Israel v. Worrall et al

Filing 16

ORDER: RE 15 Motion for Reconsideration is DENIED. (See order for full details). Signed by Judge Timothy M. Burgess on 12/16/2014. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ADAM ISRAEL,
Plaintiff,
vs.
DR. WORRAL, et al.,
Defendants.

Case No. 3:14-cv-00158-TMB

ORDER DENYING MOTION FOR RECONSIDERATION
Adam Israel, representing himself, filed a Prisoner’s Civil Rights Complaint
under 42 U.S.C. § 1983. 1 After the Court reviewed the Complaint, as required
under 28 U.S.C. § 1915, 2 Israel informed that Court that it misinterpreted his
case:
The court has misconstrued Israel’s complaint as an alleged Due
Process violation by Alaska Department of Corrections for
involuntarily medicating him [Docket 1@1-2]: The medical
malpractice claim outlined in his complaint alleges that he was
falsely diagnosed with a severe mental illness, which restricts
access to rehabilitative programming, and adversely affects his
1
2

Docket 1.

Docket 7 at 1-2 (“Adam Israel, representing himself, has filed a Prisoner’s Civil
Rights Complaint under 42 U.S.C. § 1983, alleging that he is being involuntary
medicated. The Complaint, liberally construed, appears to state a plausible claim of
the violation of Israel’s right to Due Process, in violation of the United States
Constitution.”) (citations omitted); see also United States v. Loughner, 672 F.3d 731,
744 (9th Cir. 2012) (Prisoners possess “a significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs under the Due Process Clause of the
Fourteenth Amendment.”) (quoting Washington v. Harper, 494 U.S. 210, 221-22
(1990)) (internal quotation marks omitted).

chances for discretionary parole [Docket 1@3]. The treatment of
such an illness by administration of psychotropic medication,
involuntarily or otherwise, is unwarranted. But Israel has not claimed
to be medicated “without his permission” at the present time, or that
it was the result of any procedural violation. The diagnosis of
paranoid schitzophrenia [sic] itself is in effect a sentence
condemning him, and there is no other process by which it may be
reviewed for its rationale or factual basis.
...
The sole purpose of this action is to refute the diagnosis by proving
that it is unfounded. 3
Because this Court has no jurisdiction over a medical malpractice action, 4 Israel’s
case was dismissed. 5
Israel now moves for reconsideration of the dismissal:
Israel notified the court that it had misconstrued his complaint as an
allegation that he was being involuntarily medicated without Due
Process. Israel reiterated his position, describing the action as an
allegation of medical malpractice (1), which affects his liberty
interest: the unsubstantiated diagnosis of Paranoid Schitzophrenia
[sic] changes his status by restricting access to rehabilitative
programming (2), and negatively affects his chances for
discretionary parole (3). . . .
The diagnosis is at the heart of the issue. There is no process to
challenge their decision within the department or through any State
regulatory authority. The cumulative effects of their actions therefore
violates Israel’s Constitutional rights.

3

Docket 9 at 1-2 (footnotes omitted).

4

See, e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice does not
become a constitutional violation merely because the victim is a prisoner.”); Neitzke v.
Wiliams, 490 U.S. 319, 321-22 (1989) (“Insofar as Williams claimed deficient medical
care . . . [he] described a constitutionally noncognizable
medical malpractice.”).
5

Docket 13.

3:14-cv-00158-TMB, Israel v. Worral, et al.
Order Denying Reconsideration
Page 2 of 5

{ "pageset": "Sf5b

instance of

Israel does assert a Due Process violation (4), but not in the
particular respect that the court had interpreted it to be. The false
diagnosis is being used to inflict punishment, without Due Process. 6
Israel thus claims that medical malpractice – the “unsubstantiated
diagnosis of paranoid schizophrenia” – “is at the heart of the issue,” from which
stems (1) the violation of his current right to rehabilitation, and also (2) affects his
future chances for discretionary parole. But there is no federal constitutional right
to rehabilitation, 7 and Israel’s due process claim with respect to the possibility of
future discretionary parole is not ripe, 8 and is unlikely to succeed. 9

6

Docket 15 at 1-2 (emphasis added).

7

Coakley v. Murphy, 884 F.2d 1218, 1221 (9th Cir. 1989) (The “claim . . . lacks
substance in law and fact because there is no constitutional right to rehabilitation.”)
(citations and internal quotation marks omitted); Rizzo v. Dawson, 778 F.2d 527, 531
(9th Cir. 1985) (“If the plaintiff’s due process claim hinges on a property interest in the
vocational instruction course, his claim similarly lacks substance in law and fact
because there is no constitutional right to rehabilitation. . . . Therefore, no protected
interest has been alleged and no due process claim can stand.”) (citation omitted); see
also Galen v. County of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007) (§ 1983 does
not provide a cause of action for violations of state law).

8

Once ripe, and if necessary, Israel may file a petition under 28 U.S.C. § 2254.
See Panetti v. Quarterman, 551 U.S. 930, 945-46 (2007); United States v. Buenrostro,
638 F.3d 720, 725 (9th Cir. 2011) (“A prisoner whose conviction and sentence were
tested long ago may still file petitions relating to denial of parole, revocation of a
suspended sentence, and the like because such claims were not ripe for adjudication at
the conclusion of the prisoner’s first federal habeas proceeding.”) (citations omitted).
9

See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1,
11-12 (1979) (Nebraska’s statute “provides in part: ‘Whenever the Board of Parole
considers the release of a committed offender who is eligible for release on parole, it
shall order his release unless it is of the opinion that his release should be deferred
because [one of four enumerated factors exists].’ . . . [T]his statute has unique structure
and language and thus whether any other state statute provides a protectible
entitlement must be decided on a case-by-case basis.”); Miller v. Oregon Bd. of Parole
and Post Prison Supervision, 642 F.3d 711, 714-15 (9th Cir. 2011) (“If there is any right

3:14-cv-00158-TMB, Israel v. Worral, et al.
Order Denying Reconsideration
Page 3 of 5

Because the crux of the complaint addresses state court issues, the
Motion for Reconsideration will be denied. Israel may, however, bring his
medical malpractice claim, as well as his claim regarding rehabilitation, 10 in the
state courts. 11

to release on parole, or to release in the absence of some evidence of future
dangerousness, it has to arise from substantive state law creating a right to release. . . .
A state parole statute establishes a protected liberty interest in parole when it uses
language that creates a presumption that the prisoner will be paroled if certain
conditions are satisfied. The Nebraska parole statute in Greenholtz provided:
‘Whenever the Board of Parole considers the release of a committed offender who is
eligible for release on parole, it shall order his release unless it is of the opinion that his
release should be deferred because [one of four enumerated factors exists].’ . . . The
{ "pageset": "S76

Court reasoned that this language created an ‘expectancy of
Supreme
release’ that was ‘entitled to some measure of constitutional protection.’”) (emphasis
added) (quoting, inter alia, Greenholtz, 442 U.S. at 11-12). Alaska’s statute, however,
does not contain mandatory language directing the parole board to grant discretionary
parole under certain circumstances. Instead, AS 33.16.130 provides as follows:
(a) A prisoner eligible for discretionary parole may apply to the board for
discretionary parole. As part of the application for parole, the prisoner
shall submit to the board a parole release plan that includes the prisoner’s
plan for employment, residence, and other information concerning the
prisoner's rehabilitative plans if released on parole.
(b) Before the board determines a prisoner’s suitability for discretionary
parole, the prisoner is entitled to a hearing before the board. The prisoner
shall be furnished a copy of the preparole reports listed in AS 33.16.110,
and permitted access to all records that will be considered by the board in
making its decision except those that are made confidential by law. The
prisoner may also respond in writing to all materials considered by the
board, be present at the hearing, and present evidence to the board.
(c) The board shall issue its decision in writing and provide the basis for a
denial of discretionary parole. A copy of the decision shall be provided to
the prisoner.
10

See Adkins v. Stansel, 204 P.3d 1031, 1033 (Alaska 2009) (“Article I, section 12 of
the Alaska Constitution provides prisoners a fundamental rehabilitation right.”) (citation
omitted).
11

See Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881, 886 (Alaska 2004) (The
applicable two-year statute of limitations may be equitably tolled when a plaintiff “‘has
3:14-cv-00158-TMB, Israel v. Worral, et al.
Order Denying Reconsideration
Page 4 of 5

IT IS THEREFORE ORDERED that the Motion for Reconsideration, at
Docket 15, is DENIED.
Dated at Anchorage, Alaska this 16th day of December, 2014.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
U.S. DISTRICT JUDGE

more than one legal remedy available to him’ . . . The statute of limitations is thus tolled
during the pendency of the initial defective action, giving the plaintiff the full statutory
period to file once tolling ceases. In such circumstances, the statute is equitably tolled if
‘(1) pursuit of the initial remedy gives defendant notice of plaintiff’s claim,
(2) defendant’s ability to gather evidence is not prejudiced by the delay, and (3) plaintiff
acted reasonably and in good faith.’”) (citations omitted).
3:14-cv-00158-TMB, Israel v. Worral, et al.
Order Denying Reconsideration
Page 5 of 5