Carver v. Lehman

here, court, that is not the case where the Deprive Not Petitioners Does The Order scope investigation report of the has Immunity Qualified Their screening two orders and a been limited Defense addition, order. In subsequent dismissal order argue Petitioners Tuzon’s claims of deliberate indifference qualified of their them the benefit denies type are of a not limited to and retaliation But are immunity petitioners defense. may Tuzon and thus affect other inmates. any immunity issue free to raise light petitioners’ inves- results raised it in' théir Rule time and could have file, grievance the dis- tigation of Tuzon’s 12(b) motion, before this which was filed that, in trict court could further conclude If choose to await petition. petitioners case, creatq appropriaté it was exhaustion defenses be disposition of their substitute record. comprehensive, claims, immunity that is cer raising fore Martinez, F.2d at 319-20. however, it is fac tainly prerogative; their order, clearly The district court did not err in allege inaccurate to tually investigate the sub- ordering petitioners fore strategy, than trial petitioners’ rather surviving and to immunity stance of Tuzon’s of their de claims closes the benefits findings. Be- report containing file a its fense. error, cause we find no clear we do Remaining Claims Petitioners’ remaining reach the Bauman factors. Ripe Moot or Not Either petition prohibition for a writ forces argue that the order Petitioners DENIED. quan- into an ethical

government counsel opportunity and forecloses their dary grounds. on exhaustion move for dismissal because, argument is moot The latter above, on the district court has ruled noted motion, filed after petitioners’ dismissal entered, finding Tuzon the order was CARVER, Plaintiff-Appellant, Joseph to exhaust some claims. failed argument that the or Petitioners’ Kimberly Acker; government LEHMAN; counsel in an ethi places Joseph

der yet ripe, petition Roberts; as the quandary cal is not be Named Six to Victoria Defendants-Appellees. that the only alleges possible” Defendants, that “it is counsel to require government order will No. 06-35176. rule. representation violate an adverse Appeals,

United States Court Ninth Circuit. CONCLUSION option within its broad permissible As a 17, 2007. Argued April discretion, in an appropri- a district court 28, 2008. April Submitted Martinez-style order ate case can issue Filed June reasonably- pretrial tailored to the that is court to assess the needs of the district in some possible it

case. While repre- order to instances for Martinez by the district an abuse of discretion sent

REINHARDT, Judge: Circuit question presents

This case whether in- Washington state law creates early terest in an inmate’s release into community custody protected that is under the Due Process Clause of the Fourteenth Amendment. hold that it does. We We conclude, however, right that this was not clearly at the time of the facts established giving rise to this case. We therefore grant qualified affirm the district court’s of immunity.

I. Factual and Procedural Background Baker, Esq., Gregorian, Todd Tyler A. Mewes, Esq. (argued),

Esq., Heather N. August Joseph In Dale Carver LLP, View, West, Mountain pled guilty Fenwick & to child molestation in the third CA, degree. fifty-four He was sentenced to the plaintiff-appellant. custody in the of months of confinement Olson, McKenna, Esq., Esq. Sara J. Rob Department of State Cor- Rosen, Esq., of (argued), Gregory J. Office (“DOC” “Department”). Be- rections General, Washington Attorney Crimi- offender, he state law also cause was sex Division, WA, for the Olympia, nal Justice be sentenced to a required Carver defendants-appellees. community custody begin “ei- term of completion of the term of con- upon

ther time is trans- finement or at such as [he] community custody in ferred to lieu of See Wash. earned release!.]” Rev. Code 9.94A.710(1)(2006).1 § He was sentenced community thirty-six-month period of to a custody. FERGUSON, J.

Before: WARREN good prisoner behavior as a Carver’s REINHARDT, and MILAN STEPHEN him an release date of June earned offense, however, JR., SMITH, 2002.2 Carver’s sex Judges. D. Circuit 9.94A.700(4)-(5) 9.94A.710(2)-(3), §§ Appeals has ex- 1. The Court Code custody plained “[c]ommunity discretionary is the in- (listing mandatory condi- monitoring in the com- tense of an offender subject imposed to commu- tions on offenders period year munity for a of at least one after alia, including, reporting nity custody inter Al- release or transfer from confinement. fees, payment supervision requirements, community though purposes, cus- it has other prohibitions against possession of con- punishment, tody nature of continues in the consumption of alco- substances and trolled equivalent general and is not release.” hol). Crowder, Wash.App. re (1999). Offenders in explained are not in the 2. For reasons that pre-approved by DOC live in a residence us, subsequently before this date was record mandatory subject and discretion- and are January pushed back to ary imposed by conditions either the DOC or See, e.g., sentencing court. Wash. Rev. two, if teenth Amendment and that even being from released on his precluded him existed, Defendant Lehman date. Wash. such earned Rev. Code (2006). 9.94A.728(2)(a) Rather, immunity.5 state qualified was entitled to Car offenders be- timely jurisdiction that sex ver provides appealed. law We for transfer eligible come to review the district court’s determination Eligi- release. Id. custody in lieu of pursuant to 28 U.S.C. and we re custody bility for transfer grant summary judg de novo its view plan[s]” sub- based on “release determined finding qualified immunity. ment and mitted offenders. Rev. County, See Mabe v. San Bernardino Wash. Code 9.94A.728(2)(c). 2002, In March Carver Sens., 1101, Dep’t F.3d Pub. Soc. 237 of plan. plan a release His was (9th submitted Cir.2001); County 1106 Galen v. of 2002, pursuant to a DOC April denied in (9th 652, Angeles, Los 477 F.3d 658 Cir. provided for the then in effect which policy 2007). plans of release of of-

categorical denial Carver, fenders, Depart- whom the like II. Discussion “appear[ed] to meet the ment determined The Due Process Clause of the sexually predator a violent definition of provides Fourteenth Amendment that no been referred for Civil had] and [who life, “deprive any person state shall of Policy DOC Directive Commitment....” liberty, process or without due of property, 2001).3 4, a result of the (May 350.200 As Const, XIV, § law....” U.S. amend. 1. plan, Carver proposed denial of his analysis process pro Our of due claims served his full term of confinement. steps. ceeds two first asks “[T]he 2004, filed a civil September Carver liberty property whether there exists a or 1983, 42 assert- rights suit under U.S.C. interest which has been interfered with early him ing that officials denied DOC State; second examines whether community custody without release into procedures upon depri attendant that process him of law under the affording due constitutionally vation were sufficient.” Fourteenth Amendment.4 The district Ky. Dep’t Thompson, Corr. v. 490 U.S. of court, and recommen- adopting report 454, 460, 1904, 104 L.Ed.2d 506 granted the magistrate judge, dation of the (1989) (citation omitted). summary judg- DOC officials’ motion for one, principal grounds: recognized ment two that that “[a] on We liber liberty ty law does not create a interest arise from either two process interest release into sources: the due clause itself custody McCarthy, and therefore Carver did not have state law.” Toussaint v. 801 (9th Cir.1986). 1080, process right protected a due the Four- F.2d 1089 Carver Roberts, explain infra, policy berly 3. As we was subse- Acker and Victoria this both DOC by Washington making quently down Court officials involved in end struck of sentence Appeals Wash.App. re of 755, in In 114 review determinations. (2002) (holding "DOC adopted magis- 5.The district court also Policy governing ... 350.200 violates the stat- judge’s finding trate that Defendants Acker utes”). summary judg- and Roberts were entitled to original complaint named as a de- ment Carver's because Carver failed to show that Lehman, only Joseph secretary any played part enacting of the "these defendants fendant plan policy precluded being DOC at the time that Carver’s release [Carver] from complaint, ap- was denied. In his amended Car- considered for release.” Carver does not defendants, peal portion judgment ver named two additional Kim- below. (9th Cir.1991) Due Process Clause does F.2d 1065-66 (holding concedes that the liberty interest in an inmate’s not create a Guam law creates a interest expira before the ] release[ ] Corr., parole); Baumann v. Ariz. Dep’t “conditional a valid tion of sentence.” Greenholtz (9th Cir.1985) (hold F.2d 843-45 Penal and Inmates the Nebraska Corr. ing Arizona law does not create a 1, 7, Complex, S.Ct. release); in custodial interest Balla v. Ida (1979). Rather, argues L.Ed.2d 668 he Corr., ho State Bd. 869 F.2d statutory state’s scheme (9th Cir.1989) (holding Idaho law does not governing early release into create a in parole). We mandatory language, custody “uses turn to that task now. ‘creat[ing] presumption desig will ... unless certain granted’ statutory A. The scheme made, findings thereby gives nated governing release into com- interest.” rise to constitutional munity custody creates constitu- Duncan, McQuillion v. 306 F.3d tionally protected liberty interest. Cir.2002) (9th Greenholtz, 442 (quoting Washington law mandates that an 12, 2100; citing Bd. U.S. 99 S.Ct. of individual convicted of a sex offense be Allen, 369, 377-78, Pardons v. 482 U.S. sentenced to a term of (1987)). 2415, 107 96 L.Ed.2d 303 As S.Ct. begin upon completion that “shall either cases, in task here is to prior apply our term of confinement or at such time as mandatory language rule well-established community the offender is transferred to liberty interests governing state-created custody in lieu of earned release.” Wash. in Supreme set forth Court Green 9.94A.710(1). § Unlike other Rev. Code holtz and Allen to the statuto then, inmates, a convicted sex offender See, ry e.g., at issue.6 Sass v. Cal. scheme who accrues “earned release time for Terms, 1123, 461 F.3d 1127- Bd. Prison good good performance” and Cir.2006) behavior (9th (holding law 28 California rather, release; not entitled to he is liberty parole); Biggs creates a interest (9th Terhune, eligible for transfer into custo 910, v. 334 F.3d Cir. 2003) (same); McQuillion, dy at an earlier date. Wash. 306 F.3d at Rev. Code (2)(a). Duenas, (same); 9.94A.728(1), § requires v. The law 901-902 Bermudez brief, avoiding reply argued have a interest 6. In his Lehman that San inmates Conner, "supermax” prison). placement in a As Leh- din v. 515 U.S. 115 S.Ct. (1995) properly supplemental our conceded in his 132 L.Ed.2d 418 should control man court, Sandin, inquiry. the Su to the we have held interest In submissions since holding sep- challenge pris to "the preme to a that Sandin's was limited Court considered segrega question pro- regulation imposing disciplinary arate but related of when due on 475-77, interests are created internal tion for misconduct. Id. at 115 S.Ct. cess McQuillion, regulations.” holding regulation prison 306 F.3d at that the did not interest, added). Sass, (emphasis See also create a the Court did not (explaining “mandatory language” that this court apply the framework F.3d at 1127 n. 3 481-86, "consistently rejected argument” th[e] and Allen. Id. at has Greenholtz " Instead, ‘mandatory lan- S.Ct. 2293. it focused on whether that Sandin eliminated "). arising regu guage' approach and Allen challenged restraint from the Greenholtz significant Accordingly, apply the "man- "impose[d] atypical and we continue lation datory language” rule set forth in hardship on the inmate in relation to the Greenholtz ordinary prison and Allen in order to determine whether incidents of life.” Id. See Austin, statutory Washington's creates a lib- 222- scheme also Wilkinson (2005) erty release into 162 L.Ed.2d (applying custody. Sandin to determine whether Ohio that re- program plan, to effectu- release the DOC instructed develop DOC community custody of transfer to plans ate the lease of sex offenders be assessed to such inmates. Rev. Wash. Code degree determine “the of risk victims 9.94A.728(1). of that part program, As age or potential and victims of similar The law then describes Wash. ment.” an er to should the conditions of tions of tion including proposed earned release time community custody status determines an offender’s approved Department propose living (1) evaluate such release department of this section if supervision, [2] arrangements, residence and a release Rev. Code must may deny the sentence or condi- “require the offend- pursuant to subsec- residence location plan that includes place the offend- how the DOC 9.94A.728(2)(c). living arrange- ^[1] plans, stating: department may in lieu of violate plan, playground, or other facilities where chil- minor victim(s) proposed by tion will plan may to certain Policy court-imposed circumstances” and to ensure cy re-offend, Directive 350.200 present return to a residence where minor victim(s), school, Directive place or other children of similar be denied if the exceptions, in the an or conditions, the offender specified offender within residence[.]” close (May “[s]ex child care proximity at the that a residence proposed offenders will that, subject 2001). violation of DOC Poli- likely center, to the loca- The risk age age dren of similar and circumstances sur-

er at to violate the conditions of the risk rounding present the conviction are sentence,[3] at risk to place the offender reoffend, ^[4] present a risk to victim who put at substantial risk of harm community safety. safety or that residing thé offender at location.8 policy provided The for 9.94A.728(2)(d) DOC’s also the § (empha- Rev. Wash. Code added).7 categorical plans denial of release “if the sis End of Sentence Review Committee has statutory the comply order to with that appears determined the offender mandate, Policy Di- promulgated the DOC sexually meet the definition of a violent rective the version of this 350.200. Under policy predator in force when Carver submitted his has been referred for s/he preservation provision goes on to state that sion’s the DOC of "[t]he 7. The discretion authority department's under this section is deny "in the event that it any independent court-ordered condition of determinations!,]” of the makes one four is statutory provision regarding sentence con- or precisely type of substantive limitation community for or ditions gives that rise to the that we interest placement.” Rev. Wash. Code recognize. now 9.94A.728(2)(d). argues § The concurrence it clear that that this sentence makes 8. The final of these criteria is drawn from 9.94A.728(2)(d) pre- is "to function of section 72.09.340(3)(a) Washington's Re- deny the discretion to trans- serve to the DOC provides vised Code which that the DOC is fer event it makes one of the four in the that reject "authorized to a residence location if determinations, notwithstanding what other proposed prox- residence is within close legal might require.” sources otherwise schools, centers, imity play- child care disagree. Op. at We do not Cone. grounds, grounds or other or facilities where provision permits fact that the DOC to age children of similar or circumstance as a deny legal even where other release sources previous present depart- victim are who the irrelevant, however, would allow for it is may put whether, ment determines be at substantial question regardless at hand: sources, risk the sex at of harm offender's residence legal places other statute itself location.” substantive limits on the DOC's exercise of Wash. Rev. Code 72.09.340(3)(a) (2006). infra, provi- § explain we discretion? As provi- statutory Civil Commitment....”9 This final reasons for denial of a re- sion, plan 9.94A.728(2)(d). under which lease plan Carver’s release set forth in 9.94A.710(1) denied, Section subsequently requires was was eliminated that sex of- fenders be sentenced to a term Appeals after the Court of of commu- nity custody to begin either statutory held that it violated the when the of- require- fender’s term of confinement complete “may ment that all sex offenders become or when he is transferred as a result of eligible” community custody. for In re 9.94A.728(1) earned release time. Section Dutcher, 60 P.3d at 638-40. See also Let- requires likewise the DOC to develop and Fiala, ter from Anne L. Deputy Assistant promulgate procedures by which a sex of- Secretary, Washington Dep’t State of Cor- fender eligible become for transfer to rections, Opera- to Office of Correctional community custody in lieu of earned re- (Jan. 2003).10 tions Management lease time. The same section then sets argues Carver statutory forth the limited circumstances under protected liberty scheme creates a Department which the “may deny” an in- it requires because the DOC to transfer an proposed plan mate’s for transfer to com- inmate to custody in lieu of munity custody. Wash. Rev. Code any earned release “unless one of the ... 9.94A.728(2)(d) (listing legitimate rea- specifically designated reasons denial, sons a DOC determination that found[,]” thereby “creat[ing] presump- plan, may the release violate the conditions tion that cus- [into supervi- conditions of sentence tody] will granted, and that this in turn sion, place the at offender risk to violate creates a legitimate expectation of release sentence, the conditions of place absent the requisite finding that one of the reoffend, offender at risk to or present a justifications for exists.” [denial] Green- risk to community safety). victim or By holtz, 11-12, 442 U.S. at 99 S.Ct. 2100. placing substantive limitations on DOC’s Allen, 377-78, See also and, discretion to plans agree. S.Ct. 2415. We particular, by requiring denial of such statutory scheme uses plans based on be the limited criteria con- language that effectively mandates the 9.94A.728(2)(d), tained in section Washing- transfer to community custody of those ton has created a in early interest inmates who have earned release time and release into that is who have not protected been found to meet one of by the Due Process Clause of "[wjhen 9. "sexually plans state law defines plan vio- the offender’s is to return predator” "any person lent who has been victim(s) to a residence where there is a that charged convicted of or with a crime of sexu- risk[,]” [department] the believes at is and for al violence and who suffers from a mental rejection proposed the residences under the abnormality personality disorder which prior same criteria as set forth in its directive. person likely engage predato- makes the in (June 25, Policy See DOC Directive 350.200 ry acts of sexual violence if not confined in a 2002). policy initially The amended also re- facility." secure Wash. Rev. Code provision requiring categorical tained the 71.09.020(16) (2006). An offender deter- plans ap- denial of the release of those who sexually predator may mined to be a violent pear sexually predator meet violent subject be to civil commitment after his term definition and have been referred for civil of confinement. Wash. Rev. Code 71.09.040 explain supra, commitment. Id. As we (2006). categorical provision denial was eliminated after the Court of deci- Appeals' Policy The DOC amended Directive form, sion in In re 60 P.3d at 640. 350.200 in June 2002. In its amended policy provides for the denial of release mandatory lan- Allen, more traditional use the See Amendment.11 the Fourteenth early in release (clarify- used other 375-76, guage formula at 482 U.S. statutes, stating that the DOC “shall” may grant “significant i.e. ing a state that apply findings “unless” certain grant the decisionmaker” release discretion to contrary criteria” without made, a result. require or broad does not “general liberty in- Allen, prisoner 107 S.Ct. 2415 “depriving] at is long as “release in so parole[,]” terest that a statute (rejecting argument deter- after required the[decisionmaker] formula must contain the “shall/unless” discretion) (in that interest). its broad mines Al- a to create order exist”). See also necessary prerequisites significance to we have accorded though that Baumann, (noting F.2d assessing “shall” in the use of the term constitutionally a may create state “[a] create a early release statutes whether establishing by liberty interest protected interest, have never held we impose substan- measures regulatory required order of this term is use of official the exercise tive limitations on mandatory language rule set satisfy the discretion”); Spaulding, Bergen Allen. Nor do we forth Greenkoltz Cir.1989) (“A (9th board F.2d of the word Despite here. the absence deciding prisoner’s charged with “shall,” language that the we conclude significant dis- may delegated be 9.94A.728(2)(d) mandatory. Sec- section decision, yet be making its cretion 9.94A.728(2)(d) that the de- provides tion in exercis- by legal standards constrained communi- “may deny transfer to partment discretion____that may scheme ing that criteria custody any one of four ty if” give rise to By establishing criteria under is met. omitted). release.”) (internal citation denied, which release 9.94A.728(2)(d) presumption creates governing Washington statute

That the that, of one those custody absent the existence does would argued mined or unless such restriction argument, Lehman 11. At oral family impede reunification efforts ordered specific criteria for de presence of more department in sec proposed locations the court or directed nial residence 72.09.340(3)(a) depart- Carver’s undermines and health services. The tion of social reject criteria listed in sec contention that the four authorized to a resi- ment is further 9.94A.728(2)(d) provide the exclusive le proposed tion if the residence is dence location plan. schools, a release gitimate for denial of bases proximity to child within close care denial of the bases for centers, Lehman is incorrect: playgrounds, grounds or or other i contained in proposed locations residence age children of similar or facilities where are, effect, 72.09.340(3)(a) specific in section previous pres- as a victim are circumstance general more formula variations of the same may department determines be ent who plans in for denial of release tions set forth by put risk of harm the sex at substantial 9.94A.728(2)(d). Section at that location. offender's residence 72.09.340(3)(a) provides: proposed for denial of a resi- These bases dence, take into account whether the which approve not a resi- department shall [T]he past poten- near a or residence includes or is proposed residence: dence location if victim, examples simply specific tial more (i) victim or child of simi- Includes a minor legiti- that serve as of the final two criteria previous a vic- age circumstance as lar or denial under mate bases department be determines tim who the 9.94A.728(2)(d), "proposed whether res- put risk of harm the of- at substantial household; living arrangements (ii) ... idence location and or fender's residence reoffend, pres- place at risk to or the offender proximity of the current resi- close is within victim, safety community to victim or safe- ent risk unless the where- dence of a minor 72.09.340(3)(a). ty.” deter- minor victim cannot be abouts of the Code Wash Rev.

667 criteria, granted. rep- will The tation that granted release release will be unless criteria, specified one of the conditions exists. specif- etition of the albeit more 72.09.340(3)(a) form, ic in section and in Our conclusion supported by is Wash Policy Directive 350.200 confirms our un- ington state court finding decisions a limit derstanding mandatory nature of liberty ed interest in transfer to communi the statute. ty custody release, in lieu of early as well interpreting as the statutory provisions “may deny ... if’ operates formula governing such transfers. The Washing n precisely the same manner and has ton Court of Appeals has consistently precisely grant the same effect a “shall found a liberty “limited interest in early “may ... unless” clause. deny Under the release into a community cústody pro formula, ... if’ provision sets forth the gram----” Crowder, 'In re 985 P.2d at agency may conditions under which the 944-45 (holding inmate had interest Otherwise, deny release. it it. grant must grant denial of custody distinguishable This is from state statutes placement upon earning early release, provide “may a decisionmaker but that the minimum level of process due ’ ... grant if certain criteria are met. Un-. required protect pro interest was formula, “may grant der the ... if’ vided). Dutcher, See also In re 60 P.3d at agency may only grant if release the rele- (“An 636 inmate’s interest in his earned met, it required vant criteria are is not but early limited, release credits is á pro but Therefore, “may so.12 under the tected, liberty interest.”); In Liptrap, do. re formula, ... if’ as under a 463, “shall Wash.App. 1227, 127 1231 (2005) clause, (same).13 grant ... unless” an expee- there is reason, routinely For this recognized courts have .the held interest the Wash- "may grant ington that the if" Appeals merely formulation does procedural, Court of See, substantive, e.g., create interest. Barna rather Op. than in nature. Cone. Travis, 169, (2d Cir.2001) (“In Dutcher, v. 239 F.3d 171 Liptrap at 672 both (New statute); Mickelson, parole York Dace v. holding court’s concerned 574, (8th 1986) (South 797 F.2d 577 Cir. Da procedural right the inmate's pro- to have his statute); Moore, parole kota Gale v. merits, 763 F.2d posal considered on the rather than a 341, (8th Cir.1985) (Missouri parole 343 stat right transfer."). substantive To the con- ute); Corrothers, Parker v. F.2d 656- trary, explained; court "An (8th (Arkansas 1984) statute); parole Cir. inmate’s his earned Latimer, (10th v. Dock 729 F.2d limited, protected, liberty credits is a but in- 1984) (Utah statute); parole Irving Cir. Likewise, department's compli- terest. (5th Cir.1984) Thigpen, 732 F.2d requirements ance affecting with of statutes statute); (Mississippi parole Candelaria v. protected liberty his release is a interest.” Griffin, (10th Cir.1981) 641 F.2d 869-70 Liptrap, (quoting See In re 111 P.3d at 1231 (New statute); parole Mexico Williams v. 636) added). re (emphasis 60 P.3d at Briscoe, (5th Cir.1981) F.2d clear, language As this makes (Texas statute); parole Schuemann v. Colo. recognizes court interest in both the Parole, State Bd. Adult 624 F.2d 174 n. substantive to earned (10th Cir.1980); Hammock, Boothe v. (here, in the form of transfer to (2d Cir.1979) (New parole F.2d York custody) procedural right and the distinct to statute); Chestnut, Shirley v. 603 F.2d comply requirements have the' DOC with the (10th Cir.1979) (Oklahoma parole governing of the statutes such release. statute); Wagner Gilligan, 609 F.2d suggests The concurrence next that "the (6th Cir.1979) (Ohio statute). parole Appeals using ‘liberty Court of is 13. The concurrence broadly contends that we read interest’ more than far the term of "liberty jurisprudence too much into the use of the word art of federal Due Process argues encompassing any right cognizable interest” these cases. It first that at law in- Department’s policy violated statutory that Moreover, interpreting the court ex- rights, into com- early process release mates’ due governing scheme Appeals Court of in subsec- custody, provisions the state munity plained “[t]he that the manda- [9.94A.728(2) (c) (d), discussed out spell[ on occasions and ] ] has two tions In an the law. of tory nature and plan in a release required what is chal- to Carver similarly situated inmate stat[ej department may why the reasons plan to review his failure the DOC’s lenged (emphasis at 1232 a release Id. deny [.]” custody pursu- into for release added). court Accordingly, Liptrap categori- of policy Department’s to the ant department “the [does found that of those offenders plans cally denying to decide wheth- unlimited discretion have] preda- sexually violent to be appeared who an offender er and to consider when com- for civil were referred tors and who custody.” Id. Rath- transfer to The court P.3d at 635-36. mitment. 60 legiti- er, failure to “state[ ] the DOC’s policy violated the DOC’s held that of a release for the denial mate reason” “the mandate, that explaining statutory concluded, “deprived [the court plan, the offenders require to compels DOC statute early release credits of earned inmates] plan, requires a release develop (em- Id. at 1234 process.” violation of due community custody eligi- its DOC to base added).14 holding This is consistent phasis the release on the merits bility decisions Washington law our conclusion that with added). (emphasis at 638 plan.” 60 P.3d of a release the DOC’s denial requires that a decision requiring that Our conclusion reason,” “legitimate plan be based on a plan permits of a release on the merits are enumerated in and that such reasons only if it plan such Department 9.94A.728(2)(d). section listed in statutory criteria finds one of the sum, In we hold 9.94A.728(2)(d) by the is bolstered section statutory governing scheme of the statute interpretation state court’s who community custody of those inmates Liptrap, In inmates Liptrap. In re time creates a have earned refusing challenged policy the DOC’s protected under the liberty interest that is offenders until plans of sex review release of the Fourteenth Due Process Clause had evaluation psychological a forensic step next is deter- finding Amendment.15 Our Id. at 1229. completed. been proposed near plan residence is bearing one receives because on whether with some "legitimate statutory young as a rea- children Op. at 672-73 n. 3. That liberty.” Cone. plan disapproving a release for a sex son for the federal Due Pro- Washington court had Liptrap, at 1233 & offender.” In re ambiguous not an cess Clause —and 72.09.340(3)). (citing n. 6 mind when recognized at law-in otherwise Wash. Rev. Code is, supra, 9.94A.728(2) in footnote 11 again, For the reasons set forth evi- analyzing section specific example provision simply a plain language of its decision by the denced general bases for denial set forth in the more Liptrap, the court framed its discus- where 9.94A.728(2)(d). in the familiar sion of the interest at stake jurisprudence. process of federal due terms holding acknowledge our is incon- 15. We (explain- Liptrap, 111 P.3d at 1231 See In re " dispositions non-precedential sistent with two protects against ing process '[d]ue court, unpublished deci- well as the of this life, property' deprivation liberty, district courts that sions of several federal finding in his that” inmate's “[a]n question. Dutcher v. addressed this limited, credits is a but earned Lehman, Fed.Appx. WL interest”). protected, Lehman, (9th Cir.2007); Chaney v. (9th Fed.Appx. 2007 WL 870358 Liptrap specifically noted section 14. The court Lehman, Cir.2007); C04- Duncan v. No. provision denial of a release 72.09.340's for procedures mine “whether the attendant not clearly violate established statutory or upon deprivation liberty rights th[e] Carver’s constitutional of which [of a reasonable constitutionally person interest] were would sufficientf.]” have known.” Harlow v. 460, 109 Thompson, Fitzgerald, 800, 818, 490 U.S. at S.Ct. 1904. 457 U.S. 102 S.Ct. (1982). plan Carver’s was denied under a 73 L.Ed.2d 396 qualified Our categorical policy provided immunity that him with analysis proceeds in parts. two all; First, process simply rejected no it all we consider whether “the al facts who, Carver, plans of ap leged offenders like that show [Lehman’s] conduct violat peared fall Galen, under the definition of a a ed constitutional right[.]” sexually predator violent Katz, who were F.3d at (citing Saucier v. According 200-02, referred for civil commitment. (2001)).

ly, complete we conclude that the absence L.Ed.2d 272 For the reasons dis procedures deprived above, Carver of his liber cussed we question answer this ty interest in transfer to Second, custo the affirmative. we ask if “the dy process without due of law. alleged [Lehman is] to have violated clearly established such [was] that a rea Qualified Immunity

B. sonable would [official] have understood Qualified immunity protects that he violating right[.]” was that Id. We “government liability officials ... from for conclude that the question answer damages civil insofar as their conduct does is no. 5633RBL, (W.D.Wash. Allen, Supreme 2006 WL explained Court "the 2, 2006); Lehman, June Garcia v. No. C04- presence general or broad release criteria 5893FDB, (W.D.Wash. 2006 WL 827957 delegating significant'discretion to the deci- Mar.23, 2006). dispositions The district court incompatible sionmaker .... is not with-the and, way binding are in no for the reasons set Allen, liberty existence aof interest.” above, they forth we do believe reach Two, added). (emphasis U.S. at 375-76 ac- the correct result. knowledging state courts contrary dispositions of our own court interest, pan- have found a limited give pause, although panel do us when the assuming el concluded that even the exis- deliberately involved chooses to make its interest, process tence of such an de- non-precedential views we would be disre- Chaney plaintiffs hearing— manded —a garding duty independent our to exercise our required. was not 2007 WL at *2.

judgment if we treated those views as con- case, present argues only In the Carver trolling on the court. See 36-3. Cir. R. 9th process he was entitled to some form of be- Still we examine the less formal views of our plan summarily rejected, fore his release was deference, colleagues with some while bear- hearing. not that he was entitled to a full ing in mind the ultimate status our col- Thus, Chaney holding the alternative is in no leagues have chosen to have us and all future way inconsistent with the conclusion we panels Chaney, afford those In views. one of Dutcher, reach here. the second of the non-precedential dispositions two filed non-precedential dispositions, panel’s two colleagues, Washington our held inmates be- conclusion that law does not cre- yond they the date that were or would be ate release into eligible for release into appealed community placement supported only by the denial was of their release without a prior hearing. 2007 WL at *1. In af- citation to 2007 WL Greenholtz. firming the district court’s dismissal of their at *1. For the reasons set forth claim, Chaney panel above, section 1983 reached supports we believe that Greenholtz One, holdings. two alternative with the existence of a interest. The cursory observation that ”[t]he panel’s provide any Dutcher failure to reason- grants significant degree statute of discre- ing disposition impossible in its makes it DOC[,]” panel tion to the found that state us to address the merits of its conclusion to law did not create a interest in release contrary. However, community custody. into Id. Amendment. was denied his due determining right whether the Carver right officials’ clearly- process by the state refusal violated was been alleged to have approve plan release without review- “in his established, right consider the must we time, however, case, ing it on merits. At the not its context light specific of the process right arising the due from the proposition!.]” Sauci general as a broad “ interest was not er, 201, existence his 121 S.Ct. 2151. ‘The at U.S. sufficiently clearly established meet the sufficiently right must of the contours therefore Saucier standard. We affirm un clear reasonable official would that a the district court’s determination that Leh- doing he is violates that what derstand ” immunity. Saucier, qualified man is entitled to 533 U.S. at that right.’ v. Creighton, Anderson (quoting S.Ct. 2151 AFFIRMED. 107 S.Ct. 483 U.S. (1987)). Here, because sec

L.Ed.2d SMITH, JR., Judge, MILAN D. Circuit 9.94A.728(2)(d)does not use the more tion concurring judgment: in the “shall,” mandatory term a reason common respectfully ways majori- I with the part might official not have able correctional ty. I do not believe that State statutory that the understood law creates a Fourteenth Amendment lib- early scheme a interest created erty early into interest commu- custody. Certain release into nity majority erroneously custody. The at ly, highly was question debatable interest, conjures statutory liberty a pro- required was to act. the time that Lehman Clause, tected the Due Process out of denied before the Wash plan was Carver’s 9.94A.728(2) only by Wash. Rev.Code Appeals had its ington issued Court confusing “may” and “shall” read- Liptrap, which decisions in Butcher “only “if’ to if.” ing mean not does limited liber clarified that law, ty under state but that interest exist I. release into DOC’s discretion preeminent statutory “The canon of con- rejection limited community custody is requires presume struction us to that the of a plan legitimate on the basis legislature what it says a statute means set forth in section statutory criteria says and means in a what it statute there.” 9.94A.728(2)(d). States, BedRoc Ltd. v. United Because we conclude 176, 183, 158 L.Ed.2d 338 sufficiently issue at the was clear here (2004) (internal marks quotation and alter- giving time of facts rise to this case omitted). using ations Far from “the more such a reasonable official un- would mandatory language traditional formula denying a release plan derstand that with- statutes,” Maj. used other statutory out providing legitimate reason 9.94A.728(2)(d) Op. at instead violate process, that denial would due “may permissive uses traditional if’ grant we court’s qual- affirm the district language in statutes that no used create ified immunity. Had the interest. Legislature State meant to write statute III. Conclusion DOC, limiting the discretion of the it could easily so. Washington state law creates a said Section 9.94A.728(2)(d) “may that the DOC an inmate’s release into states protected deny” that is under convicted sex offenders transfer “if’ it makes custody Process Clause of the Fourteenth certain Due

671 pro- determinations about the offender’s is some reason to believe legisla- that the posed plan. says nothing It about ture intended that the enumeration be ex- granting request, the criteria for let clusive—or at very least in the absence detailing alone circumstances under which of evidence to the contrary. “The maxim the DOC must do so. expressio unius est exclusio alterius is an construction, aid to not a rule of majority legislature’s

The overcomes the law. It failure can specify any granting criteria for never override clear contrary evi- a request holding that the determina- dences of [legislative] intent.” Neuberger 9.94A.728(2)(d) tions mentioned section Comm’r, 83, 88, 97, 311 U.S. 61 S.Ct. 85 only are the conditions on which the DOC (1940); L.Ed. 58 see also Wash. State La- transfer, may deny and therefore requir- Reed, bor 48, Council v. 149 Wash.2d ing grant Maj. that it in all other cases. (2003) (“[T]he rule of ex- P.3d Op. at 666-67. One searches the statute pressio unius est exclusio alterius d[oes] vain, however, any for indication those not necessarily apply without considering are determinations the exclusive reasons other factors which may persuade the “may deny” that the DOC transfer. The legislative court that intent oppo- was the 9.94A.728(2)(d) criteria of section are suffi- site of statutory what the construction rule transfer, cient to sex offenders but require.”). case, however, would In this necessary. are not legislature Had the siten-, majority technique uses the sub necessary, wished to make them it would tio to override the unambiguously discre- if,” “if’ “only have used not but or some tionary language in the (“may”). statute equivalent.1 semantic The language of Wash. Rev.Code section cases, In some a court read the 9.94A.728(2)(d)makes it clear that pro- word “if’ “only to mean if.” The canon of purpose vision’s is to expand the discretion construction expressio unius est exclusio of the DOC. This makes the majority’s that, alterius stands for the proposition implicit expressio unius reading especially legislature when the provides a list of re- items, inappropriate. The lated statute states: “The impliedly it means to exclude department’s authority other items. See Norman 2A under this section Singer, J. independent any Sutherland is Statutory Statutes and Con- court-ordered condi- (7th Ed.2007). struction 47:23 tion of sentence or statutory provision Such re- obtains, however, result only where there garding conditions for magic It lary-it goes right is true that there are no words to the heart of whether the necessary legislature 9.94A.728(2)(d) for the to create a criteria of section are neces- Allen, transfer, interest. Bd. Pardons v. 482 U.S. sary or sufficient for conditions 369, 378, 96 L.Ed.2d 303 mandatory therefore whether or (1987). any ways There are number of other entirely discretionary. “May ... if” legislature might accomplished effectively would be identical to "shall ... majority result reads into section unless”; "may Maj. Op. if” is not. Contra 9.94A.728(2)(d). might It have said the DOC terms, at majority 666-67. In formal grant "shall” release "unless” the criteria are fallacy denying commits the the anteced- not; they met might or "if” are it have said P, Q,” premise ent: from the "if then it does "may” deny "only that it if” the crite- Q.” not follow from "not P” that "not met, "except they ria are or event” Aldisert, generally Ruggero Logic J. Law- not; might up it have come with another (3d ed.1997); Waller, yers 160-61 Bruce N. substantially formulation that means the same (5th ed.2005); Thinking Critical Wik- thing. antecedent, ipedia, Denying the available if,” "only http://en.wikipedia.org/wiki/Denying_the_ distinction between "if” and however, (Last 2008). quibble is not a mere May over vocabu- antecedent accessed (2005); In re Rev. community placement.” Wash. (2002); 9.94A.728(2)(d). Wash.App. language That Code Crowder, 598, 985 P.2d Wash.App. re function makes (1999)). 944, majority the What 9.94A.728(2)(d) to to apparent: preserve “liberty that state omits is the nature of to the the discretion DOC Dutcher, Liptrap interest.” In both it makes one the four the that of event holding Washington the court’s concerned determinations, notwithstanding what oth- right to procedural the inmate’s have might require. otherwise er sources legal merits, on the proposal his considered statute, of the how- majority’s reading The right to rather than a substantive transf head, meaning on its ever, that turns 1234; Dutcher, at Liptrap, 111 P.3d provision er2 non obstante writ- transmuting a based, in large P.3d at was 60 638. This into expand discretion preserve ten to mandatory part, only truly language on the limiting it. one the effect of with 9.94A.728(2), mandating found require the the of DOC “shall II. plan.” to a propose fender Wash. misreading I concur with this might still 9.94A.728(2)(c); Rev.Code see 9.94A.728(2)(d),however, if the of section Unfortunately, “expecta 60 P.3d 638. similarly had mis- courts Washington State not, receiving process tion of without Bergen Spauld- the statute. See read more, by a liberty protected the (9th Cir.1989) 719, 721 ing, F.2d 881 Due of the Fourteenth Process Clause” (“Whether provides such a statute state Wakinekona, Amendment. Olim v. 461 depends on the protectable entitlement 238, 12, 250-51 n. 75 statute, as language structure (1983); In re L.Ed.2d 813 see also Cash interpretation well courts’ as the state of (1994) aw, 12 123 866 P.2d Wash.2d ”) (emphasis add- scope the the interest. (“The Supreme Court and United States ed). But, notwithstanding majority’s the clearly the Ninth held that Circuit they precedent, of state characterization liberty procedural not create laws do inter have not. ests; only laws can substantive create interests.”). from majority quotes language these State law appellate courts permits prisoners challenge intermediate to DOC viola parole grounds a “limited interest” tions of but it recognizing procedures, law, Maj. Op. right at 667 this to (quoting process state in the release. has, Wash.App. 463, re federal While the DOC Liptrap, 127 P.3d constitution.3 Crowder, pellate 2. Id. at 13-14. predated decided in the Procedure 16.4. Not- Cashaw, withstanding holding supposedly Dutcher 2002 enactment of the statute cre- "protected refers an inmate’s inter- ating interest at issue in this case. compliance department’s est” in with & n. "the Liptrap, P.3d at 1232 3. release,” requirements affecting his of statute Cashaw, citing proposition. Cashaw itself for the 3. 123 Wash.2d Cashaw, (citing P.3d at & n. 3 866 P.2d at (1994) ("The Appeals Court of correct was concluding Board had violated its own 11). notes, "recognizes procedural parolability hearings.... majority As Dutcher rules Appeals right Court of erred was in interest in both substantive Where the procedur- step concluding taking additional release ... and the distinct right comply magnitude.”). constitutional al was of have the DOC with the violation requirements governing held that the of the statutes such Cashaw instead inmate's (emphasis challenge procedural Maj. Op. release.” at 667-68 n. 13 his restraint because of added). holding Ap- grounded in Because Dutcher s concerns error is Rule of therefore, imacy” only by no “discretion to decide whether its enumeration in section an or when to consider offender for trans 9.94A.728(2)(d). Indeed, every there is in- community custody,” Liptrap, fer contrary: Crowder, dication to the it was added), (emphasis at 1232 Washing P.3d predating decision the enactment of sec- given ton’s courts have no indication that 9.94A.728(2)(d) tion years, three substantially its discretion is limited in first “legitimate mentioned reasons” for how it makes that consideration. denial of community custody. 985 P.2d at None majority cases cited Moreover, Crowder specified pe- implies criteria in section titioner’s “own suggested withdrawal of a 9.94A.728(2)(d) are the exclusive reasons placement plan” among “legitimate the may deny that the DOC transfer to com- reasons” denying transfer, him id.—a munity custody. Liptrap notes that reason certainly which legitimate, seems why statute reasons the depart- “stat[es] appears but nowhere in may deny plan,” ment a release 111 P.3d 9.94A.728(2)(d). Neither Dutcher nor Lip- at but those kept “reasons” are in trap hint that subsequent codification of they just the indefinite: “reasons”— certain legitimate reasons has somehow reasons, not the let alone the only rea- range narrowed the of legitimacy, and no Similarly, sons—for denial. Dutcher held Washington provided case has general ... requires “the statute DOC to base definition for what makes a reason “legiti- community custody eligibility its decisions mate,” which could “any be as broad as plan,” on the merits of the release proscribed reason not otherwise by law.” but does not imply that section “right” This ill-defined only transfer 9.94A.728(2)(d)provides by the sole rubric “legitimate” absence of some reason to which those “merits” are to be evaluated. deny hardly is produce sufficient to Washington courts implied only “legitimate expectation of release” re- one limit on the substance of the DOC’s quired of a protected liberty interest under exercise of discretion: its reasons for deni- Greenholtz v. Inmates the Nebraska “legitimate.” al be contrary must Id. But of 1, 12, Penal and majority’s assertions, Complex, to the Gorr. there no is may (1979). indication that a reason acquire “legit- 99 S.Ct. 60 L.Ed.2d 668 latter, only procedural right, descrip- precedent, its Court is that the Court only tion of the former can be described as Appeals using "liberty is interest” far more dicta, impreci- dicta. As with much it risks broadly the term than of art of federal Due sion, term, interest,” using "liberty same jurisprudence majority Process con- to refer both to the substantive interest templates, encompassing any right cognizable transfer, conceivably which could be a Four- bearing at law with some on whether one interest,” "liberty teenth and the Amendment liberty. reading possible receives No other is procedural right compliance regula- with light precedent that has held that a tion, which cannot. If a chef announces that process is no more a Fourteenth Amend- "fruit,” the dessert will consist of but in the "liberty herring ment interest” than a very "herring” "quartz” next breath lists Olim, fruit. 461 U.S. at 250-51 n. “fruit,” might forgiv- as other kinds one 1741; Cashaw, S.Ct. P.2d at 12. beginning en ingre- to doubt that the dish’s necessarily plucked dients have been off a DOC, reading, 4. Under such a for exam- tree. ple, could not to someone on Notwithstanding its use of traditional Due religion. account of his race or Such a condi- terminology concepts, Process Clause discretion, therefore, tion limit the DOC's but reading charitable scarcely enough give squarely any “expecta- not rise to foreclosed both Unit- ed Supreme States and State tion” of transfer. short, law, no provides case the text and disregard for us reason 9.94A.728(2). of section purpose

manifest * * * above, I would forth set For the reasons panels and two courts district join the two n. court, Maj. Op. at 668 see of this 9.94A.728(2)does that section have all held protected liberty interest create a the Fourteenth clause of Due Process not reach therefore I would Amendment. “right” announced whether the issue of “clearly today established.” was UNION, TRANSPORTATION UNITED Adjustment Committee General Fitzgerald, GO-386, General J.D. Chairman, Plaintiff-Appellant, SANTA NORTHERN BURLINGTON COMPANY FE RAILROAD Switching Company, Defen- Longview dants-Appellees.

No. 07-35066. Appeals, Court United States Ninth Circuit. April Argued and Submitted 9, 2008. Filed June

Case Details

Case Name: Carver v. Lehman

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 9, 2008

Citation: 528 F.3d 659

Docket Number: 06-35176

Court Abbreviation: 9th Cir.