Chavez v. Robinson

Decision Date08 September 2021
Docket NumberNo. 18-36083,18-36083
Citation12 F.4th 978
Parties Daniel Mike CHAVEZ, Plaintiff-Appellant, v. David R. ROBINSON ; Lisa Moore, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Gus Tupper (argued), Kara Gordon, and Eleanor Walker, Certified Law Students; Charles D. Weisselberg (argued) and William H.D. Fernholz, Supervising Attorneys; University of California School of Law, Berkeley, California; for Plaintiff-Appellant.

Beth A. Jones (argued), Certified Law Student; Gerald L. Warren (argued), Supervising Attorney; Law Office of Gerald L. Warren and Associates, Salem, Oregon; for Defendants-Appellees.

Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and Ivan L.R. Lemelle,* District Judge.

Partial Concurrence and Partial Dissent by Judge Berzon

IKUTA, Circuit Judge:

As a condition of his supervised release, Daniel Chavez was required to participate in a sex offender treatment program. When he refused to admit to the conduct underlying his conviction, a required part of his treatment, Chavez was discharged from the program and given a limited jail sanction, as permitted under regulations applicable to supervised releasees. Chavez brought a civil action under 42 U.S.C. § 1983 seeking damages for violations of his constitutional rights due to this sequence of events, but the district court dismissed his complaint.

We conclude that because Chavez did not make a statement that was used in a criminal proceeding, see Chavez v. Martinez , 538 U.S. 760, 770, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (plurality opinion), he may not bring a civil action against the government under § 1983 for a violation of his Fifth Amendment right against self-incrimination, and we affirm the district court's dismissal of this claim. We also affirm the dismissal of Chavez's claims that the government officials involved in this incident violated Chavez's Sixth Amendment right to counsel and his First Amendment right to bring a civil lawsuit against the government.

I

In May 2008, Daniel Chavez was indicted by an Oregon grand jury in connection with sexual misconduct involving minors under 14 years of age.1 Chavez claimed he was innocent of the charged offenses, and went to trial. In March 2009, the jury convicted Chavez of two counts of felony attempted sexual abuse in the first degree and two counts of misdemeanor private indecency. The court sentenced him to 18 months incarceration on one of the attempted sexual abuse counts, followed by 60 months post-prison supervision.2 As a condition of his supervised release, Chavez was required, among other things, to complete a sex offender treatment program.3

Chavez appealed his conviction. On appeal, he was represented by a lawyer from the state office of public defense services. Chavez argued that the trial court erred by admitting a physician's medical diagnosis that a child had been sexually abused, where that diagnosis was not based on physical evidence of abuse, because such evidence was more prejudicial than probative. See Or. Evid. Code, Rule 403 ; State v. Southard , 347 Or. 127, 218 P.3d 104, 133 (2009). Chavez also filed a supplemental brief pro se.

While his appeal was pending, Chavez finished his prison term and returned to Klamath County. Chavez's probation officer, Lisa Moore, was responsible for monitoring Chavez's compliance with probation and post-prison supervision. She directed Chavez to enroll in a sex offender treatment program provided by David Robinson and his company, Correctional Evaluation and Treatment, Inc. (CET).

Chavez appeared for the treatment program in June 2010. At the initial meeting, Robinson told him that as a condition of the program, Chavez had to admit to the conduct underlying each count of his conviction. Robinson also required Chavez to sign a form authorizing Robinson to disclose anything discussed in the program to Chavez's probation officer. Chavez asked for an opportunity to speak to an attorney about how the admissions might affect his pending appeal. Robinson told him that if he failed to admit to the criminal conduct underlying his conviction, he would go to jail.4

When Chavez refused to admit to the conduct underlying his counts of conviction, Robinson dismissed him from the sex offender treatment program and notified Moore. Moore initiated post-prison supervision sanction proceedings against Chavez for failing to comply with the conditions of his supervised release. At the proceedings, Chavez was found to be in violation of the sex offender treatment requirement of his post-prison supervision, and was given a jail sanction. The record is unclear regarding the length of the jail sanction. Chavez did not appeal the revocation of supervised release.

In August 2010, a similar sequence of events unfolded. Pursuant to Chavez's court-ordered sentence, Moore directed Chavez to enroll in Robinson's sex offender treatment program. Chavez again refused to admit to the conduct underlying his conviction, and Robinson again dismissed Chavez from the program and notified Moore. Moore then initiated a second round of post-prison supervision sanction proceedings against Chavez. At the proceedings, Chavez was found to be in violation of the sex offender treatment condition of his post-prison supervision and a second jail sanction was imposed against him. Again, the record is unclear as to the length of the jail sanction imposed. And again, Chavez did not appeal this revocation.

Following the imposition of the second sanction, Chavez's appellate counsel moved the state trial court to stay the post-prison supervision condition that Chavez enroll in a sex offender treatment program. The counsel argued that the state could not implement the treatment provision unless it gave Chavez complete immunity for any statements he made during his treatment. The counsel acknowledged that the Oregon deputy district attorney had previously represented that Chavez would be given such immunity, but there was nothing in the record that "b[ound] the district attorney's office to that pledge." Therefore, counsel argued, the court should require the state to make that commitment on the record in open court.

A few weeks later, the court denied the motion to stay treatment, but issued an order granting Chavez immunity from any statements or admission made about his conduct in the course of sex offender treatment, as well as any evidence gained as a result of such statements or admission, except in any proceedings related to homicide. In March 2011, Chavez filed a pro se civil rights complaint in federal court under 42 U.S.C. § 1983, alleging that Moore and Robinson violated his constitutional right not to incriminate himself. Robinson subsequently dismissed Chavez from the sex offender treatment program. Based on this dismissal, Moore revoked Chavez's supervised release and imposed a third jail sanction on Chavez for refusing to participate in or comply with the treatment program. Chavez did not appeal this revocation.

In February 2012, the Oregon Court of Appeals reversed Chavez's conviction and remanded for a new trial. State v. Chavez , 248 Or.App. 260, 272 P.3d 167, 167 (Or. 2012). The state conceded that the trial court made an evidentiary error in admitting a physician's diagnosis that Chavez had sexually abused the alleged victims, and the court agreed. Id. On remand, Chavez and the state entered into a plea agreement pursuant to which Chavez pleaded "no contest" to one count of felony attempted sexual abuse, and the state dismissed the other counts and recommended a sentence of time served with a requirement that Chavez register as a sex offender. The court accepted the plea in February 2014 and imposed the sex offender registration requirement.

In 2013, the district court issued an order to show cause why Chavez's civil rights complaint should not be dismissed for failure to prosecute. Chavez filed a document titled "Tort Claim with Damages" that named Robinson and the Oregon Board of Parole as defendants. The district court construed this document as an amended complaint and sua sponte dismissed the complaint with prejudice on the ground that the defendants were immune from damages. See 28 U.S.C. § 1915(e)(2)(B)(iii). It held that members of the Oregon Board of Parole were entitled to absolute immunity under the Eleventh Amendment. It also held that Robinson was entitled to qualified immunity because "[a] reasonable therapist in Robinson's place would not believe he was violating a convicted sex offender's civil rights by evaluating the offender in accordance with the legally mandated conditions of probation," and, to the extent Moore was still a defendant in the case, she was also entitled to qualified immunity.

Chavez appealed, and we reversed, holding that the district court erred in dismissing the complaint on qualified-immunity grounds given the procedural posture of the case at that time. Chavez v. Robinson , 817 F.3d 1162, 1165 (9th Cir. 2016). On remand, Chavez (now represented by pro bono counsel) filed a first amended complaint, alleging that Moore and Robinson violated his rights under the Fifth Amendment and the Fourteenth Amendment Due Process Clause. Both defendants moved to dismiss the claims against them. Moore contended, among other things, that she was entitled to absolute immunity as a parole officer, and Robinson argued he was not acting under color of state law, or, alternatively, that he was entitled to qualified immunity. The district court granted the motions to dismiss but allowed leave to amend.

Chavez filed a second amended complaint (the operative pleading here) in May 2018 (the SAC). The SAC alleged three different claims under § 1983 : (1) a violation of Chavez's Fifth and Fourteenth Amendment rights by requiring him to admit to the conduct underlying his convictions, (2) a violation of his Sixth Amendment right to counsel by retaliating against him for asserting his...

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