Opinion
CASE NO. C12-0979JLR-MAT
05-16-2013
DERRICK M. SIMON, Plaintiff, v. ROBIN MURPHY, et al., Defendants.
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANTS' MOTION TO
DISMISS
I. INTRODUCTION
Before the court is Defendants' motion to dismiss Plaintiff Derrick M. Simon's 42 U.S.C. § 1983 complaint alleging violations of his due process and equal protection rights under the Fourteenth Amendment. (Mot. to Dismiss (Dkt # 20).) This is a civil rights case arising from Mr. Simon's expulsion from a sex offender treatment program. Mr. Simon, an inmate at the Washington Department of Corrections ("DOC"), alleges that Defendants, DOC employees, violated his constitutional rights by removing him from the prison's sex offender treatment program. (Compl. (Dkt # 9).) Defendants move to dismiss Mr. Simon's case pursuant to Federal Rule of Civil Procedure 12(c), arguing that Mr. Simon has failed to state a cognizable claim. (Mot. to Dismiss at 1.)
Also before the court are the Report and Recommendation ("R&R") of Magistrate Judge Mary Alice Theiler recommending that Defendants' motion be granted in part and denied in part (R&R (Dkt. # 33)), and Mr. Simon's objections thereto (Objections (Dkt. # 34)). Magistrate Judge Theiler recommended that the court dismiss Mr. Simon's due process claims (R&R at 4), but did not consider whether Mr. Simon had a due process liberty interest in sex offender treatment arising from a particular Washington statute, RCW 72.09.335 (2004). (See 3/18/13 Order (Dkt. # 35); RCW 72.09.335 (2004) (requiring the DOC to provide inmates with sex offender treatment under certain circumstances).) Magistrate Judge Theiler also recommended that the court deny Defendants' motion to dismiss Mr. Simon's equal protection claims. (R&R at 11.)
The court has considered the parties' submissions filed in support of and opposition to the motion, the R&R, and the applicable law. For the reasons stated below, the court GRANTS in part and DENIES in part the motion. Even after considering whether RCW 72.09.335 creates a liberty interest in sex offender treatment, the court agrees with Magistrate Judge Theiler that Mr. Simon has no liberty interest at stake in this case and thus GRANTS Defendants' motion to dismiss his due process claims. The court also agrees that dismissing Mr. Simon's equal protection claim is not now appropriate, and thus DENIES Defendant's motion to dismiss that claim.
II. BACKGROUND
This is a civil rights action for damages under 42 U.S.C. § 1983 brought by Plaintiff Mr. Simon on June 5, 2012. (Compl.) Mr. Simon was convicted of Indecent Liberties and First Degree Promoting Prostitution in King County Superior Court for crimes committed in 2003. (Mot. to Dismiss Ex. 1 (Dkt. # 20-1) at 2.) Indecent Liberties is a felony sex offense in Washington. See RCW 9.94A.030(46)(a)(1); RCW 9A.44.100(2)(a). In October 2004, a King County Superior Court judge sentenced Mr. Simon to seventy-five months to ten years for the Indecent Liberties count pursuant to RCW 9.94A.712 (effective until July 1, 2005), recodified to RCW 9.94A.507. (Mot. to Dismiss Ex. 1 at 6.) Due to his sex offense conviction, Mr. Simon is not eligible for release prior to the expiration of his sentence but is eligible for transfer to community custody in lieu of earned release time. See id.; RCW 9.94A.712(5) (effective until July 1, 2005); RCW 9.94A.728(2)(b) (effective until July 1, 2005). Mr. Simon was also sentenced to community custody "for any period of time the defendant is released from total confinement before the expiration of the maximum sentence." (Mot. to Dismiss Ex. 1 at 6.)
While in prison, Mr. Simon took part in the DOC's Sex Offender Treatment Program ("SOTP") until he was expelled from that program in January, 2010. (Compl. at 4.) Mr. Simon alleges that he was expelled from SOTP without justification and without due process of law, and that he has a constitutionally protected liberty interest in participating in the program because participation is a factor in parole decisions. (Compl. at 1-2.) He alleges this expulsion violated his procedural and substantive due process rights under the Fourteenth Amendment. (Compl. at 5.) Mr. Simon also claims that his expulsion violated his equal protection rights under the Fourteenth Amendment because he is black and was allegedly treated differently than similarly situated white inmates. (Id.;Simon Decl. (Dkt. # 32) at 23-26.)
Defendants, who work for the DOC, move to dismiss Mr. Simon's due process claims, arguing that he has no constitutionally protected liberty interest in sex offender treatment or early release. (Mot. to Dismiss at 4.) Magistrate Judge Theiler agreed and recommended that the court dismiss Mr. Simon's due process claims. (R&R at 4.) Defendants also move to dismiss Mr. Simon's equal protection claim, arguing that Mr. Simon has failed to allege facts sufficient to support an equal protection violation. (Mot. to Dismiss at 8.) Magistrate Judge Theiler recommended that the court deny Defendants' motion to dismiss Mr. Simon's equal protection claim. (R&R at 11.)
After reviewing Mr. Simon's complaint, Defendants' motion to dismiss, and the R&R, the court issued an order requesting additional briefing. (3/18/13 Order (Dkt. # 35).) In this order, the court noted that Washington law may create a liberty interest in sex offender treatment for inmates like Mr. Simon. (Id. at 4.) Specifically, a Washington statute requires the DOC to provide certain inmates with sex offender treatment: "The [DOC] shall provide offenders sentenced under RCW 9.94A.712 with the opportunity for sex offender treatment during incarceration." RCW 72.09.335 (2004). This statute applies to Mr. Simon because he was sentenced under RCW 9.94A.712 (see Mot. to Dismiss Ex. 1 at 6), and is currently incarcerated. The court requested additional briefing to address whether Mr. Simon has a due process liberty interest in the opportunity to receive sex offender treatment arising from this statute. (3/18/13 Order at 5.) Having considered the additional briefing, the court now evaluates Defendants' motion to dismiss Mr. Simon's complaint. (Dkt. # 20.)
III. ANALYSIS
A. Legal Standard
Defendants move to dismiss Mr. Simon's 42 U.S.C § 1983 claims pursuant to Federal Rule of Civil Procedure 12(c). (See generally Mot. to Dismiss). Under Rule 12(c), "[a]fter pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12 (c). The court evaluates a Rule 12(c) motion to dismiss under the same standard as a Rule 12(b)(6) motion. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). Dismissal under Rule 12(b)(6) may be based on a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
When evaluating a motion to dismiss, the court construes the complaint in the light most favorable to the non-moving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). However, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Baker v. Riverside Cnty. Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009). The court also liberally construes pro se pleadings. Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010).
Mr. Simon, proceeding pro se and in forma pauperis, claims violations of his constitutional rights pursuant to 42 U.S.C. § 1983. (See generally Compl.) In order to sustain his claims, Mr. Simon must establish that he suffered a violation of rights protected by the Constitution and that this violation was proximately caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). As an inmate at the DOC, Mr. Simon "is not wholly stripped of constitutional protections," Wolff v. McDonnell, 418 U.S. 539, 555 (1974), but his rights are "subject to restrictions imposed by the nature of the regime to which [he has] been lawfully committed." Id. at 556.
B. Due Process
Mr. Simon alleges that the DOC, acting under color of state law, violated both his procedural and substantive due process rights. (See generally Compl.) Under the Due Process Clause of the Fourteenth Amendment, the government cannot deprive a person of "life, liberty, or property" without due process of law. U.S. Const. amend, XIV. A due process claim—whether procedural or substantive—exists only where a constitutionally protected liberty or property interest is at stake. Ingraham v. Wright, 430 U.S. 651, 672 (1977). Therefore, this court must first determine whether Mr. Simon has a liberty interest protected by the Due Process Clause implicated by his expulsion from SOTP.
A liberty interest may arise from either the Constitution itself or from state law. Meachum v. Fano, 427 U.S. 215, 225-26 (1976). Magistrate Judge Theiler found that Mr. Simon had no liberty interest in either sex offender treatment or transfer to community custody, whether arising out of the Constitution or state law. (R&R at 5, 7.) The court agrees that Mr. Simon has no liberty interest in transfer to community custody. Carver v. Lehman, 558 F.3d 869, 875 (9th Cir. 2009) (holding that Washington law does not create a liberty interest in transfer to community custody for sex offenders); see also Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 7 (1979) (holding that convicted prisoners have no due process liberty interest in early release arising from the Constitution). As explained below, the court also agrees that Mr. Simon has no liberty interest in sex offender treatment created by the U.S. Constitution or Washington law.
1. Liberty Interest Created by the Constitution
A liberty interest may arise from the Constitution itself "by reason of guarantees implicit in the word 'liberty.'" Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The Due Process Clause does not protect every change in conditions of confinement adversely impacting a prisoner, even if these changes cause the prisoner to suffer a "grievous loss." Meachum v. Fano, 427 U.S. 215, 224 (1976) (rejecting "the notion that any grievous loss visited upon a person by the State" triggers due process protections (emphasis in original)). Only the most severe changes in conditions of confinement trigger liberty interests protected directly by the Constitution. See, e.g., Vitek v. Jones, 445 U.S. 480, 491-94 (1980) (holding that "involuntary commitment to a mental hospital" triggered due process protections); Washington v. Harper, 494 U.S. 210, 221-22 (1990) (holding that "unwanted administration of antipsychotic drugs" triggered due process protections).
Prisoners have no liberty interest in rehabilitative programs arising directly from the Constitution. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (finding no due process right in "eligibility for rehabilitative programs" in the federal prison system); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (finding that there "is no constitutional right to rehabilitation" and thus no right to access rehabilitative services). Moreover, the Ninth Circuit Court of Appeals has rejected a right to sex offender treatment arising directly from the Constitution. See Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 470 (9th Cir. 1989) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1255 n.8 (9th Cir. 1982) (reiterating Hoptowit's conclusion that prisoners "have no constitutional right to rehabilitation" and concluding that inmates specifically have no right to sex offender treatment when their incarceration serves punitive purposes). For these reasons, the court agrees with Magistrate Theiler that the Constitution does not create a liberty interest in sex offender treatment and ADOPTS that portion of Magistrate Judge Theiler's Report and Recommendation. (R&R at 5.)
2. Liberty Interest Created by State Law
In addition to the Constitution itself, a liberty interest may arise out of state law. Meachum, 427 U.S. at 225-26. A state may create a liberty interest through statutes, prison regulations, and policies. Chappell v. Mandeville, 706 F.3d 1052, 1063 (9th Cir. 2013). Magistrate Judge Theiler found that Mr. Simon "fail[ed] to set forth any basis for the contention that Washington law creates a liberty interest associated with sex offender treatment" (R&R at 7), but did not consider whether RCW 72.09.335 (2004) created such a liberty interest. The court finds that Mr. Simon has no liberty interest in sex offender treatment arising from this or any other statute, as explained below.
For many years, courts evaluated prisoners' state-created liberty interests according to the "mandatory language" test articulated in Greenholtz and Hewitt v. Helms, 459 U.S. 460 (1983). Under this test, courts asked whether state law contained "explicitly mandatory language" and "specific directives to the decisionmaker that if the [law's] substantive predicates are present, a particular outcome must follow." Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 463 (1989) (citing Hewitt, 459 U.S. at 471-72). However, the Supreme Court abandoned the mandatory language test as applied to prisoners' liberty interests in conditions of confinement in Sandin v. Conner, 515 U.S. 472. See Wilkinson v. Austin, 545 U.S. 209, 222 (2005) (concluding that Sandin "abrogated" the Hewitt mandatory language test for "liberty interests in avoiding particular conditions of confinement"). In Sandin, the Ninth Circuit—applying the Hewitt "mandatory language" test—concluded that the plaintiff, an inmate in Hawaii state prison, had a liberty interest arising from a state prison regulation. 515 U.S. at 475-76. The Supreme Court reversed, holding that this regulation did not give rise to a protected liberty interest despite its mandatory language. Id. at 477.
According to Sandin, the mandatory language test as applied to prison regulations strayed from the real concerns underlying due process liberty. Id. at 483. The Court criticized the test for emphasizing "the language of a particular [state law]" rather than "the nature of the deprivation." Austin, 545 U.S. at 222 (citing Sandin, 515 U.S. at 481). Applying the mandatory language test, courts inferred liberty interests from routine prison regulations, which encouraged prisoners to comb regulations searching for mandatory language in order to bring a claim. Sandin, 515 U.S. at 481. As a result, this test discouraged states from codifying prison procedures and improperly involved federal courts in the "day-to-day management of prisons." Id. at 482. To address these prison management concerns, the Court applied a new test, finding that prisoner liberty interests are "generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484.
Courts apply this "atypical and significant hardship" test to liberty interests related to conditions of confinement to prevent federal courts from micromanaging prisons. Chappell, 706 F.3d at 1063; Austin, 434 U.S. at 223. Indeed, the Ninth Circuit has expressly rejected the old mandatory language test in this context:
The Ninth Circuit still applies the mandatory language test articulated in Greenholtz to liberty interests in parole and release to community custody, limiting Sandin to "internal prison regulations." Carver, 558 F.3d at 873 n.5 (quoting McQuillion v. Duncan, 306 F.3d 895, 902-03 (9th Cir. 2002); see also Chappell, 706 F.3d at 1064 n.5 (recognizing different tests for state-created liberty interests in "prison conditions and discipline cases" and "parole"); Swathout v. Cooke, 131 S. Ct. 859, 861-63 (2011) (per curiam) (recognizing the "reasonable application" of the Greenholtz mandatory language test when analyzing state-created liberty interests in parole). The Ninth Circuit also does not apply Sandin to pretrial detainees, noting that Sandin only "refers to the ordinary incidents of imprisonment under a sentence after conviction." Carlo v. City of Chino, 105 F.3d 493, 498 n.1 (9th Cir. 1997) (quoting Mitchell v. Dupnik, 75 F.3d 517, 523 (9th Cir. 1996)). This is consistent with Sandin's rationale because statutes related to parole and pre-trial detainees are not intended to "guide correctional officials in the administration of a prison." Sandin, 515 U.S. at 482. These laws thus do not implicate the same prison management concerns as state laws related to convicted prisoners' conditions of confinement. See id. at 284; Mitchell, 75 F.3d at 523.
In applying Sandin, we have concluded that the discretionary/mandatory substantive predicates approach was "abandoned" or "overruled" in Sandin, and our decisions have focused only on the "atypical and significant hardship" test, even in the face of relevant prison regulations.Chappell, 706 F.3d at 1064 (emphasis added). Accordingly, the court finds that it is appropriate to apply Sandin to determine if Mr. Simon has a liberty interest in receiving sex offender treatment. Mr. Simon is a convicted prisoner, receiving sex offender treatment is an ordinary incident of his imprisonment, and terminating his treatment affected the conditions of his confinement rather than the fact or length of his imprisonment. See Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002) (classifying an inmate's challenge to his expulsion from sex offender treatment as a challenge to the conditions of his confinement rather than to the fact or length of his detention). The court therefore applies the Sandin "significant hardship" test rather than the mandatory language test when evaluating whether Mr. Simon has a liberty interest in receiving sex offender treatment arising from Washington law. This is consistent with the practice of courts in other jurisdictions. See, e.g., id. (applying Sandin and holding that New Jersey's statutory scheme predicating the term of a prisoner's sentence on the prisoner's response to treatment created a liberty interest in treatment); Beebe v. Heil, 333 F. Supp. 2d 1011 (10th Cir. 2004) (unpublished) (applying Sandin and holding that Colorado's statutory scheme creates a due process liberty interest in sex offender treatment because, under that scheme, sex offenders must undergo treatment as "an absolute prerequisite for release on parole"); Reilly v. Iowa Dist. Court, 783 N.W.2d 490 (Iowa 2010) (applying Sandin and holding that Iowa's statutory scheme creates a due process liberty interest in sex offender treatment because removal from sex offender treatment "inevitably affected the duration of [the plaintiff's] sentence").
This case concerns a liberty interest arising from a Washington statute, while the Court in Sandin arguably limited its holding to "internal prison regulations." See, e.g., McQuillion, 306 F.3d at 902. However, the Ninth Circuit has previously applied Sandin to evaluate liberty interests created by state statutes. See Chaney v. Stewart, 156 F.3d 921, 925 (9th Cir. 1998) ("A 'negative implication from mandatory language' in a statute does not necessarily create a protected liberty interest." (quoting Sandin, 515 U.S. at 483-84)). The court applies Sandin in this case because that is the test used to evaluate liberty interests in conditions of confinement, whether created by state statute or by regulation. See Chaney, 156 F.3d at 925; Leamer, 288 F.3d at 545.
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Under Sandin, a state-created liberty interest exists where the hardship imposed on a prisoner is "atypical and significant . . . in relation to the ordinary incidents of prison life." 515 U.S. at 484. Lawful incarceration necessarily limits a prisoner's rights and privileges, see Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977), making it difficult to identify the baseline from which to measure an atypical and significant hardship. Austin, 545 U.S. at 223. With this in mind, courts look at whether the challenged state action (1) "present[s] a dramatic departure from the basic conditions" of the prisoner's sentence, Sandin 525 U.S. at 485, or (2) "will inevitably affect the duration of [the prisoner's] sentence." Id. at 487.
Terminating Mr. Simon's sex offender treatment did not dramatically depart from the basic conditions of his sentence. Under Washington law, prison officials have discretion to control the conditions of an inmate's confinement, and specifically to reduce prisoners' privileges. For example, officials may change an inmate's custody classification, decreasing the inmate's privileges, without triggering due process. See In re Dowell, 674 P.2d 666, 668 (Wash. 1984) (holding that plaintiff inmate did not have a due process liberty interest created by RCW 72.09.130 or WAC 275-88-105(2) in maintaining a favorable custody classification, which would entitle him to programs and privileges). Prison officials may also revoke visitation privileges with extended family without due process procedures. In re Dyer (Dyer I), 20 P.3d 907, 911-12 (Wash. 2001) (holding that participation in the DOC's extended family visits program was not a liberty interest created by RCW 72.09.470). The fact that a prisoner has access to certain favorable conditions of confinement "is not sufficient to create a liberty interest in the continuation of those conditions." In re Gentry, 245 P.3d 766, 768 (Wash. 2010) (holding that Washington law does not create a protected liberty interest in general prison population housing because solitary confinement is not an "atypical and significant deprivation" for death row inmates). The DOC had broad discretion to revoke Mr. Simon's privileges and alter the conditions of his confinement. Revoking this particular privilege—access to sex offender treatment—was thus not a dramatic departure from the basic conditions of Mr. Simon's sentence.
Terminating Mr. Simon's sex offender treatment also did not inevitably affect the length of his sentence. It is true that several courts have found state-created liberty interests in sex offender treatment based on the relationship between treatment and the length of the offender's sentence. See, e.g., Leamer, 288 F.3d at 544 (holding that New Jersey's statutory scheme predicating the term of a prisoner's sentence on the prisoner's response to treatment created a liberty interest in treatment); Beebe v. Heil, 333 F. Supp. 2d 1011 (10th Cir. 2004) (unpublished) (holding that Colorado's statutory scheme establishing sex offender treatment as "an absolute prerequisite for release on parole" created a due process liberty interest in treatment); Reilly v. Iowa Dist. Court, 783 N.W.2d 490 (Iowa 2010) (holding that Iowa's statutory scheme creates a due process liberty interest in sex offender treatment because removal from treatment "inevitably affected the duration of [the plaintiff's] sentence"). These cases, however, are distinguishable because in these cases state statutes predicated the plaintiff's sentence on sex offender treatment.
For example, the Third Circuit Court of Appeals in Leamer determined that New Jersey's former statutory scheme created a due process liberty interest in sex offender treatment. 288 F.3d at 544. Under that scheme, treatment and confinement were inextricably linked. Id. The sentencing court classified the plaintiff as having a "mental aberration" in need of "specialized treatment." Id. This classification automatically subjected the plaintiff to the maximum incarceration permitted by law unless he was "cured." Id. Only a successful response to therapy could shorten the plaintiff's incarceration, making therapy an integral element of the plaintiff's sentence. Id. Because New Jersey's statutory scheme "predicate[d] the term of his sentence on his response to treatment," deprivation of treatment imposed an "atypical and significant hardship" on the plaintiff. Id. at 544-45. Courts analyzing Leamer conclude that any liberty interest created by a similar statutory scheme "would be quite narrow, limited to the right to pursue such treatment if it is indeed required for parole." Perry v. Pa. Dep't of Corr., 441 F. App'x. 833, 837 n.5 (3d Cir. 2011) (unpublished).
Other courts finding a liberty interest in sex offender treatment also base this conclusion on the connection between treatment and the length of confinement. For example, the district court in Beebe found that Colorado's statutory scheme created a liberty interest in sex offender treatment because, like in Leamer, only successful therapy could shorten the plaintiff's incarceration. Beebe, 333 F. Supp. 2d at 1016. Without treatment, the plaintiff could never be eligible for parole. Id. at 1017. Although a prisoner had no liberty interest in parole under Colorado law, id. at 1013, the district court found that ineligibility for parole constituted a "grievous loss," creating a liberty interest in sex offender treatment. Id. at 1017. Similarly, the Iowa Supreme Court in Reilly found a liberty interest in sex offender treatment because denial of treatment made the plaintiff ineligible to accrue earned time and thus "inevitably affected the duration of [his] sentence." 783 N.W.2d at 495.
By contrast, Washington law does not predicate the term of Mr. Simon's sentence on his response to treatment. Washington follows a complicated procedure for determining whether to release a sex offender or transfer a sex offender to community custody. Before the expiration of a sex offender's minimum term, the DOC conducts an end of sentence review. RCW 72.09.340; RCW 9.95.420. As part of this review, the DOC examines the offender using recognized methodologies for the "prediction of sexual dangerousness" and issues a "prediction of the probability that the offender will engage in sex offenses if released." RCW 9.95.420(1)(a). The Indeterminate Sentence Review Board ("ISRB") then conducts a hearing to determine "whether it is more likely than not that the offender will engage in sex offenses if released on conditions to be set by the board." RCW 9.95.420(3). The ISRB must release the offender unless it "determines by a preponderance of the evidence that, despite such conditions, it is more likely than not that the offender will commit sex offenses if released." Id.
Throughout this process, the ISRB maintains broad discretion over early release or transfer to community custody, with public safety as its paramount concern. In re Dyer (Dyer II), 283 P.3d 1103, 1108 (Wash. 2012). The ISRB must "give public safety considerations the highest priority when making all discretionary decisions." RCW 9.95.009(3). For this reason, the ISRB may consider a sex offender's lack of treatment when making decisions about release. Dyer II, 283 P.3d at 1109. However, unlike the statutory schemes in Leamer, Beebe, and Reilly, the ISRB retains discretion over how much weight to give this consideration, and a prisoner's sentence is not inevitably lengthened by failure to complete sex offender treatment. See, e.g., Dyer II at 1106 (finding that the ISRB refused to transfer plaintiff to community custody based on his lack of sex offender treatment, as well as other factors such as his behavioral history, in-person statement, and psychological evaluations); In re Mattson, 214 P.3d 141, 147 (Wash. 2009). Washington law does not automatically prohibit untreated sex offenders from being transferred to community custody, and thus lack of treatment does not impose an atypical and significant hardship relative to the ordinary incidents of prison life.
In order to proceed with his due process claims, Mr. Simon must have a protected liberty interest at stake. Ingraham, 430 U.S. at 672. The court agrees with Magistrate Judge Theiler that Mr. Simon has no liberty interest in this case, whether arising from the Constitution or state law. The court therefore DISMISSES Mr. Simon's procedural and substantive due process claims.
C. Equal Protection
The Defendants also move to dismiss Mr. Simon's equal protection claim. Having carefully reviewed Magistrate Judge Theiler's Report and Recommendation (R&R (Dkt. # 33)), Mr. Simon's objections thereto (Objections (Dkt. # 34)), and the governing law, the court ADOPTS the Report and Recommendation (Dkt. # 35) and DENIES Defendant's motion to dismiss Mr. Simon's equal protection claims.
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The court reviews de novo those portions of the report and recommendation to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Because Mr. Simon is proceeding pro se, this court must interpret his complaint and objections liberally. See Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 925 (9th Cir. 2003).
The court ADOPTS this portion of Magistrate Judge Theiler's Report and Recommendation and adopts the reasoning as if set forth herein. The court has thoroughly examined the record before it and finds the Magistrate Judge's reasoning persuasive in light of that record. Defendants essentially reargue the arguments they made to Magistrate Judge Theiler, and the court independently rejects them for the same reasons as Judge Theiler.
IV. CONCLUSION
For all of the reasons stated above, the court GRANTS in part and DENIES in part Defendants' motion to dismiss. The court DISMISSES Mr. Simon's procedural and substantive due process claims because Mr. Simon has no liberty interest implicated by his expulsion from sex offender treatment, whether arising from the U.S. Constitution directly or from Washington law. However, with respect to Mr. Simon's equal protection claim, the court ADOPTS Magistrate Judge Theiler's Report and Recommendation and DENIES Defendants' motion to dismiss.
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JAMES L. ROBART
United States District Judge