Tripp v. Bisbee et al
Filing
23
ORDERED that the Complaint is DISMISSED. FURTHER ORDERED that the Clerk shall enter judgment and close the case. FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Robert C. Jones on 1/4/2017. (Copies have been distributed pursuant to the NEF - DRM)
1
2
3
UNITED STATES DISTRICT COURT
4
DISTRICT OF NEVADA
5
6
7
_____________________________________
WALTER TRIPP,
8
9
10
11
Plaintiff,
vs.
CONNIE BISBEE et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
3:15-cv-00030-RCJ-VPC
ORDER
12
13
Plaintiff Walter Tripp is a convicted sex offender. He sued four members of the Nevada
14
Board of Parole Commissioners in this Court, claiming that they violated his rights under the
15
Equal Protection Clause of the Fourteenth Amendment via their alleged policy of automatically
16
denying parole to sex offenders. The Court dismissed the Complaint upon screening under 28
17
U.S.C. § 1915A. Both this Court and the Court of Appeals found the appeal to be frivolous and
18
therefore denied in forma pauperis status on appeal. The Court of Appeals ordered Plaintiff to
19
pay the full filing fee by October 7, 2015 if he wished to proceed anyway. Plaintiff asked the
20
Court to reconsider its dismissal and for leave to amend. The Court denied the motions.
21
Plaintiff appealed the denial of the motion to reconsider. The Court of Appeals reversed and
22
remanded, finding that Defendants were potentially amenable to injunctive relief (but not
23
24
1 of 3
1
damages) to the extent Plaintiff did not seek a speedier release but only a new hearing free from
2
any alleged constitutional infirmities. See Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005).
3
The Court now reconsiders the screening order on the merits as directed by the Court of
4
Appeals and dismisses. There is no fundamental right at stake, see Moor v. Palmer, 603 F.3d
5
658, 662 (9th Cir. 2010) (citing Severance v. Armstrong, 620 P.2d 369, 370 (Nev. 1980)) (noting
6
that there is no liberty interest in parole in Nevada), and the distinction Defendants have
7
allegedly drawn (sex offenders versus non-sex offenders) does not implicate any suspect or
8
quasi-suspect category of persons, so rational basis review applies. Under rational basis review,
9
a court does not judge the perceived wisdom or fairness of a law, nor does it examine the actual
10
rationale for the law when adopted; it asks only whether “there is any reasonably conceivable
11
state of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S.
12
312, 319–20 (1993) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). The
13
Court agrees with other courts that have found a rational basis for treating sex offenders
14
differently from non-sex offenders in the parole context due to concerns of community safety
15
and recidivism. See, e.g., Gale v. Moore, 763 F.2d 341, 343–44 (8th Cir. 1985); Juarez v. Renico,
16
149 F. Supp. 2d 319, 325 (N.D. Mich. 2001). The Court of Appeals has noted that in some
17
contexts there is a rational basis for a state to distinguish not only between sex offenders and
18
non-sex offenders, but even between very fine gradations of sex offenders such as those guilty of
19
oral copulation versus sexual intercourse with minors. Jones v. Solis, 121 Fed. Appx. 228, 229–
20
230 & n.2 (9th Cir. Feb. 2, 2005). Because amendment would be futile, the Court will not give
21
leave to amend. There is no set of facts that will give Plaintiff a liberty interest in parole in
22
Nevada, and there is no set of facts that will negate the rational basis Defendants have to treat
23
sex offenders and non-sex offenders differently for the purposes of parole.
24
2 of 3
CONCLUSION
1
2
IT IS HEREBY ORDERED that the Complaint is DISMISSED.
3
IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.
4
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
5
IT IS SO ORDERED.
6
Dated this 4th day of January, 2016.
7
8
9
_____________________________________
ROBERT C. JONES
United States District Judge
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
3 of 3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?