Ferry v. Doohan
| Decision Date | 28 November 2018 |
| Docket Number | Civil No. 3:18-cv-01891-HZ |
| Parties | RICHARD FERRY, Plaintiff, v. KEVIN DOOHAN, et al., Defendants. |
| Court | U.S. District Court — District of Oregon |
RICHARD FERRY
P.O. Box 91432
Portland, OR 97291
Plaintiff Pro Se
KIMBERLY A. STUART
Assistant County Counsel
Office of Washington County Counsel
155 N. First Avenue
Suite 340, MS #24
Hillsboro, OR 97124
Attorneys for Defendants
Plaintiff brings this civil rights action pro se. Currently before the Court is Plaintiff's Motion for Preliminary Injunction1 (ECF No. 2), which came before the Court for hearing on November 19, 2018. For the reasons that follow, the Court DENIES a preliminary injunction.
Plaintiff is currently on post prison supervision ("PPS") from a Washington County Circuit Court conviction on charges of Sexual Abuse in the First Degree and Sexual Abuse in the Third Degree. This is the second civil rights action initiated by Plaintiff alleging violations of his constitutional rights in connection with the enforcement of the conditions of Plaintiff's PPS release as set forth in an August 8, 2016, Order issued by the Oregon Board of Parole and Post-Prison Supervision (the "Board"). In the first action, Ferry v. Doohan, Case No. 3:18-cv-00153-AC, this Court issued an Opinion and Order (ECF No. 22) denying Plaintiff's motion for preliminary injunction. The background facts from that Opinion and Order are incorporated herein by reference, and supplemented below as necessary.
In his current Motion, Plaintiff seeks an order enjoining Defendants from (1) requiring him to submit to a polygraph examination in violation of his Fifth Amendment right to be free from self-incrimination; (2) demanding that Plaintiff sign a Release of Information ("ROI") for records from a mental health treatment program in violation of Plaintiff's right to privacy under the First, Ninth, and Fourteenth Amendments; (3) prohibiting Plaintiff attending religious services at the church ofhis choice in violation of the First Amendment; and (4) retaliating against Plaintiff for exercising his right to redress his grievances with the Court under the First and Fourteenth Amendments.
"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). "A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Id. at 20 (emphasis added); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). In the Ninth Circuit, assuming the other elements of the Winter test are met, a "sliding scale" approach may be taken and "[a] preliminary injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor." Alliance for the Wild Rockies, 632 F.3d at 1131-35 (). Where, as here, the plaintiff seeks a mandatory injunction that goes beyond maintaining the status quo, he must demonstrate that the facts and law clearly favor an injunction. Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015); see also Am. Freedom Def. Initiative v. King Cty., 796 F.3d 1165, 1173 (9th Cir. 2015) ().
Plaintiff alleges Defendants are violating his rights against self-incrimination by requiring him to submit to polygraph examinations as a condition of his release. For the reasons stated in theCourt's Opinion and Order denying a preliminary injunction in the prior action, the Court denies Plaintiff's current request. To the extent Plaintiff contends relief should be granted based on the alleged prosecution of another inmate for disclosures made in a PPS polygraph examination, the Court finds Plaintiff's citation to that case is not persuasive. Accordingly, Plaintiff has not established a likelihood of success on the merits of this claim. Moreover, Plaintiff has not demonstrated the likelihood of irreparable harm, as Plaintiff stated at the hearing on his Motion that he underwent and successfully passed a recent maintenance polygraph examination. Finally, the balance of equities and public interest continue to weigh against Plaintiff.
Plaintiff also seeks an injunction preventing Defendants from requiring Plaintiff to release information pertaining to mental health treatment provided Plaintiff at Sequoia Mental Health Services. Plaintiff alleges he enrolled in an anger management program at Sequoia "on his own apart from anything" required as sex offender treatment under the terms of his PPS release. He further alleges that his sex offender treatment provider concluded that Plaintiff fully complied with the release condition of "[e]ntry into and completion of or successful discharge from a sex offender treatment program approved by the board, supervisory authority or supervising officer." Plaintiff alleges the requirement that he release information from Sequoia violates his Ninth and Fourteenth Amendment rights to private, confidential, and privileged communication with his treatment providers.
Defendants, however, submit evidence that Plaintiff's treatment at Sequoia is an ongoing part of the sex offender treatment required under the conditions of his PPS release. Specifically, Defendant Vice expressed concern that Plaintiff's treatment at Sequoia "would not qualify as sexoffender treatment and that Sequoia as a mental health services provider, may not have sufficient training on sex offender related issues."
Plaintiff has not established a basis for preliminary injunctive relief on this claim. To the extent Plaintiff premises his claim on the Ninth Amendment, he fails to state a claim upon which relief may be granted and, perforce, cannot demonstrate a likelihood that he will prevail on the merits of his claim. See Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986) () (citations omitted). Plaintiff fares no better under the Fourteenth Amendment. As a person on post-prison supervision, Plaintiff has a lower expectation of privacy. Samson v. California, 547 U.S. 843, 852 (2006).
Moreover, there is a factual dispute as to the status of Plaintiff's sex offender treatment. Defendants' declarations establish that their purpose in obtaining an ROI for Plaintiff's treatment records at Sequoia was to establish whether Plaintiff was complying with this requirement. As noted, Plaintiff contends he was "successfully discharged" from sex offender treatment and, therefore, that the Sequoia records are no longer relevant to the conditions of his release. Given the differing positions of the parties, the Court concludes Plaintiff has not demonstrated a likelihood of success on the merits on this claim. See Int'l Molders' and Allied Workers' Local Union No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir. 1986) () (internal citations omitted). Finally, Plaintiff has not established he is likely to establish irreparable harm as a result of the release of information (which he provided Defendants prior to the hearing), or that it would not be equitable or in the public's interest to continue their supervision.
Plaintiff alleges he is a devoted Catholic and his religious beliefs are closely held. He alleges Defendants have prevented him from attending mass at a Catholic church and instead informed him he can only attend church services at the Sonrise non-denominational church. He alleges Defendants have thereby violated his right to free exercise of religion and his rights under the Establishment Clause.
Defendants submit evidence that on or about June 26, 2018, Plaintiff requested a modification of his PPS conditions to allow him to attend mass at his Catholic church. Defendant Vice explained to Plaintiff that once he was in compliance with the terms and conditions of his PPS, she would be willing to speak to an authorized representative of Plaintiff's church to develop an acceptable safety plan. Defendant Vice states that safety plans are developed between the sex offender treatment provider, the parole officer, and the client. At the time Plaintiff made his request to attend church, Vice states that Plaintiff was not in compliance with the terms of his release which in turn raised barriers to the creation of a safety plan, as Plaintiff still had unresolved full-disclosure polygraph issues, and refused to participate in answering questions.
At the hearing, Plaintiff stated that Defendants will not allow Plaintiff to attend Catholic mass unless and until Plaintiff admits culpability for his crimes, which he refuses to do because he maintains his innocence. Plaintiff further argued that Defendants' position that he is not in compliance with the conditions requiring sex offender treatment is contradicted by the sex offender treatment provider's statement that he was "successfully discharged" from treatment.
Defendant Vice also states that sex offender clients may generally attend Sonrise Church, a non-denominational church, but a safety plan would still be required. At the hearing, Plaintiffcountered that other sex offenders under PPS supervision routinely attended services at Sonrise without a safety plan, though Plaintiff...
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