Banks v. Reinke et al

Filing 40

MEMORANDUM DECISION AND ORDER granting 28 Motion to Dismiss for Failure to State a Claim. Plaintiff's Amended Complaint are dismissed without prejudice. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DEWAYNE BANKS,
Case No. 1:11-cv-00432-EJL
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.

BRENT REINKE, SHANE EVANS,
RENAE L.P. JAMES, TIMOTHY
WENGLER, OLIVIA CRAVEN, MARK
FUNAIOLE, JANIE DRESSEN,
NORMAN LANGERAK II, MIKE
MATHEWS, and BILL YOUNG,
Defendants.

Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s First
Amended Complaint, with a Response and Reply filed. (Dkt. 28, 30, 32.) After reviewing
the briefing, the Court requested that the parties file supplements regarding the facts and
the law. (Dkt. 37.) Those Supplements have been filed. (Dkt. 38, 39.) Having reviewed
the record, the Court has determined that oral argument is unnecessary. Accordingly, the
Court enters the following Order.

MEMORANDUM DECISION AND ORDER - 1

DEFENDANTS’ MOTION TO DISMISS
1.

Standard of Law
A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim

when, based on the allegations in the complaint, it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim that would entitle him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). In the Rule 12(b) context, all allegations of material
fact are taken as true and construed in a light most favorable to the nonmoving party.
Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). In addition, all reasonable
inferences are to be drawn in the nonmovant’s favor. Cahill v. Liberty Mut. Ins. Co., 80
F.3d 336, 338 (9th Cir. 1996). Dismissal may be granted where there is no cognizable
legal theory or insufficient facts to support a cognizable legal claim. Balistreri v. Pacifica
Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).
To determine a motion to dismiss for failure to state a claim, the court generally
may not consider materials outside the complaint and pleadings. See Cooper v. Pickett,
137 F.3d 616, 622 (9th Cir. 1997). However, the court may consider attachments to the
complaint and documents referred to in (but not attached to) the complaint, where the
authenticity of such document is not in question. Id. at 622-23. A court may also take
judicial notice of matters of its own records, In re Korean Air Lines Co., Ltd., Antitrust
Litigation, 642 F.3d 685, 689 n.1 (9th Cir. 2011), and public records, such as records and
reports of administrative bodies. Barron v. Reich, 13 F.3d 1370 (9th Cir. 1994).

MEMORANDUM DECISION AND ORDER - 2

2.

Background
Plaintiff, a three-time convicted felon, is now on parole, but he remains under a

sentence of 10 years to life for a conviction of robbery from a state court judgment of
December 15, 2000.1 Plaintiff was convicted of felony rape in 1978, for which he served
a sentence of 7 years, finishing in 1983. Plaintiff also was previously convicted of a
felony offense of sexual intercourse with a female under the age of eighteen in 1985, for
which the sentence was satisfied in 1992.
At the time he filed his Complaint in this action, Plaintiff was an inmate in the
custody of the Idaho Department of Correction (IDOC). He alleges that, in the course of
his parole eligibility proceedings, Defendants violated his constitutional rights. After
screening of this matter by the Court, Plaintiff was permitted to proceed only on his ex
post facto and his double jeopardy claims against Defendant Brent Reinke, Director of the
IDOC, and Olivia Craven, Executive Director of the Idaho Commission of Pardons and
Parole (ICPP), in their official capacities. (Dkt. 13, 20.)
3.

Discussion
A.

Ex Post Facto and Double Jeopardy Claims: Retroactive Application of
I.C. § 20-223, the Sex Offender Treatment Program, and Parole
Conditions Related to Sex Offenses

While in prison, Plaintiff sought to become eligible for parole, but, because he was
serving a current sentence for robbery (not a sex offense), he disagreed with the ICPP and
prison officials that he should have to fulfill conditions applicable to sex offenders
1

See https://www.idcourts.us/repository/caseHistory.

MEMORANDUM DECISION AND ORDER - 3

(including undergoing a psychological examination and completing the Sex Offender
Treatment Program (SOTP)), even though he had two previous sex offenses on his
record. In 2009, Plaintiff refused to complete these conditions; as a result, he was denied
parole. During the pendency of this suit and under protest, Plaintiff completed the SOTP,
took a polygraph examination, and now complies with additional parole conditions
applicable under an SOTP. (Dkt. 39.) He contends that all of these conditions amount to
an ex post facto violation and a double jeopardy violation.2
The statute at issue, Idaho Code § 20-223(b), was enacted in 1980, well before
Petitioner was sentenced for his robbery conviction in 2000. See I.C. § 20-223, as added
by 1980, ch. 297, § 6, p. 768. Plaintiff’s claims center on the fact that one of his sex
crimes was committed prior to the enactment of the statute.
The ex post facto prohibition of the United States Constitution “forbids the
Congress and the States to enact any law which imposes a punishment for an act which
was not punishable at the time it was committed; or imposes additional punishment to that
then prescribed.” Weaver v. Graham, 450 U.S. 24, 28 (1981) (internal citations and
punctuation omitted). U.S.Const., Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. This prohibition
applies to administrative regulations promulgated pursuant to statutory authority. See
Garner v. Jones, 529 U.S. 244, 250 (2000).

2

For purposes of this claim, the Court assumes, without deciding, that Plaintiff’s claims are
capable of repetition, yet evading review, and thus can be heard as an exception to the mootness doctrine.
Jackson v. California Dept. of Mental Health, 399 F.3d 1069, 1072-73 (9th Cir. 2005).
MEMORANDUM DECISION AND ORDER - 4

Plaintiff alleges that application of Idaho Code § 20-223 to his parole eligibility
status for his robbery conviction amounts to an ex post facto violation. Particularly, I.C.
§ 20-223(b) provides:
No person serving a sentence for rape, incest, committing a lewd act upon a
child, crime against nature, or with an intent or an assault with intent to
commit any of the said crimes or whose history and conduct indicate to the
commission that he is a sexually dangerous person, shall be released on
parole except upon the examination and evaluation of one (1) or more
psychiatrists or psychologists or mental health professionals designated for
this purpose by the department of correction to be selected by the
commission and such evaluation shall be duly considered by the
commission in making its parole determination. The commission may, in its
discretion, likewise require a similar examination and evaluation for
persons serving sentences for crimes other than those above enumerated.
Plaintiff’s allegations fail to state a claim for several apparent reasons. First, the
statute “does not impose punishment.” Kansas v. Hendricks, 521 U.S. 346, 370 (1997). In
Hendricks, the United States Supreme Court concluded that it was not an ex post facto
violation to take past criminal behavior into account when determining whether a person
should be involuntarily committed under the Kansas Sexually Violent Predator Act;
involuntary civil commitment is not “tantamount to ‘punishment,’” the Court concluded.
Id. at 369.
Similarly, Plaintiff has not pointed to a punitive purpose in Idaho Code § 20223(b), nor has he included sufficient allegations to show that its application to him
amounts to punishment any greater than his current life sentence.

MEMORANDUM DECISION AND ORDER - 5

The Idaho Court of Appeals rejected a similar argument in Mellinger v. Idaho
Department of Corrections, 757 P.2d 1213 (Idaho Ct. App. 1988), concluding that harsh
parole conditions under the “Intensive Supervision Program” (ISP) did not amount to an
additional punishment or penalty, such that an ex post facto violation would occur:
We now examine whether the ISP is a law ex post facto. As a preliminary
matter, we again emphasize the nature of parole in Idaho. It has been said
that parole “is not a matter of right or privilege. It is a matter of grace or
clemency only.” Because parole is a “gratuity,” it will be ordered only for
the best interests of society when the Commission believes the prisoner no
longer poses a threat to society and is able and willing to fulfill the
obligations of a law abiding citizen. I.C. § 20–223. The interests of society
are best served when a parolee’s assimilation into society is structured and
supervised. The conditions fashioned for the parolee’s rehabilitative needs
provide the structure. Supervision is the means for measuring rehabilitative
progress. Adherence to the parole plan not only protects a parolee’s limited
liberty but demonstrates his ability and willingness to fulfill the obligations
of a law abiding citizen.
Parole conditions are not additional punishments or penalties to the crime
for which a person was sentenced and incarcerated. The conditions provide
the structure necessary to assist a parolee’s rehabilitation. Their violation
may simply result in the loss of parole. Consequently, implementation of
the ISP in Mellinger’s case did not violate the ex post facto prohibition.
Id., at 1217-18 (internal citations omitted).
While not a case of precedent binding on this Court, Mellinger has a wellreasoned outcome. The Court adopts the reasoning as grounds for concluding that
Plaintiff has failed to state allegations showing that applying the parole conditions
statute to him is additional punishment.

MEMORANDUM DECISION AND ORDER - 6

The second reason Plaintiff’s allegations fail to state an ex post facto claim is
that the statute “does not have retroactive effect.” Hendricks, 521 U.S. at 371.
Discussing the involuntary commitment statute, the United States Court explained:
[T]he Act permits involuntary confinement based upon a
determination that the person currently both suffers from a “mental
abnormality” or “personality disorder” and is likely to pose a future
danger to the public. To the extent that past behavior is taken into account,
it is used, as noted above, solely for evidentiary purposes. Because the Act
does not criminalize conduct legal before its enactment, nor deprive
Hendricks of any defense that was available to him at the time of his
crimes, the Act does not violate the Ex Post Facto Clause.
521 U.S. at 371.
Similarly, here, Idaho Code § 20-223(b) simply requires a psychological
assessment of a convicted felon’s criminal history to determine whether he poses a risk
of harm to society before he can be released on parole. Plaintiff’s sex crime convictions
were in 1978 and 1985; therefore, the 1980 statute was in effect prior to the 1985
conviction, but after the 1978 conviction. Regardless, because the earlier crimes are
being used for evidentiary purposes only, the only conviction at issue for the ex post
facto analysis is the 2000 robbery conviction, which occurred well after the statute was
enacted in 1980.
As to Plaintiff’s claim that requiring him to complete an SOTP is an ex post facto
violation, the United States Court of Appeals for the Ninth Circuit has decided that the
reasoning of Kansas v. Hendricks “translates wholesale to the ex post facto analysis” of
a statutorily-mandated SOTP in Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir. 1997).

MEMORANDUM DECISION AND ORDER - 7

There, the Court held that the requirement that convicted felons participate in a Sex
Offender Treatment Program that was established by statute after the felons’
convictions was not an ex post factor violation. The SOTP required all sex offenders,
who had been convicted of a sex offense “at any time,” to complete the SOTP prior to
parole. Id. at 822. The Ninth Circuit concluded: “If involuntary confinement in a
‘treatment facility’ for an indefinite period of time beyond the inmate’s original
sentence is not punishment, then it is certainly not punishment to deny an inmate
eligibility for parole following his classification as a sex offender so that he can
participate in a treatment program.” Id. at 827.
The ex post facto claim of Mr. Neal failed because the Ninth Circuit relied on the
Hendricks conclusion that “mandatory treatment programs following an inmate’s
classification as a sex offender based on conduct which occurred prior to the program's
beginning do not violate the Ex Post Facto Clause.” Id. Likewise, simply because
Plaintiff is not being held on a sex offense at this time does not mean that requiring him
to complete a SOTP based on evidence that he committed sex offenses in his past is
punishment.
Finally, Plaintiff’s argument that I.C. § 20-223(b) simply does not apply to his
robbery conviction is dispelled by reviewing the plain language of the statute. First, the
statute expressly authorizes its use for inmates “whose history and conduct indicate to
the commission that he is a sexually dangerous person.” Plaintiff has two sex crimes in

MEMORANDUM DECISION AND ORDER - 8

his past, although his current crime is robbery. Second, the statute authorizes its use for
“for persons serving sentences for crimes other than those above enumerated.” I.C.
§ 20-223(b). Plaintiff has not sufficiently alleged facts showing that the statute would
not apply under one of these two provisions.
Plaintiff’s current arguments set forth in his supplement do not make a difference
to the ex post facto analysis above. Plaintiff alleges that he was “forced” to take a sex
offender polygraph test because of the past sexual crimes history and “forced” to be
under the supervision of a parole officer who supervises sex offenders, as part of an
ongoing SOTP. (Dkt. 39.) He must “check in” regularly at Sane Solutions, and he has to
submit a monthly treatment log and a weekly contact log. (Id.) Because the ICPP may
require Plaintiff to comply with any reasonable parole terms that are designed to protect
the safety and security of the public if he wishes to be granted parole, and precedent
dictates that such requirements do not amount to “punishment,” Plaintiff has not stated
an ex post facto claim based on these allegations. Plaintiff is not forced to accept these
conditions; the alternative is that Plaintiff is free to remain in prison, where he has no
access to the general public, rather than accept parole.
Accordingly, Plaintiff has stated no set of facts that amounts to an ex post facto
violation in his pleadings. His parole conditions are not punitive, his past sex crimes are
being used for evidentiary purposes, and the statute is not being retroactively applied, as
his robbery conviction occurred after adoption of the statute. To the extent that Plaintiff

MEMORANDUM DECISION AND ORDER - 9

is asserting that these same facts state a claim under the Double Jeopardy Clause, that
argument fails as well, because the parole conditions are not punitive, an essential
element of a double jeopardy claim. See Hendricks, 521 U.S. at 348. As a result, these
claims will be dismissed with prejudice.
B.

Sex Offender Registration: Ex Post Facto and Double Jeopardy

Plaintiff also alleged that requiring him to register as a sex offender is an ex post
facto violation and placed him in double jeopardy, because the registration statute was
adopted after the sex crimes were committed, and he has already served his entire
sentences for his 1978 and 1985 sex offenses. Idaho Code § 18-831 through 18-8328,
known as the “Sex Offender Registration Notification and Community Right to Know
Act” (SORA) became effective on July 1, 1993.
Idaho Code § 18-8304(1)(c) provides that sex offender registration is required of
any person who:
Pleads guilty to or has been found guilty of a crime covered in this
chapter prior to July 1, 1993, and the person, as a result of the offense, is
incarcerated in a county jail facility or a penal facility or is under
probation or parole supervision, on or after July 1, 1993.
Plaintiff also argued that SORA simply did not apply to him. In its preliminary
review of this case, the Court agreed with Plaintiff that it appeared his current
conviction was beyond the reach of SORA, because he was not currently incarcerated
for a sex offense. (Dkt. 37.) At that point, Defendants’ position was unclear.

MEMORANDUM DECISION AND ORDER - 10

In their supplemental briefing, the parties agree that Plaintiff was not, and is not,
subject to SORA, including its registration requirements. The Court grants Defendants’
request to take judicial notice of the registry information contained on the Idaho State
Police’s webpage, showing that Plaintiff is not listed as a sex offender on the SORA
webpage. (Dkt. 38-1, Exhibit A.) See Fed. F. Civ. P. 201.
Because Plaintiff is not, and was not, required to register under SORA, he is
without standing to assert claims for declaratory and injunctive relief that Defendants’
application of SORA to him violates his rights under the Ex Post Facto and Double
Jeopardy Clauses. The United States Supreme Court has explained that the standing
doctrine “functions to ensure, among other things, that the scarce resources of the
federal courts are devoted to those disputes in which the parties have a concrete stake.”
Friends of the Earth, 528 U.S. 167, 191 (2000). “[I]f a plaintiff lacks standing at the
time the action commences, the fact that the dispute is capable of repetition yet evading
review will not entitle the complainant to a federal judicial forum.” Id.
Accordingly, the Court concludes that Plaintiff lacks standing to assert any
claims under SORA, and they are subject to dismissal without prejudice for lack of
jurisdiction.
4.

Conclusion
The Court finds and concludes that no discovery or additional facts are necessary

to resolve the claims in Plaintiff’s First Amended Complaint, and that permitting
additional amendments would be futile. Plaintiff’s ex post facto claim regarding Idaho
MEMORANDUM DECISION AND ORDER - 11

Code § 20-223(b) and the SOTP (including parole eligibility and current parole
conditions) fails to state a claim upon which relief can be granted, and it will be
dismissed with prejudice. The same result occurs if Plaintiff’s claim is construed under
the Double Jeopardy Clause. Plaintiff lacks standing to assert an ex post facto claim and
double jeopardy claim regarding Idaho Code § 18-831 through 18-8328 (SORA), and
these claims will be dismissed without prejudice.
ORDER
IT IS ORDERED:
1.

Defendants’ Motion for Summary Dismissal (Dkt. 28) is GRANTED.

2.

Plaintiff’s Amended Complaint and this entire action are DISMISSED.
Plaintiff’s ex post facto and double jeopardy claims regarding Idaho Code
§ 20-223(b) and the Sex Offender Treatment Program (including parole
eligibility and parole conditions) fail to state a claim upon which relief
can be granted and are dismissed with prejudice. Plaintiff lacks standing
to assert an ex post facto claim and double jeopardy claim regarding Idaho
Code § 18-831 through 18-8328 (SORA), and these claims are dismissed
without prejudice.
DATED: July 17, 2013

Honorable Edward J. Lodge
U. S. District Judge
MEMORANDUM DECISION AND ORDER - 12