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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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_____________________________________
WALTER TRIPP,

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Plaintiff,
vs.
CONNIE BISBEE et al.,
Defendants.

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3:15-cv-00030-RCJ-VPC
ORDER

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Plaintiff Walter Tripp is a convicted sex offender. He sued four members of the Nevada

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Board of Parole Commissioners in this Court, claiming that they violated his rights under the

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Equal Protection Clause of the Fourteenth Amendment via their alleged policy of automatically

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denying parole to sex offenders. The Court dismissed the Complaint upon screening under 28

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U.S.C. § 1915A. Both this Court and the Court of Appeals found the appeal to be frivolous and

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therefore denied in forma pauperis status on appeal. The Court of Appeals ordered Plaintiff to

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pay the full filing fee by October 7, 2015 if he wished to proceed anyway. Plaintiff asked the

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Court to reconsider its dismissal and for leave to amend. The Court denied the motions.

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Plaintiff appealed the denial of the motion to reconsider. The Court of Appeals reversed and

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remanded, finding that Defendants were potentially amenable to injunctive relief (but not

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damages) to the extent Plaintiff did not seek a speedier release but only a new hearing free from

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any alleged constitutional infirmities. See Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005).

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The Court now reconsiders the screening order on the merits as directed by the Court of

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Appeals and dismisses. There is no fundamental right at stake, see Moor v. Palmer, 603 F.3d

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658, 662 (9th Cir. 2010) (citing Severance v. Armstrong, 620 P.2d 369, 370 (Nev. 1980)) (noting

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that there is no liberty interest in parole in Nevada), and the distinction Defendants have

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allegedly drawn (sex offenders versus non-sex offenders) does not implicate any suspect or

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quasi-suspect category of persons, so rational basis review applies. Under rational basis review,

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a court does not judge the perceived wisdom or fairness of a law, nor does it examine the actual

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rationale for the law when adopted; it asks only whether “there is any reasonably conceivable

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state of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S.

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312, 319–20 (1993) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). The

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Court agrees with other courts that have found a rational basis for treating sex offenders

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differently from non-sex offenders in the parole context due to concerns of community safety

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and recidivism. See, e.g., Gale v. Moore, 763 F.2d 341, 343–44 (8th Cir. 1985); Juarez v. Renico,

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149 F. Supp. 2d 319, 325 (N.D. Mich. 2001). The Court of Appeals has noted that in some

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contexts there is a rational basis for a state to distinguish not only between sex offenders and

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non-sex offenders, but even between very fine gradations of sex offenders such as those guilty of

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oral copulation versus sexual intercourse with minors. Jones v. Solis, 121 Fed. Appx. 228, 229–

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230 & n.2 (9th Cir. Feb. 2, 2005). Because amendment would be futile, the Court will not give

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leave to amend. There is no set of facts that will give Plaintiff a liberty interest in parole in

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Nevada, and there is no set of facts that will negate the rational basis Defendants have to treat

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sex offenders and non-sex offenders differently for the purposes of parole.

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CONCLUSION

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IT IS HEREBY ORDERED that the Complaint is DISMISSED.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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IT IS SO ORDERED.

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Dated this 4th day of January, 2016.

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_____________________________________
ROBERT C. JONES
United States District Judge

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