Freudenberg vs. Sakai; et al.
Filing
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ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND DAMAGES 8 . Signed by JUDGE DERRICK K. WATSON on 9/15/2014. ~ For the foregoing reasons, Freudenberg fail s to state a claim under Section 1983, and the Court GRANTS Defendants Motion to Dismiss Plaintiff's Complaint for Injunctive and Declaratory Relief and Damages. The Clerk of Court is directed to close this case. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
CIVIL NO. 14-00276 DKW-KSC
JOHN A. FREUDENBERG,
Plaintiff,
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S
COMPLAINT FOR INJUNCTIVE
AND DECLARATORY RELIEF AND
DAMAGES
vs.
THEODORE I. SAKAI; MAX OTANI;
JOHN OR JANE DOES 1-25; AND
DOE ENTITIES 1-25,
Defendants.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S COMPLAINT FOR INJUNCTIVE
AND DECLARATORY RELIEF AND DAMAGES
INTRODUCTION
State prisoner John A. Freudenberg alleges that Defendants Theodore I. Sakai
and Max Otani, acting in their individual capacities, violated 42 U.S.C. §1983 by
repeatedly denying him access to a prison work furlough program, which
Freudenberg claims is a condition precedent to his parole. Even assuming the truth
of his allegations, Freudenberg fails to state a claim under either the Eighth or
1
Fourteenth Amendment. Accordingly, his Section 1983 claim is DISMISSED with
prejudice.
BACKGROUND
Freudenberg is serving multiple terms of life imprisonment, with the
possibility of parole, and has been incarcerated since 1984 by the State of Hawaii,
Department of Public Safety (“DPS”). The Hawaii Paroling Authority (“HPA”)
reduced his minimum term to fourteen years in 1990. He became eligible for parole
in 1996 and has completed the State’s Sex Offender Treatment Program (“SOTP”)
and Behavior Modification Program. Freudenberg has been classified by DPS as a
low security risk and held in “community custody,” the lowest custody level.
Complaint ¶¶ 8-12.
Beginning in 1996, Freudenberg sought admission to the work furlough
program administered by the Corrections Division of DPS. Following his first
parole hearing on September 13, 1996, the HPA recommended that Freudenberg be
admitted to the work furlough program, and conditioned his parole on participation
in the program. In April 1997, DPS denied Freudenberg’s application for the work
furlough program without explanation. Freudenberg claims that he has appeared
before the HPA for parole sixteen times, and each time, the HPA required that he be
admitted to the work furlough program as a step towards parole. DPS
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administrators, however, have continued to deny his requests to participate in the
work furlough program, thereby preventing Freudenberg from being eligible for
parole. Complaint ¶¶ 14-18.
According to Freudenberg, he has met all written DPS requirements for work
furlough participation since 1996. He contends that DPS has nonetheless denied all
of his applications for inconsistent and pretextual reasons or without any reason. His
most recent application is still pending before DPS. Complaint ¶¶ 20-22. In an
April 16, 2013 letter, Sakai notified him that his request “remains under
consideration” because DPS is “making improvements to the program at OCCC.1
When these changes are in place, we will review your request.” Defs.’ Ex. A
(4/16/13 Letter). Otani similarly notified Freudenberg that he “will be considered
for furlough placement once staff and needed programming issues at the work
furlough program are stabilized.” Defs.’ Ex. B (8/29/13 Letter).
Freudenberg asserts that “all other inmates convicted of sexual offenses who
have successfully completed SOTP and were otherwise qualified for work furlough
have been, and continue to be, admitted to work furlough, including some inmates
who were diagnostically rated as greater risks[.]” Complaint ¶¶ 30. He alleges
1
“OCCC” refers to the Oahu Community Correctional Center located in Honolulu.
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that DPS’s denial of his work furlough applications “have effectively converted [his]
sentence to life without the possibility of parole.” Complaint ¶ 31. Freudenberg’s
complaint asserts one count under 42 U.S.C. § 1983 based on violations of his
Eighth and Fourteenth Amendment rights. Defendants seek dismissal of the
complaint with prejudice.
STANDARD OF REVIEW
Rule 12(b)(6) permits a motion to dismiss for failure to state a claim upon
which relief can be granted. Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” 555 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “[T]he tenet that a
court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to
infer “the mere possibility of misconduct” do not constitute a short and plain
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statement of the claim showing that the pleader is entitled to relief as required by
Rule 8(a)(2). Id. at 679.
DISCUSSION
42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress. . . .
To state a claim under Section 1983, a plaintiff must allege two essential elements:
(1) that a right secured by the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person acting under color of
law. West v. Atkins, 487 U.S. 42, 48 (1988). Because Freudenberg fails to identify
any federally protected right that was violated, his 42 U.S.C. § 1983 claim is fatally
flawed.2
I.
No Eighth Amendment Violation
The Eighth Amendment protects prisoners from inhumane conditions of
confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing
2
Because the Court concludes that Freudenberg fails to state a claim, and that amendment would
be futile, it does not reach Defendants’ alternative arguments regarding ripeness.
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Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Prison officials have a “duty to
ensure that prisoners are provided with adequate shelter, food, clothing, sanitation,
medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
2000) (citations omitted). To establish a violation of this duty, a prisoner must
satisfy both an objective and subjective component. See Wilson v. Seiter, 501 U.S.
294, 298 (1991). First, a prisoner must demonstrate an objectively serious
deprivation, one that amounts to the denial of “the minimal civilized measures of
life’s necessities.” Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (quoting
Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). Second, a prisoner must
demonstrate that prison officials acted with “deliberate indifference.” Wilson, 501
U.S. at 303; Johnson, 217 F.3d at 733. A prison official is liable for denying an
inmate humane conditions of confinement only if “the official knows of and
disregards an excessive risk to inmate health and safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at
837.
Even assuming the truth of Freudenberg’s allegations, the circumstances
described in the complaint do not depict cruel or unusual conditions of confinement
or any other conduct in violation of the Eighth Amendment. To the extent
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Freudenberg alleges that his continued confinement and ineligibility for parole
amount to over-detention, he likewise fails to state a claim under the Eighth
Amendment because he has not been detained beyond his life sentence. See, e.g.,
Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (“Detention beyond the
termination of a sentence could constitute cruel and unusual punishment if it is the
result of ‘deliberate indifference’ to the prisoner’s liberty interest.”); Davis v.
Oregon, 2010 WL 3259924, at *2 (D. Or. Aug. 16, 2010), aff’d, 472 Fed. Appx. 846
(9th Cir. 2012) (“To put the formula into the context of the present case, there must
be facts, viewed in the light most favorable to [plaintiff], on which a jury could find
defendants knew of a substantial risk that his release date had been miscalculated,
that they subjectively drew that inference from those facts, and still disregarded the
risk.”).
Accordingly, Freudenberg cannot state a claim under Section 1983 for
violation of the Eighth Amendment.
II.
No Fourteenth Amendment Violation
Freudenberg alleges that Defendants’ conduct violates his rights to due
process and equal protection secured by the Fourteenth Amendment. The Court
addresses each below.
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A.
Freudenberg’s Due Process Rights Were Not Violated
There is a two-step inquiry to determine whether a prisoner’s procedural due
process rights were violated. First, the Court must determine if the plaintiff
possessed a liberty or property interest with which the state interfered. See, e.g.,
Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003); Biggs v. Terhune, 334 F.3d
910, 913 (9th Cir. 2003). If the prisoner has a protected liberty or property interest
with which the state interfered, the Court must determine if the state’s action was
preceded by sufficient procedural and evidentiary safeguards. See Serrano, 345
F.3d at 1078-79.
Even assuming the truth of Freudenberg’s allegations, he fails to state a claim
because he possessed no protected liberty or property interest in participating in the
work furlough program, which he claims he needed to do in order to be eligible for
parole. Prisoners have no constitutionally protected liberty interest in their
eligibility for rehabilitative programs. See Moody v. Daggett, 429 U.S. 78, 88 n.9
(1976); Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998). Prisoners also have
no liberty or property interest in work or vocational programs. Gibson v. McEvers,
631 F.2d 95, 98 (7th Cir. 1980) (“[a]n inmate’s expectation of keeping a certain
prison job does not amount to a property or liberty interest entitled to protection
under the due process clause”); see also Baumann v. Arizona Dep’t of Corr., 754
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F.2d 841, 844 (9th Cir. 1985); Cornelio v. Hirano, 2012 WL 851642, at *6 (D. Haw.
Mar. 12, 2012) (“Plaintiff has no constitutional right to participate in a work
furlough program. . . . Thus, Plaintiff’s ineligibility for the work furlough program
and consequent ineligibility for early release does not extend his confinement in an
unexpected manner or entitle him to protections under the Due Process Clause
itself.”).
Similarly, prisoners have no federal constitutional right to parole.
Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 7–11
(1979); Kula v. Malani, 2007 WL 2874839, at *2 (D. Haw. Sept. 27, 2007).3
Freudenberg, therefore, has no constitutionally protected liberty interest entitling
him to participate in any work furlough program or to parole. To the extent
Freudenberg attempts to state a claim based on a right to be eligible for parole, he
cites no authority for this as-yet unrecognized right, and the Court declines to imply
one in the face of the authority discussed above.
3
It is well-settled that an inmate in Hawaii has no right to parole—“[t]here is no right under the
Federal Constitution to be conditionally released before the expiration of a valid sentence,”
Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859, 862 (2011) (per curiam); Greenholtz v.
Nebraska, 442 U.S. 1, 7 (1979), and Hawaii’s parole statute does not create a liberty interest in
parole. See Ramsay v. Haw. Paroling Auth., 2012 WL 518486, *4 (D.Haw. Feb. 14, 2012);
Regan v. Hawaii, 2007 WL 4440956, at *2 (D. Haw. Dec. 19, 2007); Wilkinson v. Austin, 795 F.
Supp. 1020, 1024 (D. Haw. 1992).
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Likewise, Freudenberg has no protected, state-created liberty interest here.
State law creates a liberty interest only when the deprivation in question (1) restrains
the inmate’s freedom in a manner not expected from their sentence and (2) “imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents
of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). The Ninth Circuit
has held that Hawaii’s prison regulations and policies do not create a protected
liberty interest in parole. Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997);
see also Olim v. Wakinekona, 461 U.S. 238, 249-51 (1983). In addition, under
Sandin, the denial of access to rehabilitative programs or work furlough neither
restrains Freudenberg’s freedom in a manner not expected from his
sentence nor imposes an atypical and significant hardship in relation to the ordinary
incidents of prison life.
Freudenberg, therefore, has no protected, state-created liberty interest in any
of his claims, and fails to state a claim under the Fourteenth Amendment’s Due
Process Clause.
B.
Freudenberg’s Equal Protection Rights Were Not Violated
As a general matter, “[t]o state a claim under 42 U.S.C. § 1983 for a violation
of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show
that the defendants acted with an intent or purpose to discriminate against the
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plaintiff based upon membership in a protected class.” Barren v. Harrington, 152
F.3d 1193, 1194 (9th Cir. 1998)). But, “[w]hen an equal protection claim is
premised on unique treatment rather than on a classification, the Supreme Court has
described it as a ‘class of one’ claim.” N. Pacifica LLC v. City of Pacifica, 526 F.3d
478, 486 (9th Cir. 2008). Freudenberg attempts to allege such a claim here.
“In order to claim a violation of equal protection in a class of one case, the
plaintiff must establish that the [defendant] intentionally, and without rational basis,
treated the plaintiff differently from others similarly situated.” Id. A class-of-one
plaintiff must also show that the difference in treatment resulted from
non-discretionary state action. Engquist v. Oregon Dep’t of Agriculture, 553 U.S.
591, 603 (2008). The Engquist court held that where an equal protection claim is
based on a government action that requires subjective and individualized
assessments, that different treatment is an accepted consequence of the discretion
granted. Engquist, 553 U.S. at 592. The Supreme Court explained as follows:
There are some forms of state action, however, which by their
nature involve discretionary decisionmaking based on a vast
array of subjective, individualized assessments. In such cases
the rule that people should be “treated alike, under like
circumstances and conditions” is not violated when one person is
treated differently from others, because treating like individuals
differently is an accepted consequence of the discretion granted.
In such situations, allowing a challenge based on the arbitrary
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singling out of a particular person would undermine the very
discretion that such state officials are entrusted to exercise.
Id.; see also Sloup v. Loeffler, 2008 WL 3978208, at *15 (E.D.N.Y. Aug. 21, 2008)
(“the Supreme Court recently clarified the Olech holding by limiting class of one
claims in contexts characterized by individualized and subjective determinations”)
(internal quotation omitted).
Courts have found a wide array of conduct by government actors to involve
subjective, individualized determinations. See, e.g., Flowers v. City of
Minneapolis, 558 F.3d 794, 799-800 (8th Cir. 2009) (concluding that “a police
officer’s decisions regarding whom to investigate and how to investigate are matters
that necessarily involve discretion,” and thus “they may not be attacked in a
class-of-one equal protection claim”)); United States v. Moore, 543 F.3d 891, 901
(7th Cir. 2008) (rejecting application of “class of one” equal protection theory to
prosecutorial discretion, because “the discretion conferred on prosecutors in
choosing whom and how to prosecute is flatly inconsistent with a presumption of
uniform treatment”); Contasti v. City of Solana Beach, 2014 WL 60005, at *7 (S.D.
Cal. Jan. 6, 2014) (concluding “that the City Council’s decision to deny Plaintiff’s
development review permit by its nature ‘involve[d] discretionary decision making
based on . . . subjective, individualized assessments,’ and therefore, cannot
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constitute an equal protection violation”) (citations omitted); Papas v. Leonard,
2012 WL 1445853, at *17 (D. Or. Apr. 25, 2012) (finding that plaintiffs’ challenge
to discretionary code enforcement decisions did not state cognizable class of one
claim); Adams v. Meloy, 287 Fed. Appx. 531, 534 (7th Cir. 2008) (rejecting
application of “class of one” equal protection theory to parole board decisions).
In the present case, the decision regarding whether an inmate is suitable to be
released into the community as part of a work furlough program necessarily involves
a case-by-case determination, discretionary decisionmaking, and subjective,
individualized assessments. That is particularly so where, as here, the inmate is a
sex offender and has committed sex-related offenses resulting in the imposition of
multiple life sentences. The Court finds it difficult to envision any scenario where
such a release decision could be made with something other than an individualized,
subjective, and discretionary assessment. Indeed, Freudenberg’s class of one claim
fails because Defendants’ inherent discretion in administering the work furlough
program necessitates that some prisoners will receive more favorable treatment than
others, and allowing the type of Equal Protection challenge asserted here would
undermine the very discretion that DPS officials are entrusted to exercise. See
Engquist, 553 U.S. at 603.
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CONCLUSION
For the foregoing reasons, Freudenberg fails to state a claim under Section
1983, and the Court GRANTS Defendants’ Motion to Dismiss Plaintiff’s
Complaint for Injunctive and Declaratory Relief and Damages. The Clerk of Court
is directed to close this case.
IT IS SO ORDERED.
DATED: September 15, 2014 at Honolulu, Hawai‘i.
John A. Freudenberg v. Theodore I. Sakai, et al.; Civil No. 14-00276 DKW-KSC;
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S COMPLAINT FOR INJUNCTIVE AND DECLARATORY
RELIEF AND DAMAGES
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