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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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

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