Peterson v. Reinke et al

Filing 29

MEMORANDUM DECISION AND ORDER. It is ORDERED that Defendants' Motion for Summary Judgment (Dkt. 22 ) is GRANTED, and Plaintiff's claims are DISMISSED with prejudice. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

STEVEN A. PETERSON,
Plaintiff,
vs.

Case No. 1:14-cv-00477-CWD
MEMORANDUM DECISION
AND ORDER

HENRY ATENCIO, et al.,
Defendants.

On March 27, 2017, the Court denied without prejudice Defendants’ Motion for
Summary Judgment because the Court did not have sufficient factual information to grant
or deny the Motion. (Dkt. 22.) The Court permitted the parties to file supplemental
briefing to address several questions regarding the facts underlying the due process
claims. First, where an offender’s crime lies outside Idaho Code § 18-8304 (outlining
those crimes subject to the Sex Offender Registry Act), can the Idaho Commission of
Pardons and Parole (ICPP) require a parolee to register as a sex offender? Second, did the
ICPP mistakenly conclude in the June 5, 2013 hearing minutes that the registration
requirement applies to Plaintiff?
Defendants provide the following facts to supplement their Motion for Summary
Judgment. Idaho Code § 18-8304 alone dictates which crimes are subject to the Act. If

MEMORANDUM DECISION AND ORDER - 1

the crime is not included in the statutory list, sex offender registration cannot be required.
Plaintiff’s crimes are not among those listed in the statute; therefore, he is not required to
register. Plaintiff’s (and the Court’s) assumption that the words in the minutes from
Plaintiff’s parole hearing—“You must register as a sex offender as dictated by law,”—
meant that Plaintiff must register as a sex offender is mistaken. Defendants explain that
this is simply a generic statement included in the minutes that may or may not apply to a
parolee. The term “as dictated by law” means “if dictated by law.” In other words, if a
conviction is for a crime specified in the statute, then registration is required, because it is
“dictated by law.” That is fairly clear where a parolee has been convicted of one of the
listed crimes. However, it is somewhat ambiguous and confusing for the ICPP to use the
same language in a situation like Plaintiff’s—where the crime is not listed, but yet has a
sexual component to it. The ICPP intends that such persons simply disregard that
statement, because they are not required to register, as it is not “dictated by law.”
The use of this ambiguous term, especially in a hybrid setting like Plaintiff’s, is
confusing. Nevertheless, because the term does not mean what Plaintiff and the Court
thought it meant, but it, in fact, means the opposite for Plaintiff, whose crime is not
among those for which registration is “dictated by law,” then Defendants have shown that
there is no genuine factual dispute before the Court and that they are entitled to judgment
as a matter of law. To clarify, Plaintiff is not required to register as a sex offender.
The Court will not re-address Plaintiff’s argument that his constitutional rights are
or will be violated by a requirement that he attend sex offender treatment. The
Constitution is not concerned with whether Defendants have wrongly assessed him
MEMORANDUM DECISION AND ORDER - 2

according to the “STATIC assessment instrument.” In any event, the Court agrees with
Defendants’ assertion that the STATIC assessment coding rules provide that it is
appropriate for an offense that is “not … called ‘sexual’ in its legal title or definition,”
but that “directly involve illegal sexual behavior” such as a “Break-&-Enter [conviction]
when [an offender] was really going in to steal dirty underwear to use for fetishistic
purposes.” (Dkt. 27-1, p. 16.)
Plaintiff’s crimes seem to indicate that he cannot control his fetish for stealing
women’s underwear from their homes, which is a serious crime against the community. It
is unclear why Plaintiff would not acquiesce and attend every possible rehabilitative
program available to him to increase his chances of success in his next attempt at parole.
However, parole is not a right or a requirement. Plaintiff is free to reject that path, bypass
an opportunity for parole, and serve out his sentence. Because Plaintiff has not shown
that his constitutional rights have been violated, his case is subject to dismissal with
prejudice.
ORDER
IT IS ORDERED that Defendants’ Motion for Summary Judgment (Dkt. 22) is
GRANTED, and Plaintiff’s claims are DISMISSED with prejudice.
DATED: August 16, 2017

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 3