Appeal
from the United States District Court for the District of
Colorado D.C. No. 1:15-CV-00524-REB-KLM
Submitted
on the briefs [**]
Adam
Frank, Faisal Salahuddin, Frank & Salahuddin LLC, Denver,
Colorado for Plaintiff-Appellant.
Joseph
H. Hunt, Assistant Attorney General, Jason R. Dunn, United
States Attorney, Sharon Swingle and Dennis Fan, United States
Department of Justice, Washington, D.C., Phil Weiser,
Attorney General, James X. Quinn, Senior Assistant Attorney
General, Denver, Colorado, and Andrew D. Ringel, Gillian
Dale, and Keith M. Goman, Hall & Evans, L.L.C., Denver,
Colorado, for Defendants-Appellees.
Before
TYMKOVICH, Chief Judge, MURPHY, and HARTZ, Circuit Judges.
HARTZ,
Circuit Judge.
Plaintiff
Homaidan Al-Turki is a citizen of Saudi Arabia who was
sentenced by a Colorado state court to a term of eight years
to life. He wishes to serve the remainder of his time in
prison in his home country. A treaty permits this, but
requires approval of the State, the federal government, and
the foreign nation. Plaintiff alleges that he received
approval from the proper state official but Defendants
(several state and federal officials) then provided false
derogatory information to the State that caused it to revoke
its approval. He filed suit in the United States District
Court for the District of Colorado contending that Defendants
had violated his right to procedural due process under the
federal Constitution by not providing him a hearing to clear
his name before revoking the approval. He is not asking for
damages for the violation but seeks an injunction requiring
that he be granted a judicial hearing to clear his name and
that Defendants not repeat the false allegations against him.
Defendants
moved to dismiss the complaint for failure to state a claim,
and the district court granted the motion. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm. The
stigma that results from defamation by public officials is
alone insufficient to implicate procedural due process; the
defamation must also have caused an alteration in the
plaintiff's legal status-that is, there must be
"stigma plus." But Plaintiff has not adequately
alleged a plus factor here, because he suffered no change in
legal status as a result of Defendants' alleged
stigmatizing comments. Therefore, constitutional due process
did not require that he be granted a hearing before the
State's final decision against his transfer to a prison
in Saudi Arabia.
I.
BACKGROUND
While
incarcerated in Colorado, Plaintiff filed an application to
transfer to a prison in Saudi Arabia under the Organization
of American States' Inter-American Convention on Serving
Criminal Sentences Abroad (OAS Convention), an international
prison-transfer treaty. Any transfer under the OAS Convention
requires the consent of the sentencing nation, the receiving
nation, and the prisoner. See OAS Convention,
Article III § 2, June 9, 1993; 146 Cong. Rec. S10658-02
(Oct. 18, 2000) ("each transfer of a sentenced person
under this Convention shall require the concurrence of the
sentencing state, the receiving state, and the
prisoner"). Under guidelines for an international prison
transfer issued by the United States Department of Justice
(DOJ), a prisoner in the custody of a State must obtain the
State's approval of the transfer. The guidelines state:
When a foreign national prisoner has been convicted of a
criminal violation of a state law and is in state custody,
the prisoner must first obtain the approval of the state
authorities before he can be considered for transfer by the
Federal Government. Each state has its own application
process and procedures, which a prisoner must follow. If
a state denies a transfer request, the transfer cannot occur.
The Federal Government cannot compel a state to transfer a
foreign national.
If the state approves the transfer, it transmits the case to
the Department for review. Unless a treaty requirement has
not been satisfied or a compelling federal interest is
presented by the case, the Department generally defers to a
state's transfer decision, believing that the states are
best equipped to assess if transfer would be consistent with
state policy and the rights of any victims impacted by the
crime.
The most common basis for the Department to deny the transfer
of a state prisoner typically occurs when a prisoner has not
satisfied a treaty requirement. . . . On occasion, the
Department may also deny the transfer of a state prisoner
based on law enforcement, national security, or public safety
concerns.
DOJ,
Guidelines for the Evaluation of Transfer Requests
Submitted by Foreign Nationals, § IV (Aug.
31, 2018) (emphasis added).
Colorado
delegates authority for review and state-level approval of
transfer applications to the Colorado Department of
Corrections (CDOC); and the CDOC executive director and the
governor have discretion to approve or deny applications:
The [CDOC] is delegated the authority by the governor of
Colorado to approve the transfer of eligible foreign national
offenders, pursuant to the conditions of current treaties
which provide for such transfer, and the approval of the
Department of Justice and the affected foreign country.
Such transfer is a privilege and not a right. The
governor of Colorado, or the executive director, at their
sole discretion, may approve or deny the transfer of an
offender.
Colo.
Dep't of Corr. Admin. Reg. 550-05(IV)(B) (emphasis
added). The "Transfer Application Process" section
of the CDOC regulation provides that after a prison-transfer
application is approved by the executive director, "the
[CDOC Office of] Offender Services shall forward a completed
application packet to the [DOJ]." The application packet
...