Neal v. Shimoda

• Decision Date: 27 July 1995
• Docket Number: Civ. No. 94-00817 ACK/FIY.
• Citation: 905 F. Supp. 813
• Parties: A.J. NEAL, Plaintiff, v. Edwin SHIMODA, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

905 F. Supp. 813

A.J. NEAL, Plaintiff, v. Edwin SHIMODA, et al., Defendants.

Civ. No. 94-00817 ACK/FIY.

United States District Court, D. Hawai`i.

July 27, 1995.

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A.J. Neal, Hilo, HI, pro se.

Kathleen Mari Sato, Office of the Attorney General, State of Hawai`i, Honolulu, HI, for defendants.

ORDER MODIFYING IN PART AND ADOPTING IN PART THE MAGISTRATE'S FINDINGS AND RECOMMENDATION

KAY, Chief Judge.

BACKGROUND

On October 26, 1994, A.J. Neal ("Plaintiff"), proceeding pro se, filed a 42 U.S.C. § 1983 complaint. Plaintiff complains that state prison officials have incorrectly labeled him as a "sex offender". Plaintiff alleges that his constitutional rights are being violated because, due to the "sex offender" label, he is denied a minimum security classification status, furlough and parole; he suffers mental and emotional distress; and he is recommended to participate in the Sex Offender Treatment Program ("SOTP"). In particular, Plaintiff claims that his being labeled as a sex offender violates the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, the Eighth Amendment, the Ex Post Facto Clause and the Fifth Amendment.

On December 20, 1994, Plaintiff filed a motion for summary judgment and on February 17, 1995, Defendants filed a cross motion for summary judgment. On April 24, 1995, the Magistrate Judge issued findings and a recommended that this Court GRANT Defendants' motion and Deny Plaintiff's motion.

STATEMENT OF FACTS

On June 13, 1990, Plaintiff was indicted of several charges in Cr. No. 90-1021 in the Circuit Court of the First Circuit, State of Hawaii, including kidnapping, terroristic threatening, attempted murder and three counts of sexual assault in the first degree. The charges arose out of the same series of events during which Plaintiff allegedly kidnapped a man during the course of committing an armed robbery and then forcibly subjected him to several sexual offenses. Plaintiff entered into a plea agreement in which he plead guilty of kidnapping, terroristic threatening and assault. The three counts of sexual assault were dismissed. In Cr. No. 90-1017, Plaintiff was again indicted of several charges including kidnapping, theft and five counts of sexual assault in the third degree. These charges arose out of a single series of events in which Plaintiff allegedly kidnapped a woman and forcibly subjected her to several sexual offenses. Plaintiff plead guilty to charges of unlawful imprisonment and theft and the five counts of sexual assault were dismissed. Plaintiff was sentenced to a maximum sentence of 25 years with a mandatory minimum of 6 years and sent to Halawa Correctional Facility, a medium security prison.

On February 14, 1994, Richard Mello ("Mello"), RAD Case Manager, completed an initial treatment plan for Plaintiff. In the plan, Mello cited Plaintiff's indictment as history of sexual deviance and recommended that Plaintiff complete the Sex Offender Treatment Program ("SOTP"). In response to Plaintiff's complaint, the administrator of SOTP, Barry J. Coyne ("Coyne") advised Plaintiff that in his opinion Plaintiff would benefit from SOTP and that participation in the program was voluntary.

On June 20, 1994, Plaintiff was denied minimum custody status at his classification review because he had not completed the SOTP. On October 19, 1994, Plaintiff's classification was reduced to a minimum custody level. Subsequently, Plaintiff was transferred from Halawa Correctional Facility to Kulani Correctional Facility, a minimum security facility on the Island of Hawaii.

STANDARD OF REVIEW

Any party may object to a magistrate's case dispositive proposed order, findings, or recommendation. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Local Rule 404-2. The district court must make a de novo determination of those portions of the magistrate's findings to which objection is made and may accept, reject, or modify, in whole or in part, the findings, or recommendation made by the magistrate. Id. De novo review means the court must consider the matter anew, the same as if it had not been heard before and as if no decision previously had been rendered. Ness v. Commissioner, 954 F.2d 1495, 1497 (9th Cir.1992). Thus, although the district court need not hold a de novo hearing, the court's obligation is to arrive at its own independent conclusion about those portions of the magistrate's findings or recommendation to which objections are made. United States v. Remsing, 874 F.2d 614, 617 (9th Cir.1989).

The court may accept those portions of the magistrate's findings and recommendation which are not objected to if it is satisfied that there is no clear error on the face of the record. See Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir.1974).

DISCUSSION

I. DUE PROCESS LIBERTY INTEREST

Plaintiff objects to the Magistrate Judge's finding that he did not have a liberty interest in housing, classification, furloughs or parole. Plaintiff also claims that he was denied due process by being labeled as a sex offender although he was not convicted, adjudged or found guilty of any sex offenses.

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548 (1971). In addition to liberty interests arising from the Constitution, courts have long recognized that state prison regulations may give rise to liberty interests that are protected by the Fourteenth Amendment, Meachum v. Fano, 427 U.S. 215, 223-227, 96 S.Ct. 2532, 2537-2539, 49 L.Ed.2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 2975-76, 41 L.Ed.2d 935 (1974). However, the interest created by the regulation must be something more than freedom from the restrictions ordinarily contemplated by a prison sentence. Sandin v. Conner, ___ U.S. ___, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The interests created by state prison regulations will be "generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. (citations omitted).

The Court agrees with the Magistrate Judge that a prisoner has no constitutional right to be housed at a particular institution, Meachum, 427 U.S. at 224, 96 S.Ct. at 2537, to receive a particular security classification, Moody v. Daggett, 429 U.S. 78, 87 n. 9, 97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236 (1976); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.1987), or to be released on parole, Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). See also Olim v. Wakinekona, 461 U.S. 238, 239, 103 S.Ct. 1741, 1742, 75 L.Ed.2d 813 (prisoner does not have a protected liberty interest in being housed in an institution in his home state); Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983) (prisoner does not have a protected liberty interest in being in the general population of inmates rather than a more restricted segregation); Grayson v. Rison, 945 F.2d 1064, 1067 (9th Cir.1991) (prisoner does not have a protected liberty interest in being housed in a less restrictive section of a facility). Similarly, the Court finds Plaintiff has no constitutional right to furlough or in freedom from being labeled as a sex offender. Neither denial of furlough nor labeling Plaintiff as a sex offender for treatment purposes in themselves exceed Plaintiff's term of sentence in such an unexpected manner as to give rise to protection by the Due Process Clause. Moreover, that Plaintiff's sex offender classification may alter his custody level and eligibility for parole does not elevate the interest to a constitutional level as Plaintiff has neither a constitutional right to a particular custody level or being released on parole.

The Court also finds that the prison's policies governing reclassification, custody level, furlough, parole and labeling Plaintiff as a sex offender do not create a protected liberty interest. In light of the United States Supreme Court's decision in Sandin, which post dates the Magistrate Judge's Findings and Recommendation, the Court finds that Defendants' labeling of Plaintiff as a sex offender and any resultant impact on Plaintiff's custody level or eligibility for parole and furlough do not impose "atypical or significant hardship" in relation to the ordinary incidents of prison life.

Because Plaintiff has no liberty interest in housing, classification, furlough, parole or not being labeled as a sex offender, Defendants are not required to provide the procedural protections guaranteed by the Due Process Clause before taking any action affecting these conditions of Plaintiff's imprisonment. Thus, the Court finds that Defendants did not violate Plaintiff's Fourteenth Amendment right to due process by labeling him as a sex offender. Accordingly, Defendants are entitled to summary judgment on Plaintiff's due process claims.

II. EQUAL PROTECTION

The equal protection clause "is essentially a direction that all persons similarly situated should be treated alike." E.g., City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3253 (1985). Unless a practice that distinguishes among classes of people provokes strict judicial scrutiny, it will typically survive an equal protection attack so long as the challenged regulation is rationally related to a legitimate governmental purpose. A state practice will not generally require strict scrutiny unless it interferes with a "fundamental right" or discriminates against a "suspect class" of individuals. Massachusetts Board of...