Ferry v. Doohan et al

Filing 22

OPINION & ORDER: The Court GRANTS Defendant Wu's Motion for Dissolution of Temporary Restraining Order (ECF No. 11) and the Washington County Defendants' Motion for Dissolution of Temporary Restraining Order(ECF No. 13) and DISSOLVES the Temporary Restraining Order, and the Court DENIES Plaintiff's request for Preliminary Injunction. Signed on 3/6/2018 by Judge Marco A. Hernandez. (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RICHARD FERRY,
Case No. 3:18-cv-00153-AC
Plaintiff,
OPINION AND ORDER
v.
KEVIN DOOHAN, Washington County
Community Corrections (WCCC)
Post-Prison Supervision Officer;
JOE SIMICH, WCCC, Assistant
Director; STEVE BERGER, WCCC
Director; MICHAEL WU, Oregon
Board of Parole and Post-Prison
Supervision (BPPPS), Chair;
and JOHN AND JANE DOES, 1-20,
Defendants.
HERNANDEZ, Judge.
Plaintiff brings this civil rights action pro se. Currently before the Court is the matter of the
Temporary Restraining Order (ECF No. 5) Plaintiff’s request for preliminary injunction (ECF No.
1), Defendant Michael Wu’s Motion for Dissolution of Temporary Restraining Order and Opposition
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to Preliminary Injunction (ECF No. 11), and Respondent Washington County on Behalf of
Defendants Steve Berger, Joe Simich and Kevin Doohan’s Motion for Dissolution of Temporary
Restraining Order and Objection to Preliminary Injunction (ECF No. 13). For the reasons that
follow, the Court DISSOLVES the Temporary Restraining Order and DENIES a preliminary
injunction.
BACKGROUND
Plaintiff is currently on post-prison supervision (“PPS”) from a Washington County Circuit
Court conviction on charges of Sexual Abuse in the First Degree and Sexual Abuse in the Third
Degree. Plaintiff’s Complaint alleges he was released from prison on September 13, 2016, with his
PPS scheduled to expire on June 11, 2020.
On August 8, 2016, in anticipation of Plaintiff’s release from incarceration to PPS, the
Oregon Board of Parole and Post-Prison Supervision (the “Board”) issued an Order mandating the
conditions of Plaintiff’s supervised release. The Order includes a standard set of supervision
conditions referred to as “Sex Offender Package A,” as required by Or. Rev. Stat. § 144.102(4)(b).
The mandatory supervision conditions included in the Board’s Order include two that
reference polygraph testing. First, the Order requires Plaintiff to “enter into and complete[] . . . a sex
offender treatment program approved by the Board, supervisory authority, or supervisory officer.”
The sex offender treatment program “may include polygraphs and plethysmograph testing.” Second,
the Order requires “[p]articipation in random polygraph examinations to obtain information for risk
management and treatment.” The results of polygraph examinations under this condition “may not
be used as evidence in a hearing to prove a violation of post-prison supervision.” The Order also

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contains conditions prohibiting Plaintiff from having contact with minors, including Plaintiff’s minor
son.
The last page of the Order advised Plaintiff that he could seek administrative review within
45 days of the date he signed or received the Order. It further advised Plaintiff that once he received
an administrative decision, he could then seek judicial review with the Oregon Court of Appeals.
Plaintiff did seek administrative and judicial review, but only as to other conditions of his release;
Plaintiff did not challenge the conditions related to polygraph examinations.
Plaintiff was assigned to Parole Officer Kevin Doohan on May 12, 2017. Defendant Doohan
directly supervised Plaintiff through September 29, 2017. On or about May 11, 2017, Doohan and
Plaintiff met to conduct a transitional meeting after Plaintiff’s release from the Washington County
Jail. At that meeting, Doohan and Plaintiff discussed the Board’s August 8, 2016, Order. Both
Doohan and Plaintiff signed a copy of the Order. At the same meeting, Doohan also reviewed a
Definition of Terms Regarding Contact with a Prohibited Person and a Polygraph Examiner
Information. Doohan and Plaintiff signed copies of each.
On September 1, 2017, Plaintiff filed a Motion for Relief From Polygraph Testing and
Invocation of Right to Remain Silent with the Board. The Board denied Plaintiff’s Motion in a
September 20, 2017, Order signed by Defendant Wu (who is no longer a member of the Board).
On January 25, 2018, Plaintiff filed his Complaint in this action, seeking an Emergency
Temporary Restraining Order, [Preliminary] Injunction, and Permanent Injunction. Plaintiff sought
a temporary restraining order enjoining Defendants from conducting a polygraph examination
scheduled for February 6, 2018, as well as preliminary and permanent injunctions enjoining

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Defendants from compelling Plaintiff to participate in any further polygraph tests as a condition of
his PPS. Plaintiff also seeks money damages.
In his Complaint, Plaintiff alleges that at the May 11, 2017, meeting with Doohan, Plaintiff
requested and received an Interstate Compact Agreement application to apply to transfer his PPS to
the State of Washington. Plaintiff alleges Doohan told him that while Plaintiff waited for his
application to be processed, it would “look good” for him to get started on treatment programs and
take a full disclosure polygraph examination.1
Plaintiff alleges he was scheduled to take the polygraph examination on June 16, 2017, but
that Doohan cancelled it so he could provide Plaintiff’s entire file to the polygrapher before the
examination was conducted. Plaintiff objected to the cancellation, and his Complaint then sets forth
the alleged contents of an extensive email exchange with Doohan. Eventually, Doohan sent an email
to Plaintiff stating, “Yes, if you test as deceptive that will put your transfer [to Washington] on hold
indefinitely.” Plaintiff alleges Doohan also threatened Plaintiff with further jail time if Plaintiff
refused to participate in the polygraph, and that in another email, Doohan stated, “If you test
deceptive on a maintenance polygraph you will not go to jail until we know for sure why you tested
deceptive.”
Plaintiff alleges he participated in a full disclosure polygraph on July 7, 2017. The examiner
concluded Plaintiff was deceptive in answering four questions about his past sexual activities, two

1

The Polygraph Examination Information form signed by Plaintiff describes a full disclosure
examination as follows:
The Full Sexual History Disclosure examination is utilized to explore and extract
from the sex offender their involvement in sexual behavior. The sexual history
information can be helpful in facilitating treatment for the offender and assessing risk
factors.
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relating to the victims involved in Plaintiff’s conviction and two as to general contact with minors.
Plaintiff’s PPS was not revoked as a result of the polygraph examination. In fact, Doohan attests that
in the time he supervised Plaintiff, Doohan never referred Plaintiff for a violation of his release
conditions, and never recommended any sanction against Plaintiff.
On February 5, 2018, this Court issued a Temporary Restraining Order enjoining Defendants
from conducting any polygraph examination of Plaintiff until further order. The Court entered the
Order based upon the allegations of Plaintiff’s Complaint that Defendant Doohan threatened Plaintiff
with further jail time if Plaintiff refused to participate in the polygraph examination, and that Doohan
also threatened Plaintiff with further jail time if he produces a “deceptive” polygraph examination
result.
Due to Plaintiff’s pro se status, the Court transmitted the Order to the offices of the
Washington County Counsel and the Oregon Attorney General. The matter was set for hearing, and
on February 14, 2018, Assistant County Counsel Kimberly Stuart and Assistant Attorney General
Tracy White appeared. The Court directed Plaintiff to properly serve Defendants with process,
continued the Temporary Restraining Order, and set a briefing schedule and further hearing on the
matter for February 28, 2018. On February 23, 2018, Defendant Wu filed his Motion for Dissolution
of the Temporary Restraining Order and Opposition to Preliminary Injunction, and Defendants Steve
Berger, Joe Simich, and Kevin Doohan (the “Washington County Defendants”) filed their Motion
for Dissolution of Temporary Restraining Order and Objection to Preliminary Injunction. On
February 28, 2018, the Court heard argument from the parties. The Court dissolved the Temporary
Restraining Order, and denied Plaintiff’s request for preliminary injunction, with this opinion to
follow.
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LEGAL STANDARDS
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary
injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer
irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor,
and [4] that an injunction is in the public interest.” Id., at 20 (emphasis added); Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). In the Ninth Circuit, assuming the other
elements of the Winter test are met, a “sliding scale” approach may be taken and “[a] preliminary
injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the merits
were raised and the balance of hardships tips sharply in the plaintiff's favor.” Alliance for the Wild
Rockies, 632 F.3d at 1131–35 (“‘serious questions’ approach survives Winter when applied as part
of the four-element Winter test”). Where, as here, the plaintiff seeks a mandatory injunction that
goes beyond maintaining the status quo, he must demonstrate that the facts and law clearly favor an
injunction. Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015); see also Am. Freedom Def.
Initiative v. King Cty., 796 F.3d 1165, 1173 (9th Cir. 2015) (mandatory injunctions are disfavored
and will not be entered in doubtful cases).
DISCUSSION
Plaintiff alleges the PPS conditions requiring him to submit to polygraph examinations
violate his rights against self-incrimination under the Fifth and Fourteenth Amendments. Defendant
Wu argues Plaintiff is not entitled to injunctive relief because no civil rights claim can be brought
based on the right to remain silent without a criminal charge, because Plaintiff’s claims are not ripe,
because claim preclusion bars Plaintiff’s claims, and because Wu is protected by absolute and
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qualified immunity. The Washington County Defendants assert similar arguments, and also contend
that Plaintiff’s claims are barred by the Heck doctrine. Because the Court finds Plaintiff failed to
establish he is entitled to a preliminary injunction under the Winter factors, the Court does not
address Defendants’ additional arguments at this time.2
I.

Likelihood of Success on the Merits
“The Fifth Amendment, made applicable to the States by the Fourteenth Amendment, Malloy

v. Hogan, 378 U.S. 1 (1964), requires that ‘[n]o person . . . shall be compelled in any criminal case
to be a witness against himself.’” Chavez v. Martinez, 538 U.S. 760, 765 (2001) (quoting U.S.
Const., Amdt. 5) (emphasis in original). “Thus, the Fifth Amendment provides a right against
compelled self-incrimination, but that right only applies when a compelled statement is used against
a defendant in a ‘criminal case.’” United States v. Hulen, 879 F.3d 1015, 1018 (9th Cir. 2018)
(citing Chavez, 538 U.S. at 766-67; Stoot v. City of Everett, 582 F.3d 910, 922-23 (9th Cir. 2009)).
In general, the Fifth Amendment is not self-executing: “a witness . . . ordinarily must assert
the privilege rather than answer if he desires not to incriminate himself.” Minnesota v. Murphy, 465
U.S. 420, 435 (1984). In Murphy, the defendant was subject to a probation condition requiring that
he participate in a treatment program for sex offenders, report to his probation officer as directed,
and be truthful with the probation officer “in all matters.” Id. at 422. In his treatment program, the
defendant admitted a prior rape and murder. Those admissions were communicated to the probation

2

With respect to the County Defendants’ Heck argument, the Court notes that a 42 U.S.C.
§ 1983 preemptive challenge to the conditions of parole outside the context of a revocation
proceeding is not necessarily barred by Heck v. Humphrey, 512 U.S. 477 (1994). See Lee v. Jones,
Case No. 05-789-MO, 2006 WL 44188, at *4 (D. Or. Jan. 9, 2006) (parole conditions, as opposed
to the fact of parole itself, are not properly considered part of the parolee’s sentence, and because
they do not challenge the fact or length of parole, challenges thereto are not barred by Heck).
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officer, and upon questioning, the defendant did not invoke his right against self-incrimination and
admitted the crimes to the probation officer. In the subsequent criminal prosecution, the defendant
sought to suppress the admissions on the ground that his statements had been compelled by the
probation condition, and were entitled to Fifth Amendment protections.
The Court in Murphy considered whether to excuse the defendant’s failure to assert the
privilege against self-incrimination on the basis of the so-called “penalty exception,” which had
been applied in cases where “the State not only compelled an individual to appear and testify, but
also sought to induce him to forgo the Fifth Amendment privilege by threatening to impose
economic or other sanctions capable of forcing the self-incrimination which the Amendment
forbids.” Id. at 434 (citation omitted). The Court found there was no evidence that the defendant
would have been penalized for exercising his Fifth Amendment privilege; the probation condition
“proscribed only false statements; it said nothing about his freedom to decline to answer particular
questions and certainly contained no suggestion that his probation was conditional on his waiving
his Fifth Amendment privilege with respect to further criminal prosecution.” Id. at 437. The Court
explained, however, how the penalty exception could apply to a probationer:
If the State, either expressly or by implication, asserts that invocation of the privilege
would lead to revocation of probation, it would have created the classic penalty
situation, the failure to assert the privilege would be excused, and the probationer’s
answers would be deemed compelled and inadmissible in a criminal prosecution.
Id. at 435 (fn. omitted) (emphasis supplied). The Court further noted that “a State may validly insist
on answers to even incriminating questions and hence sensibly administer its probation system, as
long as it recognizes that the required answers may not be used in a criminal proceeding and thus
eliminates the threat of incrimination.” Id. at 435, fn.7

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In Hulen, the Ninth Circuit recently stated that “[i]t is well established that parole revocation
is not part of a criminal prosecution.” Hulen, 879 F.3d at 1919 (citing Standlee v. Rhay, 557 F.2d
1303, 1306 (9th Cir. 1997) (additional citation omitted); see also Murphy, 466 U.S. at 445 fn. 7
(“[a]though a revocation proceeding must comport with the requirements of due process, it is not a
criminal proceeding”). Instead, a revocation proceeding is “part of the ‘matrix of punishment’
arising out of the original crime.” Hulen, 879 F.3d at 1020 (citing United States v. Soto-Olivas, 44
F.3d 788, 792 (9th Cir. 1995)). The defendant in Hulen was serving a supervised release term that
included as a condition of release the requirement that he participate in sex-offender treatment. In
the course of treatment, he informed his treatment provider that he failed to comply with his
treatment program by, inter alia, engaging in sexual activity. The provider informed the supervising
officer that Hulen would be terminated from treatment. The officer then filed a petition to revoke
supervised release on the basis of being terminated from treatment, which the district court granted.
Hulen appealed, arguing that the district court violated his right against self-incrimination by relying
on his admissions to his treatment provider to revoke his release. The Ninth Circuit held that,
because a proceeding to revoke supervised release is not a “criminal case” for the purposes of the
Fifth Amendment, the right against self-incrimination did not prevent the use of his admissions to
revoke his supervised release. Id. at 1021-22.
In Hulen, the court distinguished a prior Ninth Circuit case, United States v. Antelope, 395
F.3d 1128 (9th Cir. 2005). There, the defendant was convicted of possessing child pornography and
sentenced to five years probation. One of the probation terms required him to participate in a sex
offender treatment program that would subject him to mandatory periodic and random polygraph
examinations. Antelope refused to submit to the polygraph examinations because he did not want
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to detail his sexual history out of fear he would be charged with new crimes for past actions.
Antelope, 395 F.3d at 1135. The district judge revoked probation based on the refusal to submit to
a polygraph, and sentenced Antelope to a term of imprisonment, followed by three years of
supervised release. The court again imposed the sex offender treatment requirement as a condition
of his supervised release. Antelope again refused the polygraph, asserting his Fifth Amendment
rights. The court then revoked his supervised release and sentenced him to an additional prison term.
On appeal, the Ninth Circuit held that Antelope’s claim was “ripe” because he had been
incarcerated for his refusal to comply with the polygraph condition, and concluded that the
revocation of his probation and supervised release violated his Fifth Amendment right against
self-incrimination. Id. at 1133, 1139. The court discussed at some length Antelope’s fear that
disclosure would lead to future prosecution, as well as the counselor’s statements that he would most
certainly turn over evidence of past sex crimes to the authorities, and that he had reported his clients’
crimes in the past, which led to additional criminal convictions. In Hulen, the Ninth Circuit relied
upon this discussion to distinguish Antelope, stating:
[I]n United States v. Antelope, a probationer refused to detail his sexual history out
of fear that he would be charged with new crimes for past actions. We noted that we
had “no doubt,” based on the facts of the case, “that any admissions of past crimes
would likely make their way into the hands of prosecutors.” We therefore upheld the
probationer’s right to refuse to detail his sexual history because the answers “would
incriminate him in a pending or later criminal prosecution.” Thus, our analysis was
driven by the threat of a new prosecution. We did not address the question of
whether the Fifth Amendment would be implicated by an admission leading to the
revocation of supervised release.
If an effort had been made to charge and convict Hulen for a new crime based on his
admissions, he would presumably be able to claim the benefit of the Fifth
Amendment. That is not the case before us, however. The right of self-incrimination
did not prevent the use of his admissions to revoke his supervised release.

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Hulen, 879 F.3d at 1020-21 (internal citations omitted).
Here, Plaintiff makes no allegations that he is in fear of future prosecution for new crimes
if he participates in the polygraph examinations. As such, the mere threat of revocation for refusing
to take a polygraph examination does not violate Plaintiff’s Fifth Amendment right against
self-incrimination. In fact, Plaintiff affirmatively alleges that he completed the full disclosure
examination required by the sex offender treatment program. As noted, even though the examiner
found some of his answers in that examination deceptive, Plaintiff’s release was not revoked on that
basis. Moreover, Oregon law provides in any event that, where a defendant is required as a condition
of post-prison supervision to participate in “random polygraph examinations to obtain information
for risk management and treatment,” the results of those polygraphs “may not be used in evidence
in a hearing to prove a violation of parole.” Or. Rev. Stat. § 104.270(4)(b)(J).
Finally, even in Antelope, the Ninth Circuit noted a distinction applicable to Plaintiff’s
situation. The court discussed the Supreme Court’s decision in Chavez, supra, in which a plurality
of the Court held that a defendant police officer was entitled to qualified immunity in a 42 U.S.C.
§ 1983 action for damages alleging violation of the plaintiff’s Fifth Amendment right against
self-incrimination where the officer questioned the plaintiff and obtained admissions of criminal
liability, but no criminal charges were ever pursued. The Ninth Circuit noted that “[c]ritical to the
reasoning of all six justices was the simple principle that the scope of the Fifth Amendment’s
efficacy is narrower when used as a sword in a civil suit than when used as a shield against criminal
prosecution” and “[w]ere Antelope to turn the tables and sue the government, Chavez would direct
our inquiry to the ‘core constitutional right’” such that an argument that the government has the right
to compel a defendant to incriminate himself, prosecute him, and force him to litigate the
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admissibility of each piece of evidence in future criminal proceedings might prevail. Antelope, 395
F.3d at 1141. Thus under Chavez, in the absence of criminal prosecution, Plaintiff cannot obtain
damages under § 1983 for the alleged violation of his Fifth Amendment self-incrimination rights
because no criminal charges have been pursued against him. See also Farmer v. Youhas, 525 Fed.
Appx. 547, at *1 (9th Cir. 2013) (district court properly granted summary judgment in civil rights
case on Fifth Amendment claim where plaintiff presented no evidence that statements he made
during polygraph examination were used against him in a criminal proceeding) (citing Chavez, 538
U.S. at 766-69). Accordingly, Plaintiff has not demonstrated a likelihood of success on the merits
or a serious questions going to the merits of his Fifth Amendment self-incrimination claims.
II.

Irreparable Harm
As noted, Oregon law prohibits the use of answers obtained in the course of a polygraph

examination required as a condition of post-prison supervision in a revocation proceeding.
Moreover, the Court finds no evidence of circumstances such as occurred in Antelope; there is no
indication that any admission of past crimes would inevitably result in a criminal prosecution against
Plaintiff. As such, the Court finds Plaintiff does not face irreparable harm.
III.

Balance of Equities & Public Interest
In reviewing the balance of equities between the parties, the Court finds the balance tips

slightly in favor of the Defendants. The government has a strong interest in overseeing the postprison supervision of criminal defendants and in administering sex offender treatment. Both are
important to the safety of the public, whose interest in this case coincides with the Defendants.
Plaintiff, meanwhile, has an interest in remaining safe and to not make self-incriminatory statements.

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As discussed above, however, the Fifth Amendment self-incrimination protections are not
implicated. Accordingly, the balance of equities and public interest weigh against Plaintiff.
CONCLUSION
For these reasons, the Court finds Plaintiff is not entitled to a preliminary injunction. The
Court GRANTS Defendant Wu’s Motion for Dissolution of Temporary Restraining Order (ECF No.
11) and the Washington County Defendants’ Motion for Dissolution of Temporary Restraining Order
(ECF No. 13) and DISSOLVES the Temporary Restraining Order, and the Court DENIES Plaintiff’s
request for Preliminary Injunction.
IT IS SO ORDERED.
DATED this

day of February, 2018.

Marco A. Hernandez
United States District Judge

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