131 F.3d 818 (9th Cir. 1997), 95-16564, Neal v. Shimoda

Docket Nº:95-16564, 95-16790.
Citation:131 F.3d 818
Party Name:D.A.R. 14,953 A.J. NEAL, Plaintiff-Appellant, v. Edwin SHIMODA, Administrator, Correctional Facilities; Guy Hall, Administrator, Correctional Facilities; Richard Mello, Case Manager, Halawa Correctional Facility; Barry Coyne, Administrator, Sex Offender Treatment Program, Halawa Correctional Facility; John Does 1-10; Doe Entities 1-10; State of Haw
Case Date:December 11, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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131 F.3d 818 (9th Cir. 1997)

D.A.R. 14,953

A.J. NEAL, Plaintiff-Appellant,


Edwin SHIMODA, Administrator, Correctional Facilities; Guy

Hall, Administrator, Correctional Facilities; Richard

Mello, Case Manager, Halawa Correctional Facility; Barry

Coyne, Administrator, Sex Offender Treatment Program, Halawa

Correctional Facility; John Does 1-10; Doe Entities 1-10;

State of Hawaii, Defendants-Appellees.

Marshall MARTINEZ, Plaintiff-Appellant,


Shelley NOBRIGA, H.C.F., Classification Coordinator; George

Sumner, Dir., Dept. of Public Safety; Edwin Shimoda, Div.

Administrator of H.C.F.; John Smythe, Administrator for

H.C.F., in their individual and official capacities,


Nos. 95-16564, 95-16790.

United States Court of Appeals, Ninth Circuit

December 11, 1997

Argued and Submitted June 11, 1997.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Jeffrey A. Kaiser, Thomas M. Peterson, Cristina Martel Greenway, Lauren M. Michals, and Daniel P. Shenkman, Brobeck, Phleger & Harrison, San Francisco, California, for plaintiffs-appellants.

Girard D. Lau, Steven S. Michaels, and Margery S. Bronster, Assistant Attorneys General, Honolulu, Hawai'i, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii; Alan C. Kay, District Judge, Presiding. D.C. No. CV-94-00817-ACK, D.C. No. CV-93-00692-ACK.

Before: REINHARDT, T.G. NELSON and HAWKINS, Circuit Judges.

T.G. NELSON, Circuit Judge:

This case involves a state's attempt to classify and treat the sex offenders among its prison population in the hope of decreasing recidivism without violating the U.S. Constitution. A.J. Neal ("Neal") and Marshall Martinez ("Martinez") appeal the district court's orders granting summary judgment to the defendant prison administrators in their separate 42 U.S.C. § 1983 actions. Neal and Martinez allege that Hawaii's Sex Offender Treatment Program ("SOTP"), labeling them sex offenders and compelling their participation in the SOTP as a precondition to their eligibility for parole, violates the Ex Post Facto Clause, violates their due process rights, abridges their privilege against self-incrimination, and constitutes cruel and unusual punishment. We have jurisdiction under 28 U.S.C. § 1291. As to Martinez, we affirm the district court's order in its entirety. As to Neal, we affirm in part and reverse in part.


A. The Program

In 1992, the Hawaii legislature passed Act 164 ("the Act") authorizing the creation of the SOTP. The Act was premised on the legislature's conclusion that "sexual assault is a heinous crime committed by Offenders with

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deviant behavior patterns that cannot be controlled by incarceration alone." 1992 Haw. Sess. L. 304-05. The Act recognized that several agencies, including the Hawaii Parole Authority, had begun to coordinate their sex offender oversight functions in 1991.

As part of that interagency coordination effort, the Hawaii Parole Authority agreed to identify all sex offenders presently in custody. Under the SOTP, a "sex offender" is defined as someone "having been convicted, at any time, of any sex offense or [who] engaged in sexual misconduct during the course of an offense." Each inmate who is identified as a sex offender must undergo a twenty-five session psychoeducational treatment program in order to become eligible for parole. The SOTP Contract and Consent to Treat form, which must be completed and signed prior to admission to the program, requires the inmate to agree with the following statement: "I admit that I committed the offense(s) charged against me, and I agree to take full responsibility for my sexual behaviors." The contract further informs the inmate that "participation in the [SOTP] is required by the Hawaii Paroling Authority as a pre-condition for parole release." Inmates who are not able to participate in the program because of a lack of space will be considered for parole on a case-by-case basis.

B.A.J. Neal

On June 13, 1990, Neal was indicted for robbery, two counts of kidnapping, three counts of sexual assault in the first degree, terroristic threatening, and attempted murder. Those charges stemmed from a two-day period in which Neal robbed the victim, kidnapped him, and allegedly forced him to perform sexual acts with a juvenile. The indictment further alleged that Neal himself sexually assaulted the victim. He was also indicted for kidnapping a second victim by forcing her into the back of a car where he threatened to kill her. He stole her jewelry and allegedly sexually assaulted her as well.

In October 1993, Neal and the State entered into a plea agreement in exchange for the dismissal of the sex offense charges. The plea agreement provided that Neal would serve a twenty-five-year sentence with a six-year minimum term. In December 1994, he was sentenced to a term of six to twenty-five years in prison. Because he was afforded credit for time served, he became eligible for parole on August 5, 1996.

Following his assignment to the Department of Public Safety for an initial custody classification and facility placement, he was evaluated under the guidelines set forth in the department's Policies and Procedures Manual, which includes the SOTP's definition of "sex offender." Because Neal's indictment and presentence investigation report included allegations that he had "engaged in sexual misconduct during the course of" his crimes, even though the sexual offenses had been dismissed, he was classified as a "sex offender" and assigned a medium security classification in February 1994. On May 25, 1994, Neal sent a letter to Dr. Barry Coyne, administrator of the SOTP, stating that he was not a convicted sex offender and asking that the "defamatory and degrading" label of sex offender be removed from his classification.

In his June 3, 1994, response, Coyne stated that he was authorized by statute "to identify all offenders in ... custody who would benefit from sex offender treatment." He wrote that he and his staff had examined Neal's records and had determined that he would benefit from sex offender treatment. Coyne noted that this determination was "clinical, not judicial," and that participation in the SOTP was voluntary, but that Coyne would "continue to identify [Neal] as a sex offender" and would "continue to recommend" that he receive treatment.

Over the next several months, Neal continued to correspond with Coyne, consistently asking that the sex offender label be removed. Shortly before this lawsuit began, Neal was transferred to a minimum security facility, albeit on a different island from the one on which his family lived. Neal has never participated in the SOTP and has refused to sign and complete the SOTP Contract and Consent to Treat form.

C. Marshall Martinez

In 1984, Martinez was convicted of kidnapping and attempted rape stemming from an

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incident which took place on November 17, 1983. Martinez apparently chose his victim at random, forcing her into an area of bushes where he threatened to rape and kill her. During the confrontation, a passerby came upon the scene, pulled Martinez away from the victim, and helped her escape. According to a report from the Hawaii Department of Corrections, Martinez does not deny the charges. He stated that he attempted the rape with the intention of getting caught because he did not have anything to live for.

Martinez was sentenced to a term of eighteen years to life in prison. His sentence was later reduced, making him eligible for parole in November 1998. Prior to this conviction, he had been convicted of rape in 1977 as well as rape and attempted sexual assault in 1979 in Arizona.

In 1993, Martinez was classified as a sex offender according to the SOTP criteria. He claims that the "sex offender" label, in addition to affecting his eligibility for parole, also ensures that he can never be transferred to minimum custody status. Like Neal, Martinez has refused to sign and complete the SOTP Contract and Consent to Treat form, and thus has never participated in the SOTP.

D. The Lawsuits

Neal and Martinez each brought separate § 1983 actions against prison officials and administrators of the SOTP on the grounds that labeling them sex offenders based upon a policy enacted after their criminal convictions violated their constitutional rights under the Due Process and Ex Post Facto Clauses of the Fourteenth Amendment. They further allege that by forcing them to admit their guilt to sexual offenses, the SOTP violated their Fifth Amendment privilege against self-incrimination and constituted cruel and unusual punishment in violation of the Eighth Amendment. 1

The district court granted summary judgment to the defendants in both actions. On July 26, 1995, the district court granted summary judgment to the defendants in Martinez's action in an unpublished order. On July 27, 1995, the district court published its summary judgment decision in Neal's action in Neal v. Shimoda, 905 F.Supp. 813 (D.Haw.1995). 2 Because they raise substantially the same issues with regard to Hawaii's SOTP, the two cases were consolidated for purposes of this appeal.


We review the district court's grant of summary judgment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). We must determine, viewing the evidence in the light most favorable to Neal and Martinez, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. Constitutional issues are reviewed de novo. United States v. Wunsch, 84 F.3d 1110, 1114 (9th Cir.1996). We also review de novo a district court's conclusions on questions of law and on mixed questions of law and fact that implicate constitutional rights. American-Arab Anti-Discrimination Comm. v. Reno, 70...

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