Ferry v. Doohan, Civil No. 3:18-cv-001891-HZ
| Decision Date | 31 May 2020 |
| Docket Number | Civil No. 3:18-cv-001891-HZ |
| Parties | RICHARD FERRY, Plaintiff, v. KEVIN DOOHAN, Washington County Community Corrections (WCCC) Post-Prison Supervision Officer (PPO); CASSANDRA PETERSON, WCCO PPO; BROOKE VICE, WCCO PPO; JOE SIMICH, WCCO, Assistant Director; and JOHN AND JANE DOES 1-20, Defendants. |
| Court | U.S. District Court — District of Oregon |
Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983 pro se. Currently before the Court is Defendants' Motion to Dismiss Pursuant to FRCP 12(b)(6) (ECF No. 26).1 For the reasons that follow, the Court GRANTS Defendants' Motion to Dismiss Plaintiff's Complaint.
Plaintiff is currently on post-prison supervision ("PPS") from a Washington County Circuit Court conviction on charges of Sexual Abuse in the First and Third Degree. On August 8, 2016, the Oregon Board of Parole and Post-Prison Supervision (the "Board") issued an Order mandating the conditions of Plaintiff's supervised release. The Board's Order includes a standard set of supervision conditions referred to as "Sex Offender Package A," as required by Or. Rev. Stat. § 144.102(4)(b). The supervision conditions include requirements that plaintiff undergo polygraph testing to assist in treatment and to obtain information for risk management, and to participate in sex offender treatment. The supervision conditions also prohibit Plaintiff from having any contact with minors without prior written approval.
Plaintiff's Complaint alleges Defendants violated his rights in enforcing the supervision conditions of his post-prison supervision. First, Plaintiff alleges Defendants violated his freedom of association rights under the First and Fourteenth Amendments by denying Plaintiff "familial association." Second, Plaintiff alleges Defendants compelled him to undergo a polygraph test, in violation of his Fifth and Fourteenth Amendment rights against self-incrimination.
In his third claim, Plaintiff alleges Defendants retaliated against Plaintiff for exercising his right to redress grievances as guaranteed under the First and Fourteenth Amendments, for asserting his right to remain silent under the Fifth and Fourteenth Amendments, for asserting his right to privacy under the First, Ninth, and Fourteenth Amendments, and for asserting his right to free exercise of religion under the First and Fourteenth Amendments. Plaintiff alleges Defendants retaliated against him as follows: (1) by requiring Plaintiff to return to sex offender treatment despite being informed that he successfully completed it; (2) by requiring him to attend religiousactivities only at a state-sanctioned church and prohibiting him from attending a church of his own choosing; (3) by requiring Plaintiff to sign an Release of Information for access to his privileged medical and mental health records; and (4) by prohibiting Plaintiff from exercising his Fifth Amendment right to refuse to answer questions during a polygraph examination.
Plaintiff's fourth, fifth, sixth, and seventh claims allege violation of his right to religious freedom and freedom of association. Plaintiff alleges Defendants prohibited him from attending mass at a Catholic Church and instead informed him he can only attend church services at a specified non-denominational church in violation of Plaintiff's First and Fourteenth Amendment rights.
Finally, Plaintiff's eighth claim alleges Defendants violated his right to privacy under the First, Ninth, and Fourteenth Amendments by directing Plaintiff to sign a Release of Information for Plaintiff's privileged and confidential medical and mental health records.
Defendants move to dismiss Plaintiff's Complaint for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure on several bases. In response to Defendants' motion, Plaintiff filed a Motion for Partial Summary Judgment addressing only his claim that Defendants deprived Plaintiff of his right to familial association. Plaintiff does not address his remaining claims for relief.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Am. Family Ass'n, Inc. v. City & Cnty. of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). To survive a motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[,]" meaning "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). In other words, a complaint must contain "well-pleaded facts" that "permit the court to infer more than the mere possibility of misconduct[.]" Id. at 679.
The court need not accept conclusory allegations as truthful. See Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) () (internal quotation marks, citation, and alterations omitted). A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the "grounds" of his "entitlement to relief" with nothing "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]" Id. (citations and footnote omitted).When considering a Rule 12(b)(6) motion, a court generally limits review to thecontents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), amended by 275 F.3d 1187 (9th Cir. 2001). A court may, however, "consider certain materials documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
Courts must liberally construe pro se pleadings. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Additionally, a court cannot dismiss a pro se complaint without first explaining to the plaintiff the deficiencies of the complaint and providing an opportunity to amend. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Dismissal of a pro se complaint without leave to amend is proper only if it is clear that the deficiencies of the complaint could not be cured by amendment. Lucas v. Department of Corrections, 66 F.3d 245, 248 (9th Cir. 1995).
Plaintiff alleges Defendant Peterson gave him an order denying Plaintiff the right to assert a Fifth Amendment privilege against self-incrimination by directing Plaintiff that he would only be allowed to answer questions during a polygraph examination with "Yes" or "No" answers. Plaintiff asserts he is in fear of future prosecution of crimes if he is not allowed to assert his Fifth Amendment privilege.
Plaintiff asserted a similar claim in an action he filed prior to this one, Ferry v. Doohan, Case No. 3:18-cv-00153-AC. There, this Court issued an Opinion and Order denying Plaintiff's Motion for Preliminary Injunction on this issue, Magistrate Judge John V. Acosta issued a Findings and Recommendation recommending dismissal of the claim for failure to state a claim upon whichrelief may be granted, and this Court issued an Order adopting Judge Acosta's Findings and Recommendation and dismissing the claim.2 Ferry v. Doohan, Case No. 3:18-cv-00153-AC, Docket Entries 22, 40, and 54.3
For the reasons set forth in the decisions in Case No. 3:18-cv-00153-AC, Plaintiff fails to state a claim that Defendant Peterson violated his Fifth Amendment privilege against self-incrimination. The Fifth Amendment rights against compelled self-incrimination applies only when a compelled statement is used against a defendant in a criminal case. United States v. Hulen, 879 F.3d 1015, 1018 (9th Cir.), cert. denied, 139 S. Ct. 251 (2018). To the extent Plaintiff's Complaint alleges he may be subject to revocation of release, he does not state a claim upon which relief may be granted. The mere threat of revocation of post-prison supervision for refusing to undergo a polygraph examination does not violate the Fifth Amendment right against self-incrimination. See Id. a 1021-22 (because a proceeding to revoke supervised release is not a "criminal case" for the purposes of the Fifth Amendment, the right against self-incrimination did not prevent the use of the plaintiff's admissions in a polygraph examination to revoke his supervised release). Moreover, Oregon law provides that where a defendant is required as a condition of post-prison supervision to participate in "random polygraph examination to obtaininformation for risk management and treatment," the results of those polygraphs "may not be used in evidence in a hearing to prove a violation of parole." Or. Rev. Stat. § 104.270(4)(b)(J).
Plaintiff also does not allege facts sufficient to establish a reasonable fear that he may be subject to future prosecution based on his responses to a polygraph examination. In United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005), the Ninth Circuit upheld the plaintiff's right to refuse to answer questions in a polygraph examination where the court found "no doubt" that the answer would be used to incriminate the plaintiff in a pending or...
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