Michael Pina v. Harold Clarke ( 2011 )

FILED
NOT FOR PUBLICATION JUN 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL PINA, No. 08-35328
Plaintiff - Appellant, D.C. No. 2:06-cv-01547-BHS
v.
MEMORANDUM *
HAROLD CLARKE, Secretary, DOC;
THEODORE LEWIS, CCO, DOC; CLY
F. EVANS, RAPM, DOC; DAVID
GIKLEY, RAPM; PATRICIA TURNER,
CCO; GARY RINK, CCO; TROY
DUXBURY, CCO; RAYMOND
BROOKS, CCO; DAVID V. MCNEILL;
ROBERT B. LITTLEJOHN; RICK L.
MINNICH; MARTY GUNDERSON;
ROBERT SCHILLING; CHARLES L.
MALONE, DOC Risk Mitigation
Manager,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted May 4, 2011
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.
Michael Piña appeals the district court’s dismissal of his 42 U.S.C. § 1983action alleging violations of his constitutional rights by Department of Corrections
(DoC) and Seattle Police Department officials in implementing Washington’s sex
offender registration and community custody programs. We affirm.
Piña argues that he was entitled to due process before his sex offender risk
level status was elevated because he had a constitutionally protected liberty interest
at stake. The district court properly dismissed the DoC defendants as to this claim
because Piña failed to allege personal involvement by any DoC defendants with
respect to elevation of his risk status. See Jones v. Williams, 297 F.3d 930, 934
(9th Cir. 2002) (to state a claim under 42 U.S.C. § 1983, plaintiff must allege
“personal participation in the alleged rights deprivation”). Any statements by DoC
officials regarding Piña’s risk level separate from the official elevation did not rise
to the level of constitutional violations. See Paul v. Davis, 424 U.S. 693, 698
(1976) (Even if state officials’ acts were to qualify as defamation under state law,
such “action is [not] . . . transmuted into one for deprivation by the State of rights
secured under the Fourteenth Amendment.”).
The district court properly found that Detective Robert Schilling was entitled
to qualified immunity. We have not previously addressed whether an individual
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has a liberty interest at stake in risk level classification under Washington law. We
have, however, held that individuals do not have a privacy right at stake in the
statute’s notification provisions. See Russell v. Gregoire, 124 F.3d 1079, 1094
(9th Cir. 1997) (“The collection and dissemination of information under the
Washington Law does not violate any protected privacy interest, and does not
amount to deprivation of liberty or property.”). The Washington Supreme Court
has interpreted Russell to hold generally that the Washington sex offender
registration statute does not implicate a protected interest, although that case did
not address the elevation claim made here. See In Re Meyer, 16 P.3d 563, 618
(Wash. 2001). In line with these cases, we are unpersuaded that Piña was entitled
to a hearing prior to the elevation of his risk level status. In any event, a
reasonable official in Schilling’s position would lack notice of any protected
interest. Schilling is therefore entitled to qualified immunity. See Pearson v.
Callahan, 555 U.S. 223, 129 S. Ct. 808, 815 (2009) (An official is entitled to
qualified immunity if the “conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” (internal
quotation marks and citation omitted)).
Piña argues that DoC officials violated his Fourth, Fifth, and substantive due
process rights during implementation of the polygraph testing required by Piña’s
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community custody conditions. Piña failed to allege an unlawful search or a
Fourth Amendment violation before the district court, and that claim is therefore
waived. See White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010) (per curium)
(“Generally, arguments not raised before the district court are waived on appeal.”).
To the extent Piña argues that his exercise of Fifth Amendment rights was in
fact used against him, he limits that argument to the moments at which he refused
to sign the polygraph waiver forms, expressly declining to argue that his
incarceration for failure to abide by community custody conditions constituted the
basis of his Fifth Amendment claim. As noted in his reply brief, “Piña merely
takes issue with the way the process was actually applied, challenging . . . the DoC
Appellees’ effort to get him to preemptorily waive his Fifth Amendment rights.”
Piña has thus failed to allege that his exercise of Fifth Amendment rights was used
against him as required to sustain a 42 U.S.C. § 1983 action. See Chavez v.
Martinez, 538 U.S. 760, 769 (2003) (“[M]ere coercion does not violate the text of
the Self-Incrimination Clause absent use of the compelled statements in a criminal
case against the witness.”); see also Image Technical Serv., Inc. v. Eastman Kodak
Co., 136 F.3d 1354, 1356 (9th Cir. 1998) (matters “not specifically and distinctly
argued in appellant’s opening brief” are ordinarily waived).
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Because Piña’s substantive due process claim relies on the alleged Fourth
and Fifth Amendment violations, the claim is properly brought under those
amendments and not the Fourteenth Amendment. See Patel v. Penman, 103 F.3d
868, 874 (9th Cir. 1996), (“[W]here a particular amendment provides an explicit
textual source of constitutional protection against a particular sort of government
behavior, that Amendment, not the more generalized notion of substantive due
process, must be the guide for analyzing a plaintiff’s claims.” (citations, internal
quotations, and brackets omitted)), overruled in part on other grounds as
recognized by Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2007).
Piña also argues that his risk level elevation was based on facts not found by
a jury and thus violated the Sixth Amendment. We have previously held that “the
registration provisions of [Washington’s sex offender statute] do not amount to
punishment subject to the Ex Post Facto clause,” and in doing so we applied the
factors relevant for determining whether an act constitutes punishment under the
Sixth Amendment. See Russell, 124 F.3d at 1089. Accordingly, Piña’s Sixth
Amendment claim is foreclosed by Russell.
AFFIRMED.
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