Carver v. Lehman, 06-35176.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation550 F.3d 883
Docket NumberNo. 06-35176.,06-35176.
PartiesJoseph CARVER, Plaintiff-Appellant, v. Joseph LEHMAN; Kimberly Acker; Victoria Roberts; Six to be Named Defendants, Defendants-Appellees.
Decision Date22 December 2008

Rob McKenna, Sara J. Olson, and Gregory J. Rosen, Office of the Washington Attorney General, Criminal Justice Division, Olympia, WA, for the defendants-appellees.

Tyler A. Baker, Todd Gregorian, and Heather N. Mewes, Fenwick & West, LLP, Mountain View, CA, for the plaintiff-appellant.

Rob McKenna, Sara J. Olson, and Gregory J. Rosen, Office of the Washington Attorney General, Criminal Justice Division, Olympia, WA, for the defendants-appellees.


Opinion by Judge MILAN D. SMITH, JR.; Concurrence by Judge REINHARDT.

MILAN D. SMITH, JR., Circuit Judge:

This case presents the question whether a Washington state law providing for convicted sex offenders' early release into community custody creates a liberty interest that is protected under the Due Process Clause of the Fourteenth Amendment. We hold that it does not. We therefore affirm the decision of the district court denying Carver relief in this civil rights action.

Factual and Procedural Background

In August 1999, Joseph Dale Carver, then 20 years old, pled guilty to child molestation in the third degree. This conviction followed two prior convictions for child molestation in the first degree and a conviction for third-degree assault. Carver committed his first sex offense at age 14. He was sentenced to fifty-four months of confinement in the custody of the Washington State Department of Corrections ("DOC") for his 1999 conviction. The brief record on appeal indicates Carver committed fifteen disciplinary infractions while incarcerated, including sexual harassment of a prison staff member.

Washington Revised Code § 9.94A.728(1)(b)(ii)(B)(I) prohibits early release for those convicted of sex offenses. However, section 9.94A.728(2)(a) provides that sex offenders may become eligible for transfer to community custody in lieu of early release.1 Carver was sentenced to a consecutive thirty-six month period of community custody to begin on his adjusted release date.2 Carver's behavior as a prisoner resulted in an adjusted release date of January 13, 2003.

Before an inmate is eligible for transfer to community custody, he must submit an acceptable "release plan." WASH. REV. CODE § 9.94A.728(2)(c). Carver submitted his proposed plan in March 2002. It was denied in April 2002, pursuant to a DOC policy then in effect which provided for the categorical denial of release plans of offenders, like Carver, whom the DOC determined "appeared to meet the definition of a sexually violent predator and who had been referred for Civil Commitment...." DOC Policy Directive 350.200 (May 4, 2001).3 As a result of the denial of his proposed release plan, Carver served his full term of confinement.

In September 2004, Carver filed a civil rights suit under 42 U.S.C. § 1983, asserting that DOC officials denied him early release into community custody without affording him due process of law under the Fourteenth Amendment.4 The district court, adopting the report and recommendation of the magistrate judge, granted the DOC officials' motion for summary judgment on two principal grounds: first, that Washington law does not create a liberty interest in early release into community custody and, therefore, Carver did not have a due process right protected by the Fourteenth Amendment; and second, that even if such a right existed, Defendant Lehman was entitled to qualified immunity. Carver timely appealed.

Jurisdiction and Standard of Review

We have jurisdiction to review the district court's determination pursuant to 28 U.S.C. § 1291, and we review de novo its grant of summary judgment and finding of qualified immunity. See Mabe v. San Bernardino County, Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001); Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir.2007).


The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law...." U.S. Const. amend. XIV, § 1. Our analysis of due process claims proceeds in two steps. "The first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citation omitted).

"A liberty interest may arise from either of two sources: the due process clause itself or state law." Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986). Carver concedes that the Due Process Clause does not create a liberty interest in an inmate's "conditional release before the expiration of a valid sentence." Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Rather, he argues that Washington's statutory scheme governing early release into community custody "uses mandatory language, `creating a presumption that ... release will be granted' ... unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest." McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir.2002) (quoting Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100; citing Bd. of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987)). As in prior cases, our task here is to apply the well-established mandatory language rule governing state-created liberty interests set forth by the Supreme Court in Greenholtz and Allen to the Washington sex offender statutory scheme at issue.5 See, e.g., Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127-28 (9th Cir.2006) (holding that California law creates a liberty interest in parole); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.2003) (same); McQuillion, 306 F.3d at 901-902 (same); Bermudez v. Duenas, 936 F.2d 1064, 1065-66 (9th Cir.1991) (holding that Guam law creates a liberty interest in parole); Baumann v. Ariz. Dep't of Corr., 754 F.2d 841, 843-45 (9th Cir.1985) (holding that Arizona law does not create a liberty interest in custodial release); Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 469-70 (9th Cir.1989) (holding that Idaho law does not create a liberty interest in parole).

Washington law mandates that an individual convicted of a sex offense be sentenced to a term of community custody that "shall begin either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned release." WASH. REV. CODE § 9.94A.710(1). Unlike other inmates, then, a convicted sex offender who accrues "earned release time ... for good behavior and good performance" is not entitled to early release; rather, he is eligible for discretionary transfer into community custody at an earlier date if his proposed placement is appropriate. Id. § 9.94A.728(1), (2)(a). The law requires the DOC to develop a suitable program to effectuate the transfer to community custody of such inmates. See id. § 9.94A.728(1). As part of that program, the DOC must "require the offender to propose a release plan that includes an approved residence and living arrangement." Id. § 9.94A.728(2)(c). The law then describes how the DOC, in exercising its broad discretion, should evaluate such release plans:

The department may deny transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section if the department determines an offender's release plan, including proposed residence location and living arrangements, 1 may violate the conditions of the sentence or conditions of supervision, 2 place the offender at risk to violate the conditions of the sentence,3 place the offender at risk to reoffend, or 4 present a risk to victim safety or community safety. The department's authority under this section is independent of any court-ordered condition of sentence or statutory provision regarding conditions for community custody or community placement. ...

Id. § 9.94A.728(2)(d) (emphasis added).

In order to comply with the statute, the DOC promulgated Policy Directive 350.200. Under the version of this policy in force when Carver submitted his release plan, the DOC instructed that release plans of sex offenders be assessed to determine "the degree of risk for victims and potential victims of similar age or circumstances" and to ensure that, subject to certain exceptions, "sex offenders will not return to a residence where minor victim(s) or other children of similar age are present in the residence." DOC Policy Directive 350.200 (May 4, 2001). This Policy Directive specified that a residence proposed by an offender within a release plan could be denied if the proposed location would place the offender in violation of court-imposed conditions; at the likely risk to re-offend; or in close proximity to the minor victim(s), schools, child care centers, playgrounds, or other facilities where children of similar age and circumstances surrounding the conviction are present and who may be put at substantial risk of harm by the offender residing at that location.6 The DOC's policy also provided for the categorical denial of release plans "if the End of Sentence Review Committee has determined that the offender appears to meet the definition of a sexually violent predator and s/he has been referred for Civil Commitment...."7 This final provision, under which Carver's release plan was denied, was subsequently eliminated after the Washington Court of Appeals held that it violated the statutory requirement that all sex offenders "may become eligible" for community custody. See Du...

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  • Carver v. Lehman
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 22, 2008 Judge Reinhardt. ORDER AND AMENDED OPINION ORDER The opinion and concurrence filed on December 22, 2008, and appearing at 550 F.3d 883 (9th Cir.2008) are hereby amended. The amended opinion and concurrence are filed concurrently with this The petition for rehearing en banc filed January ......

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