemental Brief, the

District Court issued an Order notifying the parties of its intent

to convert the motion to dismiss into a motion for summary

judgment. While the District Court’s Order was electronically

docketed, it is unclear if a hard copy was sent to Renchenski via

the United States Postal Service or whether he actually received

this notice. What is clear is that Renchenski did not file a Rule

56(f) affidavit seeking to delay disposition of the summary

judgment motion while he gathered evidence in support of his

opposition motion. Instead, he sought leave to file a third

amended complaint. In its Order and accompanying opinion, the

District Court denied Renchenski’s motion to file a third

amended complaint and granted summary judgment in

Defendants’ favor on all counts.

2. The District Court’s Ruling

The District Court first rejected Renchenski’s claim that

because the SOTP required him to admit to past sexual crimes,

including the sexual component of the 1982 murder,

participation violated his Fifth Amendment right against

self-incrimination. The District Court properly considered this

claim in light of the Supreme Court’s holding in McKune v. Lile,

536 U.S. 24 (2002), which stressed that “compulsion” was the

key inquiry in any Fifth Amendment claim.6 The District Court

6

“[T]he central question becomes whether the State’s

program, and the consequences for nonparticipation in it,

combine to create a compulsion that encumbers the

constitutional right. If there is compulsion, the State cannot

10

reasoned that: (1) Pennsylvania’s SOTP bore a rational

relationship to the legitimate penological objective of assessing

and rehabilitating inmates whose records indicate a potential

problem of a sexual nature; (2) the only consequence flowing

from non-participation in the program—being labeled a

“possible sex offender” on an internal prison roster— does not

rise to the level of compulsion; and (3) being labeled a possible

sex offender does not constitute an atypical and significant

hardship in relation to the ordinary incidents of prison life.

Next, the District Court granted summary judgment in

Defendants’ favor on Renchenski’s Fourteenth Amendment

procedural due process claim. First, the District Court noted

that Renchenski presented no evidence that he was forced to

undergo involuntary treatment. Alternatively, the District Court

held that Renchenski had neither an independent liberty interest,

nor a state-created liberty interest, which triggered the need for

due process protections. Because Renchenski is serving a life

sentence without the possibility of parole, the District Court

reasoned that refusing to participate in the SOTP would have no

tangible effect on his liberty. It also rejected his argument that

the stigma attached to merely labeling a prisoner a sex offender

gave rise to a liberty interest.

The District Court next disposed of Renchenski’s Equal

Protection Clause, Sixth Amendment, and Eighth Amendment

claims. First, the District Court ruled that Renchenski’s equal

protection claim failed because his allegations were vague and

continue the program in its present form . . . .” 536 U.S. at 35.

11

conclusory. Similarly, the District Court held that Renchenski

could not sustain his Sixth Amendment claim because the

provisions of Pennsylvania’s code he cited to— 42 Pa. Cons.

Stat. § 9791 et seq.— related to the sex offender registration

laws and not to the issues raised in his complaint. Next, the

District Court rejected Renchenski’s Eighth Amendment claim,

holding that while a cruel and unusual punishment claim may be

predicated on emotional injury, Renchenski failed to establish

that Defendants were aware that a substantial risk of serious

harm existed and deliberately disregarded that risk.

Accordingly, the District Court granted summary judgment in

Defendants’ favor on all counts and denied Renchenski’s motion

for leave to file a third amended complaint.7 Renchenski filed

a pro se appeal, and we appointed pro bono counsel.

II.

The District Court exercised jurisdiction over

Renchenski’s claims under 28 U.S.C. § 1331. We have

appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review

7

Having disposed of the claims addressed in the Report

and Recommendation, the District Court then stated its reasons

for denying Renchenski’s motion to file a third amended

complaint. The Court concluded that amendment would be

futile since the Ex Post Facto Clause claim Renchenski sought

to add was meritless because participation in SOTP would not

disadvantage him, and because participation in the program

would not affect the legal consequences of his crime of

conviction.

12

a district court’s disposition of a summary judgment motion de

novo. See Fed. Home Loan Mortg. Corp. v. Scottsdale Ins. Co.,

316 F.3d 431, 443 (3d Cir. 2003). “We apply the same standard

as the District Court: Summary judgment is appropriate only

where, drawing all reasonable inferences in favor of the

nonmoving party, there is no genuine issue as to any material

fact and . . . the moving party is entitled to judgment as a matter

of law.” Melrose Inc. v. City of Pittsburgh, --- F.3d ----, 2010

WL 2814284, at *5 (3d Cir. 2010) (citation & internal quotation

marks omitted). “The mere existence of some evidence in

support of the nonmovant is insufficient to deny a motion for

summary judgment; enough evidence must exist to enable a jury

to reasonably find for the nonmovant on the issue.” Giles v.

Kearney, 571 F.3d 318, 322 (3d Cir. 2009) (citation omitted).

We review a district court decision refusing leave to amend a

complaint pursuant to Federal Rule of Civil Procedure 15(a) for

abuse of discretion. See Bjorgung v. Whitetail Resort, LP, 550

F.3d 263, 266 (3d Cir. 2008).

III.

Renchenski raises several substantive challenges and one

procedural challenge to the District Court’s grant of summary

judgment in Defendants’ favor. We consider each in turn.

1. Constitutional Challenges

a. Due Process Clause Claim

The Due Process Clause of the Fourteenth Amendment

provides that no State shall “deprive any person of life, liberty,

13

or property, without due process of law.” U.S. Const. amend.

XIV, § 1. A court reviewing a procedural due process claim

first determines whether the plaintiff asserts an interest protected

by the Fourteenth Amendment. See Alvin v. Suzuki, 227 F.3d

107, 116 (3d Cir. 2000). If the court concludes that such an

interest exists, the next issue is whether the procedures provided

to the plaintiff afforded that individual due process of law. Id.

i. Identifiable Liberty Interest

While an inmate’s constitutional rights are diminished in

prison, “a prisoner is not wholly stripped of constitutional

protections when he is imprisoned for crime.” Wolff v.

McDonnell, 418 U.S. 539, 555 (1974). Nonetheless, a convicted

criminal’s liberty interest is subject to “the nature of the regime

to which [(s)he has] been lawfully committed.” Id. at 556.

“Among the historic liberties protected by the Due Process

Clause is the right to be free from, and to obtain judicial relief

for, unjustified intrusions on personal security.” Vitek v. Jones,

445 U.S. 480, 492 (1980) (internal quotations & citation

omitted). Nevertheless, “changes in the conditions of

confinement having a substantial adverse impact on [a] prisoner

are not alone sufficient to invoke the protections of the Due

Process Clause as long as the conditions or degree of

confinement to which the prisoner is subjected is within the

sentence imposed upon him.” Id. at 493 (internal quotations &

alteration omitted).

A prisoner may be deprived of a liberty interest in

violation of the Constitution in two ways: (1) when severe

changes in conditions of confinement amount to a grievous loss

14

that should not be imposed without the opportunity for notice

and an adequate hearing, id. at 488; and (2) when state statutes

and regulations create a liberty interest in freedom from restraint

that imposes an “atypical and significant hardship on the inmate

in relation to the ordinary incidents of prison life[,]” thereby

triggering due process protection, Sandin v. Conner, 515 U.S.

472, 484 (1995); see also Meachum v. Fano, 427 U.S. 215, 223-

27 (1976). The first is the so-called independent due process

liberty interest, while the latter is the so-called state-created

liberty interest.

Renchenski argues that the stigmatizing consequences of

being labeled a sex offender, when coupled with mandated

behavioral modification therapy, constitutes the kind of

deprivation of liberty that requires procedural protections.

Renchenski contends that although his conviction extinguished

his right to be free from confinement, it did not authorize

Pennsylvania to classify him as a sex offender without affording

him additional process.

In evaluating Renchenski’s argument, we are guided by

the Supreme Court’s decision in Vitek, in which the Court held

that the “involuntary transfer of a . . . state prisoner [convicted

of robbery] to a mental hospital implicate[d] a liberty interest

that is protected by the Due Process Clause.” 445 U.S. at 487.

While the Court based this holding, in part, on a state-created

liberty interest, it also held that the prisoner’s liberty interest

existed separate and apart from the state regulation.

Specifically, the Court noted that the stigmatizing

characterization of the prisoner as mentally ill, when coupled

with the transfer to an asylum to participate in mandatory

15

behavioral therapy, “constituted a major change in the

conditions of confinement amounting to a grievous loss that

should not be imposed without the opportunity for notice and an

adequate hearing.” Id. at 488 (quotation marks omitted);

compare Washington v. Harper, 494 U.S. 210 (1990) (holding

that a prisoner had an independent liberty interest in being free

from the arbitrary administration of psychotropic drugs), with

Meachum, 427 U.S. at 224 (holding that the Due Process Clause

does not independently create a liberty interest in prisoners to be

free from intrastate prison transfers). The Court reasoned that

despite the prisoner’s conviction for robbery, he still “retained

a residuum of liberty that would be infringed . . . without

complying with minimum requirements of due process.” Vitek,

445 U.S. at 491. In turn, the Court concluded that transfer to a

mental institution was “‘qualitatively different’ from the

punishment characteristically suffered by a person convicted of

crime, and had ‘stigmatizing consequences.” Sandin, 515 U.S.

at 479 n.4 (citing Vitek, 445 U.S. at 493-94) (quotation marks

omitted). Thus, when determining an inmate’s due process right

“to be free from . . . unjustified intrusions on personal

security[,]” Vitek instructs courts to consider “[c]ompelled

treatment in the form of mandatory behavior modification

programs[.]” 445 U.S. at 492.

Relying on Vitek, Renchenski argues that the District

Court erred in not recognizing that the Due Process Clause

independently conferred upon him a liberty interest in not being

classified as a sex offender—which he argues is even more

stigmatizing than being labeled as mentally ill—and forced into

16

sex offender treatment without due process.8 We agree that only

after a prisoner has been afforded due process may sex offender

conditions be imposed on an inmate who has not been convicted

of a sexual offense.

It is largely without question—and Defendants do not

claim otherwise—that the sex offender label severely

stigmatizes an individual, and that a prisoner labeled as a sex

offender faces unique challenges in the prison environment.

Renchenski cites to numerous sociological and criminal justice

studies which conclude that sex offenders are considered “an

anathema in the inmate subculture . . . [and] inmate norms call

for their savage beating.” Appellant’s Br. at 9 (citing James E.

Robertson, Sex Offenders and the Criminal Justice System

83-87 (1994)). Sexual offender inmates are also ready targets

for sexual violence in prison. Indeed, studies suggest that sexual

offenders’ rate of sexual abuse in prison ranges from 34% to

50% higher than that of the general prison population.

Appellant’s Br. at 10 (citing Nancy Wolff et al., Understanding

Sexual Victimization Inside Prisons: Factors that Predict Risk,

6 Criminology and Pub. Pol’y 535, 549 (2007)). The Ninth

Circuit has stated that “[w]e can hardly conceive of a state’s

action bearing more stigmatizing consequences than the labeling

of a prison inmate as a sex offender.” Neal v. Shimoda, 131

F.3d 818, 829 (9th Cir. 1997) (internal quotation marks

omitted); see also Coleman v. Dretke, 409 F.3d 665, 668 (5th

Cir. 2005) (noting that when a state labeled an individual as a

8

Even though Pennsylvania’s SOTP is based on a statute

and DOC regulations, Renchenski does not argue that his due

process claim stems from a state-created liberty interest.

17

sex offender, it “strongly implied” that the identified individual

had committed a sex offense, “which can undoubtedly cause

adverse social consequences”) (internal quotation marks

omitted); Chambers v. Colorado Dep’t of Corr., 205 F.3d 1237,

1242 (10th Cir. 2000) (noting that the sex offender label is

“replete with inchoate stigmatization”). Accordingly, we agree

with Renchenski that classifying him as a moderate/high risk sex

offender—or even as a possible sex offender—is stigmatizing.

We also believe that the SOTP seven-step program,

which consists of weekly psychotherapy sessions for

approximately two years, is sufficiently similar to the forced

transfer to a mental institution that the Supreme Court

determined triggered a liberty interest in Vitek. Just as the

Supreme Court reasoned that being confined to a mental

institution was not within the sentence imposed on the prisoner

in Vitek, who was incarcerated and being punished for robbery,

mandating Renchenski’s participation in SOTP is not within the

sentence imposed since he is incarcerated for committing

murder in the first degree and not for committing a sexual

offense. In other words, because Renchenski was convicted of

murder and his punishment is predicated upon that conviction,

sex offender treatment is not one of the conditions of

confinement that his sentence imposes upon him. In turn,

compelled treatment, i.e., sex offender therapy, changes the

conditions of Renchenski’s sentence and, accordingly,

constitutes a loss of liberty that exceeds his loss of freedom from

confinement. See Vitek, 445 U.S. at 492.

We agree with the Eleventh and Fifth Circuits, which

18

have held that labeling a prisoner a sex offender and forcing him

or her to submit to intensive therapy triggers a liberty interest.

For example, in Kirby v. Siegelman the Eleventh Circuit held

that Alabama’s classification of inmate Edmond as a sex

offender implicated a liberty interest under the Due Process

Clause, and it remanded to the district court to determine

whether the procedures afforded by the state satisfied the

Fourteenth Amendment’s requirements. 195 F.3d 1285, 1287,

1290 (11th Cir. 1999). Edmond was serving a twenty-year

sentence for attempted murder, and the state classified him as a

sex offender based on two prior sex-related crimes listed in his

PSR. Id. at 1288. Edmond was not convicted of either sex

crime. In fact, the grand jury did not return a true bill for the

charge of rape upon which Alabama relied. Id. Once classified

as a sex offender, Edmond was required to participate in group

therapy sessions in order to be eligible for parole. Id.

The Eleventh Circuit concluded that the Due Process

Clause gave rise to an independent liberty interest in not being

labeled a sex offender and that “[a]n inmate who has never been

convicted of a sex crime is entitled to due process before the

state declares him to be a sex offender.” Id. at 1292. It

reasoned that branding Edmond a sex offender and forcing him

to participate in behavioral modification therapy constituted a

change in his confinement so severe that it exceeded the

sentence imposed by the trial court. Id. at 1291. While the

Eleventh Circuit briefly mentioned that Edmond’s refusal to

participate in the therapy program affected his eligibility for

parole, the court did not indicate that this fact was dispositive.

Rather, the Eleventh Circuit focused on the stigma associated

with being labeled a sex offender, which, when coupled with

19

mandatory therapy, was sufficiently similar to Vitek to trigger

due process protection. Id. at 1292.

Similarly, in Coleman v. Dretke, the Fifth Circuit held

that requiring a prisoner to register as a sex offender and

participate in therapy as a condition of supervised release

triggered a liberty interest. 395 F.3d 216, 222-23 (5th Cir. 2004)

(rehearing en banc denied). While on parole for burglary,

Coleman was indicted for aggravated sexual assault of a minor,

but pleaded guilty to misdemeanor assault. The parole panel

required him to register as a sex offender and participate in

behavioral modification as part of his supervised release. He

was never given notice of an opportunity to contest these

conditions, and when he failed to participate in therapy, his

parole was revoked.

The Fifth Circuit agreed with the Eleventh Circuit in

Kirby, and relying on Vitek, held 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 offender

classification and conditions.” Id. at 222. The court noted that

in addition to the extreme stigmatization associated with being

labeled a sex offender, the “state’s sex offender therapy,

involving intrusive and invasive behavioral modification

techniques[,] is analogous to the treatment provided for in

Vitek.” Id. at 223. Therefore, while conceding that parolees

often are required to participate in “some form of counseling .

. . as a condition on their release . . . due to its highly invasive

nature, [the SOTP] is qualitatively different from other

conditions which may attend an inmate’s release.” Id.

(quotation marks omitted). Therefore, the court ruled that

20

Coleman’s liberty interest triggered procedural due process

protections.

We agree with this analysis and join the Fifth and

Eleventh Circuits in holding that the stigmatizing effects of

being labeled a sex offender, when coupled with mandatory

behavioral modification therapy, triggers an independent liberty

interest emanating from the Due Process Clause of the

Fourteenth Amendment.

Defendants’ arguments to the contrary are unpersuasive.

First, Defendants contend, and the District Court agreed, that

Renchenski has not been labeled as a sex offender, but rather

has been designated a “possible sex offender” whom DOC has

recommended be assessed to determine whether he would

benefit from participation in the SOTP. This assessment,

Defendants claim, is routine and a necessary part of the

rehabilitative process and prison management.9 This argument

is unconvincing for several reasons. First, Defendants cite to no

evidence in the record (such as the institutional sex offender’s

roster which they did not include in the joint appendix)

9

Defendants also argue that Renchenski’s claim of

stigmatization falls short because he has introduced no evidence

in opposition to their motion for summary judgment

demonstrating that the population at SCI-CT is aware of his

status or that SCI-CT has publicized the issue. This argument

is belied by the fact that the weekly therapy sessions are group

therapy sessions, which comprise as many as fifteen inmates. If

Renchenski were forced to participate, his categorization as a

sex offender would surely be known to the prison population.

21

supporting their assertion that Renchenski was labeled merely

as a possible sex offender. Renchenski, on the other hand, notes

that DOC classified him as a “mod/high” Sex Offender. (App.

at 323.) Indeed, a letter from Sidler responding to Renchenski’s

grievance signals DOC’s intention to add sex offender status to

his correctional plan. (Id. at 84, 92.) In any event, we discern no

difference for stigmatization purposes between being labeled a

sex offender and being labeled a possible sex offender.

Moreover, Defendants’ assertion that the assessment

Renchenski must submit to is routine and part of the

rehabilitative process is belied by the DOC’s own regulations.

Policy 13.8.1 § 11, which, as noted, governs inmates’ behavioral

health care, describes the assessment process in detail. A review

of this section indicates that the assessment does not determine

whether or not an inmate should be classified as a sex

offender—the very process Renchenski claims he is entitled to.

Rather, the assessment is a tool used to ascertain the level of sex

offender risk associated with each inmate in order to decide

which therapy group (moderate/high or moderate/low) is most

appropriate for the prisoner and to determine the risk of threat

to the community. See Policy 13.8.1 § 11(C)(1)(c). The

regulations do not indicate that a possible outcome of the

assessment is a determination that the inmate should not

participate in SOTP at all. Thus, once at the assessment stage,

the stigma of sex offender status has already attached to the

inmate.

Next, Defendants contend that because the assessment is

routine, it does not constitute a significant or atypical hardship

in the context of ordinary prison life. If Renchenski were a

22

convicted sex offender, this statement would ring true since

Pennsylvania law requires a sex offender to participate in

treatment as part of normal prison life. See 42 Pa. Cons. Stat. §

9718. In other words, in Pennsylvania a convicted sex

offender’s punishment includes participation in sex offender

therapy. Here, however, Renchenski is a convicted murderer

and there is no evidence suggesting that sex offender treatment

is part of the punishment imposed on convicted murderers in

Pennsylvania. Nor did Defendants offer evidence suggesting

that all prisoners, regardless of their offense of conviction, are

assessed to determine their level of sex offender risk and the

appropriate sex offender treatment group. In any event,

Defendants conflate the independent due process liberty interest

test with the significant and atypical hardship test, which is

utilized to determine whether a state-created liberty interest

exists. See Sandin, 515 U.S. at 483-84 (“States may under

certain circumstances create liberty interests which are protected

by the Due Process Clause. But these interests will be generally

limited to . . . not exceeding the sentence in such an unexpected

manner as to give rise to protection by the Due Process Clause

of its own force . . . [as opposed to a state-created liberty interest

which] imposes atypical and significant hardship on the inmate

in relation to the ordinary incidents of prison life.” (internal

citations & quotation marks omitted)). Here, Renchenski argues

that his claimed liberty interest is protected by the Due Process

Clause itself, which requires a showing of a severe change in

conditions of confinement. Thus, whether sex offender

treatment therapy is routine within Pennsylvania’s prisons is

immaterial.

Perhaps recognizing the fault in relying on the significant

23

and atypical hardship standard, Defendants also argue that

Renchenski has failed to highlight any significant change in his

conditions of confinement. They contend that participation in

the SOTP would consume only a small fraction of his time in

prison and therefore that the treatment is dissimilar to Vitek,

where the inmate was physically removed to a mental institution.

This argument misses the mark. While the Supreme Court in

Vitek was certainly concerned over the physical transfer of the

prisoner, they emphasized their concern was with “[c]ompelled

treatment in the form of behavioral modification programs.”

445 U.S. at 492. Seizing on this language, at least two of our

sister circuits have also focused on the intrusive nature of

behavioral modification and neither the Fifth or Eleventh

Circuits required any sort of physical transfer as a prerequisite

for finding a liberty interest. See e.g., Coleman, 395 F.3d at

222-23; Kirby, 195 F.3d at 1292; Neal v. Shimoda, 131 F.3d

818, 828 (9th Cir. 1997). Therefore, while a physical transfer

may be sufficient to constitute a change in a prisoner’s

confinement, Vitek, Coleman and Kirby do not stand for the

proposition that a transfer is necessary for such a finding.

Defendants next argue that Renchenski’s participation in

the SOTP is “voluntary” and markedly different from Vitek,

where the plaintiff was transferred to a mental hospital. We

disagree. This argument is belied by the fact that according to

DOC policy refusing to submit to an assessment earns

Renchenski the label of a “mod/high” sex offender. In other

words, if Renchenski refuses to participate, he will face the very

stigmatization of being labeled a sex offender that he claims

triggers constitutional protection. Additionally, prison

regulations indicate that Renchenski will face punishments for

24

refusing to participate.

Moreover, we find no material difference between an

inmate refusing to participate in sex offender treatment and a

prisoner seeking to forestall transfer to avoid participation in

mental health therapy. Unless both plaintiffs are physically

dragged to therapy, both “voluntarily” refuse to participate.

Furthermore, there is nothing in the Supreme Court’s decision

in Vitek indicating that the mandatory nature of the treatment at

the state-run mental hospital was any different than the

mandatory nature of the SOTP to which Renchenski is subject.

Likewise, while the Eleventh Circuit in Kirby noted that

the plaintiff’s refusal to participate in the SOTP impacted his

eligibility for parole, that opinion focused and was predicated on

stigma combined with compelled therapy. And while the Fifth

Circuit in Coleman also noted the effect non-participation had

on the plaintiff’s parole, the court rejected the notion that the

prisoner enjoyed a state-created liberty interest and focused

instead on the stigma and intrusive nature of behavioral

modification therapy. But see Neal, 131 F.3d at 827-29 (holding

in the state-created liberty interest context that while

participation in Hawaii’s sex offender therapy was technically

voluntary, because refusing to participate rendered an inmate

completely ineligible for parole, the “coercive component of the

SOTP [was] functionally equivalent to the psychiatric treatment

required by the statute at issue in Vitek”). The Fifth Circuit went

even further and distinguished sex offender treatment from other

therapy programs offered and mandated by Texas’ prisons

because of the highly stigmatizing and intrusive nature of sex

offender therapy. 395 F.3d at 224.

25

The Seventh Circuit’s decision in Grennier v. Frank, 453

F.3d 442 (7th Cir. 2006) does not alter this analysis. In

Grennier, the court held that the stigmatization of being called

a sex offender and being denied parole on that basis does not

implicate due process. Grennier does not inform our decision

since it involved a claim of a state-created liberty interest, which

Renchenski does not assert is the basis for his liberty interest.

Additionally, we disagree with the Seventh Circuit’s

interpretations of Kirby and Coleman as being predicated solely

upon the fact that prisoners must participate in the SOTP in

order to be eligible for parole. Unlike in Neal, where eligibility

for parole was a dispositive factor, the Fifth and Eleventh

Circuits’ decisions were grounded in stigmatization coupled

with “some other tangible element”, i.e., mandated sex offender

treatment therapy. See Coleman, 395 F.3d at 223 n.26.

We recognize that prisons have a strong interest in

enrolling their inmates in various rehabilitative programs and

that prison administrators are in the best position to exercise

discretion in administering those programs. We agree with

Renchenski, however, that he has an independent liberty interest

in not being labeled a sex offender, which results in mandatory

sex offender therapy as part of a prescriptive correctional plan.

The Fourteenth Amendment therefore entitles Renchenski to

adequate process before Defendants can take this action.

ii. Adequate Procedure

Having determined that Renchenski has a due process

liberty interest in not being labeled a sex offender and forced

into treatment, we turn to what process will satisfy the

26

Fourteenth Amendment. “When protected interests are

implicated, the right to some kind of prior hearing is paramount.

. . . [A] weighing process has long been a part of any

determination of the form of hearing required in particular

situations by procedural due process.” Neal, 131 F.3d at 830

(quoting Bd. Of Regents of State Colls. v. Roth, 408 U.S. 564,

569-70 (1972)) (emphasis omitted). Because Renchenski was

never charged with, nor convicted of, a sex offense, the

procedure he was afforded during his trial and conviction for the

1982 murder cannot serve as the sufficient procedural safeguard

for Fourteenth Amendment purposes. Nor has he been afforded

the opportunity to properly challenge his sex offender

classification. See Coleman, 395 F.3d at 221.

Given Renchenski’s first degree murder conviction and

the strong State interest in administering rehabilitative programs

and maintaining order within the prison, however, Defendants

need not commence “a new adversary criminal trial” before

labeling Renchenski a sex offender and recommending him for

therapy. Morrissey v. Brewer, 408 U.S. 471, 483 (1972).

Rather, the Fourteenth Amendment entitles him to minimum

procedures which will result in “an effective but informal

hearing.” Id. at 485. These include: (1) written notice to

Renchenski that Defendants are considering classifying him as

a sex offender and mandating his participation in SOTP; (2) a

hearing, held sufficiently after the notice to permit Renchenski

to prepare, which includes: disclosure of the evidence

Defendants would rely upon for the classification, and an

opportunity for Renchenski to be heard in person and to present

documentary evidence; (3) an opportunity to present witness

testimony and to confront and cross-examine witnesses called by

27

Defendants, “except upon a finding, not arbitrarily made, of

good cause for not permitting such presentation, confrontation,

or cross-examination”; (4) administration of the hearing by an

independent decisionmaker; (5) rendering of a written statement

by the decisionmaker as to the evidence relied on and the

reasons for Renchenski’s classification; and (6) “[e]ffective and

timely notice of all the foregoing rights.” Vitek, 445 U.S. at

494-95 (citation omitted).10 “[T]he process should be flexible

enough to consider evidence including letters, affidavits, and

other material that would not be admissible in an adversary

criminal trial.” Morrissey, 408 U.S. at 489.

For the foregoing reasons, we reverse the District Court’s

grant of summary judgment in Defendants’ favor and remand

this case to the District Court for further proceedings consistent

with this opinion.11

10

We do not hold that due process requires the State to

appoint Renchenski counsel at this hearing.

11

The District Court did not address, and the parties did

not raise in their appellate briefs, issues of qualified immunity

or the appropriateness of monetary damages. Nor was the

important question of the allocation of the burden of persuasion,

or the extent of Defendants’ evidentiary burden, adequately

presented to the District Court. See E.B. v. Verniero, 119 F.3d

1077 (3d Cir. 1997). We express no opinion on these issues and

trust that the District Court will address them on remand.

28

b. Fifth Amendment Claim

Assuming, arguendo, that after a constitutionally sound

administrative hearing Defendants determine he is subject to sex

offender treatment, Renchenski claims that dubbing him a sex

offender and mandating participation in the SOTP would violate

his Fifth Amendment right against self-incrimination. The Fifth

Amendment, incorporated and made applicable to the states

through the Fourteenth Amendment, prevents a state from

compelling a person to incriminate himself or herself. U.S.

Const. amend. V (providing that no person “shall be compelled

in any criminal case to be a witness against himself”). While the

“privilege against self-incrimination does not terminate at the

jailhouse door . . . [a] broad range of choices that might infringe

constitutional rights in a free society fall within the expected

conditions of confinement of those who have suffered a lawful

conviction.” McKune v. Lile, 536 U.S. 24, 36 (2002). The Fifth

Amendment right against self-incrimination applies not only in

criminal trials, but whenever the state seeks to compel an

individual to be a witness against himself or herself and divulge

information that might incriminate that person in future criminal

proceedings. See Minnesota v. Murphy, 465 U.S. 420, 426

(1984).

The Supreme Court outlined the contours of a prisoner’s

Fifth Amendment right against self-incrimination in McKune,

which involved a convicted sex offender’s challenge to Kansas’

compulsory sex offender program and required him to admit his

crime of incarceration, as well as any other past sex crimes. 536

U.S. at 29. The information revealed by a prisoner during the

sexual abuse treatment program was not privileged, Kansas

29

reserved the right to use that information in future criminal

proceedings, and it tested the veracity of the prisoner’s

admissions with a polygraph. Id. at 30. Lile, the state

prisoner-plaintiff, was informed that if he refused to participate

in treatment, his privilege status would be reduced from Level

III to Level I, resulting in the curtailment of his visitation rights,

earnings, work opportunities, ability to send money to his

family, and other privileges. Id. at 31. Lile would also be

transferred to a maximum-security prison where his movement

would be limited, where he would be placed in a four-person

(instead of a two-person) cell, and where he would be

surrounded by more dangerous criminals. Id. Lile filed a Fifth

Amendment challenge to the compulsory sex offender therapy

based on the fact that incriminating statements made during

counseling were not privileged. Lile also argued that the

purported punishments he faced if he refused to participate were

sufficiently coercive as to constitute a violation of the right

against self-incrimination.

A plurality of the Supreme Court rejected this argument.

Before finding it necessary to address the issues of privilege and

immunity that Lile asserted rendered his participation in the sex

offender therapy program a Fifth Amendment violation, the

Court instructed that compulsion was the linchpin, since the

initial and “central question [was] whether the State’s program,

and the consequences for non-participation in it, combine to

create a compulsion that encumber[ed] [the prisoner’s Fifth

Amendment rights.]” Id. at 35. Referencing Sandin, the

plurality held that a “prison clinical rehabilitation program . . .

does not violate the privilege against self-incrimination if the

adverse consequences an inmate faces for not participating are

30

related to the program objectives and do not constitute atypical

and significant hardships in relation to the ordinary incidents of

prison life.” Id. at 37-38. Turning to Lile’s case, the Court

noted that refusing to participate in sexual abuse treatment did

not extend his term of incarceration, or affect his eligibility for

good time credits or parole. Id. at 38. The Court also reasoned

that the move to a maximum-security prison was not intended to

punish Lile, but to make beds available to other inmates willing

to participate in the program. Id. Finally, the plurality defined

the consequences of Lile’s reduction to Level I not as

punishments, but as “incentives to behave,” and reasoned that

the “Constitution accords prison officials wide latitude to

bestow or revoke these perquisites as they see fit.” Id. at 39.

Perquisites, the Court said, merely made prison life more

tolerable. Id. at 42. Thus, the Court directed lower courts to

“decide whether the consequences of an inmate’s choice to

remain silent are closer to the physical torture against which the

Constitution clearly protects or the de minimis harms against

which it does not.” Id. at 41. Because the consequences of

Lile’s refusal were de minimis, the Court ruled that his choice,

though not voluntary in the colloquial sense, did not amount to

compulsion. Id. at 44.

Justice O’Connor concurred with the plurality’s

judgment, but explicitly rejected the plurality’s atypical and

significant hardship standard, agreeing with the Stevens’

plurality that the compulsion standard was broader than the test

outlined in Sandin. Id. at 48-49. She concurred in the

judgment, however, because she felt that the alterations in Lile’s

prison conditions resulting from his refusal to participate in

treatment did not constitute compulsion since “[n]ot all pressure

31

necessarily compels incriminating statements.” Id. (alteration in

original). Justice O’Connor cited some of the penalties the

Court previously had identified as so great as to constitute

compulsion. These included termination of employment, loss of

professional license, inability to receive government contracts,

and inability to hold public office. Id. at 49-50 (citations

omitted). These were “grave” consequences, whereas the

consequences Lile faced were minor. Justice O’Connor,

however, explicitly rejected the portion of Justice Stevens’

plurality opinion that reasoned that because the penalties for

refusal to participate were the same penalties levied against

prisoners for disciplinary violations, the punishments constituted

compulsion. To the contrary, she noted that there “is a

difference between the sorts of penalties that would give a

prisoner a reason not to violate prison disciplinary rules and

what would compel him to expose himself to criminal liability.”

Id. at 52.

Relying on McKune, Renchenski contends that the

penalties for refusing to participate in the SOTP rise to the level

of compulsion and therefore violate his Fifth Amendment right

against self-incrimination.12 He contends that the District Court

incorrectly focused on the plurality’s atypical and significant

hardship test, which requires a heightened showing to establish

compulsion compared to the more modest showing required by

Justice O’Connor’s concurrence. Renchenski also argues that

the District Court erred when it held that the only consequences

12

Like Kansas’ treatment program, Pennsylvania’s

program requires participants to admit to all past crimes and

offers no privilege for those confessions.

32

of refusing to participate are that his name would be listed on

the offender’s roster as a “possible sex offender.”

Even though Renchenski is correct that Justice

O’Connor’s concurrence controls, his Fifth Amendment claim

nevertheless fails because the consequences he faces for

refusing to participate in the SOTP do not rise to the level of

compulsion even under Justice O’Connor’s narrower standard.

See United States v. Naranjo, 426 F.3d 221, 231 (3d Cir. 2005)

(noting that when “no one view garners a majority of the

Justices . . . . the holding of the Court may be viewed as that

position taken by those Members who concurred in the

judgment[] on the narrowest grounds”) (internal quotation marks

& citation omitted). Renchenski’s attempt to classify the

consequences he faces as more severe than the consequences at

issue in McKune is unpersuasive.

Renchenski first notes that his refusal to participate in sex

offender treatment—a Class I violation—may result in loss of

his prison job. While the Supreme Court has recognized that

loss of livelihood amounts to compulsion, it has not done so in

the prison context. To the contrary, in her concurrence, Justice

O’Connor noted that a reduction in prison wages did not

constitute compulsion because the “prison is responsible for

caring for respondent’s basic needs, [and therefore] his ability

to support himself is not implicated by the reduction in wages he

would suffer as a result.” McKune, 536 U.S. at 51. This logic

is equally applicable to loss of a prison job. Even if Renchenski

lost his only source of income, the DOC would still provide him

with food, shelter and access to medical care.

33

Renchenski counters that “[b]ecause he requires the

income from his prison job to pursue the appeal of his

conviction, loss of that job condemns him to remain in prison.”

Appellant’s Br. at 38. This argument is entirely unpersuasive.

Renchenski remains in prison because a jury of his peers

convicted him of first degree murder and the likelihood of

prevailing in a collateral attack on his 1984 conviction is far too

remote to constitute a basic need for Fifth Amendment purposes.

See United States v. Hollis, 569 F.2d 199, 205-06 (3d Cir. 1977)

(noting the strong presumption that the judgments of state

criminal courts are valid). Indeed, in January 2010, the

Pennsylvania Superior Court dismissed Renchenski’s petition

for post-conviction relief, ruling that while his initial petition

was timely, his decade-plus delay in pursuing his collateral

attack constituted abandonment of his claim, and that

Renchenski’s “failure to pursue his PCRA petition has now

created a situation where the Commonwealth would be severely

prejudiced were it required to retry the case.” Commonwealth

v. Renchenski, 988 A.2d 699, 703 (Pa. Super. Ct. 2010).

Renchenski has not appealed this ruling. Simply put, his case is

closed. Furthermore, we do not think that Renchenski’s desire

to pursue a collateral attack on his 1984 conviction with wages

earned from his prison job constitutes a “basic need” for Fifth

Amendment purposes.

Nor do any of the other consequences Renchenski faces

for refusal to participate in the SOTP rise to the requisite level

of compulsion. Prison regulations list the following outcomes

for failure to participate in the SOTP: assignment to disciplinary

custody for ninety days, cell restriction for thirty days,

suspension of the right to receive visitors, and loss of privileges

34

such as access to television, radio and the commissary. See

DC-ADM, 801, Inmate Disciplinary Procedures Manual § 4.

(App. at 500-01.) As noted above, in McKune at least five

Justices rejected the argument that loss of privileges, such as

access to television and radio, as well as suspension of the right

to receive visitors, constituted compulsion for Fifth Amendment

purposes.

Furthermore, these “punishments” are the same

consequences inmates face for a variety of infractions. In

addition to refusing to attend mandatory rehabilitative

correctional programs, Class I charges encompass refusing to

obey an order, violating visiting regulations, failing to report

contraband, etc. (App. at 517.) The consequences for

committing any of these infractions are the same. In other

words, Renchenski’s refusal to participate in SOTP may result

in the same consequence as another inmate’s failure to stand for

count or refusal to participate in a drug treatment program. This

is significant because in her McKune concurrence, Justice

O’Connor specifically rejected Justice Stevens’ conclusion that

because “the penalties facing [Lile] for refusal to incriminate

himself are the same as those imposed for prison disciplinary

violations . . . they are coercive.” 536 U.S. at 51. Here,

Renchenski merely confronts the same penalties that his peers

who commit any of the numerous enumerated Class I

disciplinary violations face.

Moreover, in McKune Justice O’Connor rejected Lile’s

suggestion that transferring him to a maximum-security

prison—a more dangerous prison—amounted to punishment.

Here, Renchenski may be sent to disciplinary custody or placed

35

on cell restriction. While this penalty will undoubtedly

inconvenience and isolate Renchenski, it is a far less serious

consequence than transferring a prisoner from a medium-to a

maximum-security prison, which the Supreme Court previously

found did not rise to the level of compulsion.

In short, loss of his prison job and other consequences

that flow from his refusal to participate in the SOTP do not rise

to the level of compulsion which would compel Renchenski to

expose himself to criminal liability. Therefore, we affirm the

District Court’s grant of summary judgment in Defendants’

favor on Renchenski’s Fifth Amendment claim.

c. Remaining Constitutional Claims

Renchenski next contends that classifying him as a sex

offender when he was never charged with, nor convicted of, a

sex offense violates his Sixth Amendment right to trial by jury.

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury. [The Supreme Court has] held

that these provisions require criminal convictions to rest upon a

jury determination that the defendant is guilty of every element

of the crime with which he is charged, beyond a reasonable

doubt.” United States v. Gaudin, 515 U.S. 506, 510 (1995)

(quotation marks & citation omitted). Because he was found

guilty of murder in the first degree under Pennsylvania law, and

not with a crime that contains a sexual element, Renchenski

claims that labeling him a sex offender and mandating his

participation in behavioral modification therapy violates the

Sixth Amendment.

36

Renchenski cites to Supreme Court cases that stand for

the broad proposition that an individual accused of a crime may

be found guilty based only on proof beyond a reasonable doubt

of each element of the crime. See In re Winship, 397 U.S. 358,

359 (1970) (holding that “proof beyond a reasonable doubt is

among the essentials of due process and fair treatment’ required

during the adjudicatory stage when a juvenile is charged with an

act which would constitute a crime if committed by an adult.”)

(internal quotation marks omitted); Cole v. Arkansas, 333 U.S.

196 (1948) (holding that the charging document must give the

defendant notice of the elements of the charged crime). His

reliance on these cases, however, is misplaced since they all

involved criminal proceedings. See United States v. Zucker, 161

U.S. 475, 481 (1896) (noting that the Sixth Amendment is

limited to criminal proceedings); Hannah v. Larche, 363 U.S.

420, 440 n.16 (1960) (affirming that Sixth Amendment

protections apply only during criminal proceedings). Because

Pennsylvania’s SOTP is not a criminal proceeding, the Sixth

Amendment is not implicated. Here, Defendants did not charge

Renchenski with rape and adjudge him guilty of the crime.

Rather, they evaluated his file and determined—albeit without

the protections of due process—that the nature of his crime

made him a candidate for sexual offender treatment.

Similarly, Renchenski’s reliance on Jenkins v.

McKetihen, 395 U.S. 411 (1969) is misplaced. Jenkins involved

a challenge to Louisiana’s Labor Management Commission of

Inquiry, which was tasked with investigating alleged violations

of state and federal labor law. Its purpose was to recommend to

the governor whether there was probable cause to believe that an

individual or organization had violated criminal laws. The

37

Commission had the power to subpoena witnesses, but the target

of the investigation could not call witnesses. The Supreme

Court held that the Commission violated the Fourteenth

Amendment because the Commission “exercises a function very

much akin to making an official adjudication of criminal

culpability.” Id. at 427. The Court went on to note that:

In the present context, where the Commission

allegedly makes an actual finding that a specific

individual is guilty of a crime, we think that due

process requires the Commission to afford a

person being investigated the right to confront and

cross-examine the witnesses against him, subject

only to traditional limitations on those rights.

Id. at 429. Unlike the Commission in Jenkins, here Defendants

are not accusing Renchenski of a new crime and making

culpability judgments. Nor are Defendants concerned with

exposing violations of criminal law. Id. at 428. Rather, they are

focused on ensuring that sexual deviants receive the appropriate

treatment to minimize the risk of future offense and to create a

safer environment within the prison.

Renchenski’s case is more akin to Hannah v. Larche, 363

U.S. 420 (1960), a case in which the Civil Rights Commission

survived a due process challenge. The Civil Rights Commission

was tasked with investigating allegations of voter suppression.

Targets of the Commission challenged its constitutionality on

due process grounds, arguing that they were entitled: (1) to

notice of the nature of the charges against them; (2) to know the

identity of the complainants; (3) and to cross-examine their

38

accusers. The Supreme Court rejected these arguments, holding

that the Commission “does not adjudicate. It does not hold trials

or determine anyone’s civil or criminal liability. It does not

issue orders. Nor does it indict, punish, or impose any legal

sanctions. It does not make determinations depriving anyone of

his life, liberty, or property.” Id. at 441. Similarly here,

Defendants are not adjudicating Renchenski guilty of rape; nor

are they extending his sentence or determining civil liability.

Rather, they are classifying him as a prisoner who, because of

the nature of his crime, would benefit from sexual offender

therapy. And although, as noted above, Defendants’ actions do

implicate Renchenski’s liberty interest, this constitutional

violation can be cured by affording him the appropriate due

process. The liberty interest, however, does not give rise to a

Sixth Amendment claim and certainly does not transform

Pennsylvania’s correctional plans into criminal proceedings.

Therefore, we affirm the District Court’s grant of Defendants’

motion for summary judgment based on Renchenski’s Sixth

Amendment claim.

The District Court also properly held that Defendants

were entitled to summary judgment on Renchenski’s equal

protection claim. The Fourteenth Amendment’s Equal

Protection Clause provides that no State shall “deny to any

person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1. “To prevail on an equal

protection claim, a plaintiff must present evidence that s/he has

been treated differently from persons who are similarly

situated.” Williams v. Morton, 343 F.3d 212, 221 (3d Cir.

2003).

39

If state action does not burden a fundamental

Constitutional right or target a suspect class, the

challenged classification must be upheld if there

is any reasonably conceivable state of facts that

could provide a rational basis for the

classification. If the challenged state action

involves a suspect classification based on race,

alienage or national origin, or infringes on a

fundamental constitutional right, we must apply

the strict scrutiny standard.

Doe v. Pennsylvania Bd. of Prob. and Parole, 513 F.3d 95, 107

(3d Cir. 2008) (internal quotation marks & citations omitted).

In his Amended Complaint, Renchenski accused

Defendants of not providing him with “Equal Protection of the

Law by ignoring State and Federal laws while sanctioning the

plaintiff as a sex offender without adhering to procedural

safeguards provided for by the law.” (App. at 75.) Although we

are mindful that pro se complaints are to be construed liberally,

see Giles, 571 F.3d at 322, we nevertheless affirm the District

Court’s ruling that Defendants are entitled to summary judgment

on Renchenski’s equal protection claim. Renchenski did not

allege, nor raise a material issue of fact demonstrating that

Defendants treated him differently because he is a member of a

suspect class or because he exercised a fundamental right. See

City of Cleburn v. Cleburne Living Ctr., 473 U.S. 432, 439-40

(1985).

Nor can Renchenski maintain an equal protection claim

based on the “class of one” theory of liability outlined by the

40

Supreme Court in Village of Willowbrook v. Olech, 528 U.S.

562 (2000). In Olech, the Court permitted a plaintiff to proceed

on a class of one theory when the plaintiff alleged that she had

been “intentionally treated differently from others similarly

situated and that there [was] no rational basis for the difference

in treatment.” Id. at 564; see also Phillips v. Cnty. of Allegheny,

515 F.3d 224, 243 (3d Cir. 2008). Here Renchenski argues that

“the state has created a suspect ‘class of one’ into which

[Renchenski] has been placed . . . [and that] there are no

‘similarly situated’ individuals due to [Renchenski] having no

sex offense history.” Appellant’s Reply Br. I at 17. His claim

fails because he has adduced no evidence of unequal treatment,

and in order to forestall summary judgment, Renchenski must

bring forth enough evidence from which a reasonable jury could

find in his favor. Here, he makes mere conclusory allegations.

And these allegations, even if accepted as true, fall short. He

does not allege, for example, that he is the only inmate in SCI-

CT who, though not charged or convicted of a sex offense, was

nonetheless labeled a sex offender based on a history of abusive

sexual behavior and recommended to sex offender therapy.

Therefore, the District Court properly granted summary

judgment in Defendants’ favor on Renchenski’s Equal

Protection Clause claim.

Similarly, Defendants are entitled to summary judgment

on Renchenski’s Eighth Amendment claim. The Eighth

Amendment “prohibits punishment which violate[s] civilized

standards of humanity and decency.” Griffin v. Vaughn, 112

F.3d 703, 709 (3d Cir. 1997) (citation omitted). To prove a

violation of the Eighth Amendment, a plaintiff must demonstrate

that prison conditions deprived him of life’s minimum

41

necessities, that the deprivation was sufficiently serious, and that

“a prison official acted with deliberate indifference in subjecting

him to that deprivation.” Id. Prison “[c]onditions must not

involve the wanton and unnecessary infliction of pain, nor may

they be grossly disproportionate to the severity of the crime

warranting imprisonment.” Union Cnty. Jail Inmates v. Di

Buono, 713 F.2d 984, 997 (3d Cir. 1983) (quoting Rhodes v.

Chapman, 452 U.S. 337, 347 (1981)).

Renchenski presents no evidence that he was denied

food, water, clothing, shelter, sanitation, or medical care.

Rather, he argues that the Defendants’ actions caused him

“extreme stress and anxiety.” (App. at 75.) We have held that

“[e]motional distress can produce injury of the same severe

magnitude as occurred in the cases of physical harm and

withholding necessary medical care, and it can be inflicted in the

same wanton and unreasonable manner.” Rhodes v. Robinson,

612 F.2d 766, 772 (3d Cir. 1979). To succeed on an Eighth

Amendment claim predicated on emotional distress, however,

we also require that the defendant’s wanton and unnecessary

infliction of emotional harm include an improper state of mind.

Id. “Where a person suffers injury as an incidental and

unintended consequence of official actions, the abuse of power

contemplated in the due process and Eighth Amendment cases

does not arise.” Id. Renchenski’s complaint lacks any

allegation that Defendants acted with the requisite culpability

necessary to finding an Eighth Amendment violation. Rather,

the stress Renchenski suffered was incidental to Defendants’

official actions. While we do not doubt being labeled a sex

offender caused Renchenski stress and anxiety, dubbing him a

sex offender and mandating behavioral modification therapy

42

does not constitute a deprivation of any basic human need.

Accordingly, the District Court properly entered summary

judgment in Defendants’ favor on Renchenski’s Eighth

Amendment claim.

2. Procedural Challenge

Although we reverse the entry of summary judgment as

to Renchenski’s Fourteenth Amendment claim and affirm the

District Court’s Order in all other respects, we pause here to

briefly address Renchenski’s argument that the District Court

improperly converted Defendants’ motion to dismiss into a

motion for summary judgment without permitting him leave to

take discovery.

Federal Rule of Civil Procedure 56(f) provides that a

party opposing a motion for summary judgment may file an

affidavit asking the court to stay its decision while he or she

conducts discovery to ascertain facts essential to justifying his

or her opposition. Renchenski maintains that the District Court

should have stayed its disposition of the converted motion for

summary judgment and afforded him the opportunity to take

discovery on: (1) the consequences he may have been subject to

for refusal to participate in the SOTP; (2) Pennsylvania’s

application of the sex offender label to prisoners never

convicted of a sex offense; (3) the SOTP’s nature and details;

(4) Renchenski’s PSR and the coroner’s report; and (5)

Renchenski’s classification on the sex offender roster. While he

did not file a formal Rule 56(f) affidavit, in his opposition to

Defendant’s Supplemental Brief, Renchenski clearly addressed

the difficulty of disputing the DOC’s asserted facts because he

43

had not yet been allowed discovery. (App. at 372 (“The plaintiff

has thus far been denied any type of discovery materials and it

is impossible for him to view, challenge, or verify that those

Standards and Practices [of the SOTP] are indeed written as the

defendants claim, and that the defendants are in fact following

them.”)).13

Although we review the District Court’s refusal to delay

its ruling on Defendants’ summary judgment motion under the

deferential abuse of discretion standard, we remain concerned

over the District Court’s disposition of this case. We have held

that while “it would be desirable in the interest of clarity for an

order to expressly notify the parties that the court was

converting a motion to dismiss into one of summary judgment

or that the ruling would be pursuant to Rule 56, the court need

not be so explicit so long as the order otherwise fairly apprises

the parties of the proposed conversion.” Rose v. Bartle, 871

F.2d 331, 342 (3d Cir. 1989) (citations and & quotation marks

omitted).14 Here, the Order noted that the District Court

13

At the time the District Court ordered Defendants to

file a supplemental brief to satisfy its concern over potentially

legally significant material facts, and before the District Court

converted Defendants’ motion to dismiss into a motion for

summary judgment, Renchenski’s discovery request was

pending.

14

We do not know whether the District Court sent

Renchenski a paper copy of its June 6, 2007 Order giving notice

of its intent to convert Defendants’ motion to dismiss into a

motion for summary judgment.

44

intended to rely on matters outside of the pleadings in its ruling,

and correctly stated that notice of the conversion and an

opportunity to respond are required. Nevertheless, we are

concerned that the notice may have been inadequate because the

Court never informed Renchenski of Rule 56’s requirements, his

need to file a Rule 56(f) affidavit to forestall Defendants’

motion for summary judgment, or of the consequences for his

failure to do so. Cf. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.

1992) (holding that the district court abused its discretion in

converting a motion to dismiss into a summary judgment motion

when the court did not inform the pro se prisoner of the

consequences of failing to file a Rule 56(e) affidavit); Lewis v.

Faulkner, 689 F.2d 100, 101 (7th Cir. 1982) (same).

In Kelly, the district court converted the defendants’

motion for dismissal into a motion for summary judgment

without informing the pro se prisoner that the court was treating

the defendants’ motion pursuant to Rule 56. Holding that the

district court prematurely disposed of the summary judgment

motion, the D.C. Circuit reasoned that:

A district court cannot properly act on a motion for

summary judgment without giving the opposing

party a reasonable opportunity to submit affidavits

that contradict the affidavits submitted in support

of the motion and demonstrate that there is a

genuine issue of material fact. . . . [R]easonable

opportunity presupposes notice. . . . [M]ere time is

not enough, if knowledge of the consequences of

not making use of it is wanting.

45

963 F.2d at 456 (citation & quotation marks omitted). The D.C.

Circuit further concluded that in order for notice to be adequate,

it must explain the consequences of a Rule 56 motion and the

effect of a failure to file a Rule 56(e) affidavit in opposition,

which are particularly important in the pro se prisoner context.

Id. Thus, the D.C. Circuit noted, in dicta, that incarcerating

governmental defendants should assist district courts in

providing proper notice to prisoner pro se plaintiffs by including

in their motions for summary judgment a plain statement that

any factual assertions in the movant’s affidavits will be accepted

by the district court as true unless the plaintiff submits his or her

own affidavit or documentary evidence contradicting the

assertions. The D.C. Circuit also required that Rule 56’s text be

sent to the prisoner-plaintiff in addition to a short and plain

statement summarizing the appropriate portion of Rule 56.

When the government failed to provide such notice, the court

placed the burden on the district court to send proper notice to

the prisoner-plaintiff. Several other circuits have taken a similar

view and have required district courts and governmental

defendants to inform pro se prisoner-plaintiffs of the contours

of Rule 56 and of the specific consequences for failure to submit

an opposing affidavit. See generally Graham v. Lewinski, 848

F.2d 342, 344 (2d Cir. 1988); Brown v. Shinbaum, 828 F.2d 707,

708 (11th Cir. 1987); Lewis v. Faulkner, 689 F.2d 100, 102 (7th

Cir. 1982); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.

1975); but see Martin v. Harrison County Jail, 975 F.2d 192

(5th Cir. 1992); Brock v. Hendershott, 840 F.2d 339, 343 (6th

Cir. 1987) (holding no additional procedure beyond that outlined

in Rule 56 is necessary in the non-prisoner pro se context);

Jacobsen v. Filler, 790 F.2d 1362, 1364-67 (9th Cir. 1986)

(same).

46

We agree with the majority of our sister circuits that

adequate notice in the pro se prisoner context includes providing

a prisoner-plaintiff with a paper copy of the conversion Order,

as well as a copy of Rule 56 and a short summary explaining its

import that highlights the utility of a Rule 56(f) affidavit.15

While we are mindful that this extra requirement imposes some

burden upon the district courts as well as governmental

defendants, we believe this burden is slight especially since

generic language can be readily compiled and disseminated as

needed. We therefore trust that in the future, the State and

Federal Governments, as well as our district courts, will work

together to ensure pro se prisoner-plaintiffs receive adequate

notice of an imminent motion for summary judgment.

“The failure to give adequate notice does not, however,

require automatic reversal; it may be excused if the failure was

a harmless error. Thus, [a] judgment may be affirmed if it

appears that there is no set of facts on which plaintiffs could

possibly recover.” Rose, 871 F.2d at 342 (internal quotation

marks & citations omitted). As noted above, there are no set of

facts on which Renchenski could recover on his Fifth

Amendment, Sixth Amendment, Eighth Amendment or equal

protection claims. Therefore, the District Court’s conversion of

Defendants’ motion to dismiss into one for summary judgment

and disposition of the case before Renchenski had proper notice

to respond was harmless.

15

In our view, the reasons for providing adequate notice

to incarcerated plaintiffs in the Rule 56(e) context apply with

equal force to Rule 56(f).

47

IV.

For the foregoing reasons, we will reverse the District

Court’s grant of summary judgment in Defendants’ favor as to

Renchenski’s Due Process Clause claim. In all other respects,

we affirm the District Court’s Order.

48