Carver v. Lehman

• Decision Date: 09 June 2008
• Docket Number: No. 06-35176.,06-35176.
• Citation: 528 F.3d 659
• Parties: Joseph CARVER, Plaintiff-Appellant, v. Joseph LEHMAN; Kimberly Acker; Victoria Roberts; Six to be Named Defendants, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

528 F.3d 659

Joseph CARVER, Plaintiff-Appellant, v. Joseph LEHMAN; Kimberly Acker; Victoria Roberts; Six to be Named Defendants, Defendants-Appellees.

No. 06-35176.

United States Court of Appeals, Ninth Circuit.

Argued April 17, 2007.

Submitted April 28, 2008.

Filed June 9, 2008.

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

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

Appeal from the United States District Court for the Western District of Washington; Ronald B. Leighton, District Judge, Presiding, D.C.No. CV-04-05570-RBL.

Before: WARREN J. FERGUSON, STEPHEN REINHARDT, and MILAN D. SMITH, JR., Circuit Judges.

REINHARDT, Circuit Judge:

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

I. Factual and Procedural Background

In August 1999, Joseph Dale Carver pled guilty to child molestation in the third degree. He was sentenced to fifty-four months of confinement in the custody of the Washington State Department of Corrections ("DOC" or "Department"). Because he was a sex offender, state law also required that Carver be sentenced to a term of community custody to begin "either upon completion of the term of confinement or at such time as [he] is transferred to community custody in lieu of earned release[.]" See WASH. REV. CODE § 9.94A.710(1) (2006).¹ He was sentenced to a thirty-six-month period of community custody.

Carver's good behavior as a prisoner earned him an early release date of June 27, 2002.² Carver's sex offense, however precluded him from being released on his earned date. WASH. REV. CODE § 9.94A.728(2)(a) (2006). Rather, state law provides that sex offenders may become eligible for transfer to community custody in lieu of early release. Id. Eligibility for transfer to community custody is determined based on "release plan[s]" submitted by offenders. WASH. REV. CODE § 9.94A.728(2)(c). In March 2002, Carver submitted a release plan. His plan 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 Department determined "appear[ed] 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: one, 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 two, that even if such a right existed, Defendant Lehman was entitled to qualified immunity.⁵ Carver timely appealed. 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).

II. Discussion

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. "[T]he 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).

We have recognized that "[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 Nebraska Penal and Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Rather, he argues that Washington state's statutory scheme governing early release into community custody "uses mandatory language, `creat[ing] 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 statutory scheme at issue.⁶ See, e.g., Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127-28 (9th Cir.2006) (holding 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 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 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 Idaho law does not create a liberty interest in parole). We turn to that task now.

A. The Washington statutory scheme governing early release into community custody creates a constitutionally protected liberty interest.

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 transfer into community custody at an earlier date. WASH. REV. CODE § 9.94A.728(1), (2)(a). The law requires the DOC to develop a program to effectuate the transfer to community custody of such inmates. See WASH. REV. CODE § 9.94A.728(1). As part of that program, the Department must "require the offender to propose a release plan that includes an approved residence and living arrangement." WASH. REV. CODE § 9.94A.728(2)(c). The law then describes how the DOC should evaluate such release plans, stating:

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.

WASH. REV. CODE § 9.94A.728(2)(d) (emphasis added).⁷

In order to comply with the statutory mandate, 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, "[s]ex 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). The Policy Directive specified that a residence proposed by an offender within a release plan may be denied if the proposed location will 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), school, child care center, playground, 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.⁸ 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 . . . ."⁹ 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 In re Dutcher, 60 P.3d at 638-40. See also Letter from Anne L. Fiala, Assistant Deputy Secretary, Washington State Dep't of Corrections, to Office of Correctional...