Al-Turki v. Tomsic

926 F.3d 610

Homaidan AL-TURKI, Plaintiff - Appellant,

v.Ann TOMSIC, in her official capacity as Chief Deputy District Attorney; George Brauchler, in his official capacity as District Attorney; Jon Bibik, Special Agent; Robert Moen, Chief Division Counsel^* ; Paul Hollenbeck ; John Does 1-10, Defendants - Appellees.

No. 18-1226

United States Court of Appeals, Tenth Circuit.

FILED June 7, 2019

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 "shall be certified by the central records office." Id. at 550-05(IV)(D)(7)(a).

According to Plaintiff’s complaint, CDOC executive director Tom Clements signed a letter on January 14, 2013, approving his transfer application, but Clements then reversed course and denied the application in March. The complaint alleges the following sequence of events: On the day Plaintiff’s transfer was approved, Defendant Ann Tomsic (the prosecutor in Plaintiff’s state-court criminal case) contacted Defendant Paul Hollenbeck (the associate director of offender services for the CDOC) and asked if he could delay the transfer decision. About that same time, Defendant Robert Goffi (the FBI chief division counsel) informed Hollenbeck that he had information relevant to the transfer decision. Hollenbeck then delayed transmitting to the DOJ the paperwork approving Plaintiff’s transfer at the state level while Tomsic and Hollenbeck coordinated with Defendants Jon Bibik (an FBI special agent) and George Brauchler (a Colorado district attorney) to "stigmatize and defame Plaintiff." Aplt. App. at 520. Plaintiff claims that defamatory comments made by Defendants to executive director Clements caused him to reverse his initial approval of Plaintiff’s transfer application.

Relying on the stigma-plus doctrine, the complaint alleges that Defendants conspired to violate Plaintiff’s constitutional right to procedural due process by not providing him with a name-clearing hearing to defend himself against the allegedly false accusations before denying his request for a transfer to a Saudi Arabian prison.¹ Defendants moved to dismiss the complaint, and the district court granted their motions, holding that Plaintiff had failed to sufficiently allege the plus factor necessary to state a stigma-plus claim.

II. DISCUSSION

We review de novo the district court’s dismissal of Plaintiff’s complaint. See Moya v. Garcia , 895 F.3d 1229, 1232 (10th Cir. 2018). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).

The Fifth Amendment’s Due Process Clause forbids the federal government from depriving any person "of life, liberty, or property, without due process of law." U.S. Const. amend. V. The Due Process Clause of the Fourteenth Amendment similarly prohibits a State from "depriv[ing] any person of life, liberty, or property, without due process of law." Id . amend. XIV, § 1. Court interpretations of one due-process clause generally apply to the other; at the least, "the Fourteenth Amendment imposes no more stringent requirements upon state officials than does the Fifth upon their federal counterparts." Paul v. Davis , 424 U.S. 693, 702 n.3, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).

"The requirements of procedural due process apply only to the deprivations of interests encompassed by the [constitutional] protection of liberty and property." Board of Regents v. Roth , 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). A constitutionally protected liberty or property interest may be a creation of federal law (including the Constitution itself—at least for liberty interests) or of state law. See Wilkinson v. Austin , 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) ("A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ ... or it may arise from an expectation or interest created by state laws or policies ...."); Roth , 408 U.S. at 577, 92 S.Ct. 2701 ("Property interests ... are created and their dimensions are defined by existing rules or understandings that stem from [a source independent of the Constitution] such as state law ...."). Once a protected property or liberty interest is recognized, the Constitution may require certain procedures, such as a hearing, before depriving a person of...