United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. McSHANE, District Judge.
Plaintiff Conrad Engweiler is a prisoner of the Oregon Department of Corrections and is currently confined at the Oregon State Correctional Institution in Salem, Oregon. Pl.'s First Am. Compl. 2, ECF No. 7. Plaintiff, currently scheduled for an "exit interview" hearing on May 13, 2014, seeks to enjoin the Oregon Board of Parole and Post-Prison Supervision (Board) from (1) ordering a second psychological evaluation, and (2) disallowing plaintiff to call witnesses.
The Court is asked to consider whether these practices violate plaintiff's procedural due process rights under the Fourteenth Amendment. Because Oregon's "exit interview" procedures satisfy due process, this Court finds that plaintiff failed to state a claim upon which relief can be granted and has not met his preliminary injunctive relief burden under Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). Thus, plaintiff's motion for preliminary injunction, ECF No. 12, is DENIED, and defendants' motion to dismiss for failure to state a claim, ECF No. 17, is GRANTED with prejudice.
STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter that "state[s] a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual allegations allow the court to infer the defendant's liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than "the mere possibility of misconduct." Id. at 678.
While considering a motion to dismiss, the court must accept all allegations of material fact as true and construe in the light most favorable to the non-movant. Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). However, the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). If the complaint is dismissed, leave to amend should be granted unless the court "determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (citations and internal quotation marks omitted).
Plaintiff seeks to enjoin the defendants from violating his procedural due process rights under the Fourteenth Amendment Due Process Clause. In particular, plaintiff contends that defendants violate his procedural due process rights in the context of parole release (exit interview), by: (1) possibly requiring him to submit to a second psychological evaluation and (2) disallowing him from calling witnesses.
"As for the Due Process Clause, standard analysis under that provision proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient." Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011) (citing Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989)).
"[S]tate statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause." Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987). "Whatever liberty interest exists is, of course, a state interest created by [Oregon] law. There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners." Swarthout, 131 S.Ct. at 862 (emphasis in original). Under relevant portions of ORS § 144.120 and ORS § 144.125,  plaintiff "is entitled to be released unless the [B]oard is persuaded that he has a present severe emotional disturbance that constitutes a danger to the health or safety of the community." Stogsdill v. Bd. of Parole & Post-Prison Supervision, 342 Or. 332, 336 (2007) (citing ORS § 144.245). Assuming this "entitlement" represents a sufficient liberty interest, this Court next looks to the constitutionality of (1) defendants' possible use of a second psychological evaluation and (2) defendants' policies disallowing plaintiff from calling witnesses.
I. Defendants' Use of a Second Psychological Evaluation
Plaintiff asserts that defendants' policy of conducting a second psychological evaluation after an initial "positive" psychological evaluation, constitutes "pre-judging, " and violates the Due Process Clause. Pl.'s First Am. Compl. 8, ECF No. 7. This Court disagrees.
As an initial matter, this Court notes that "a mere error of state law is not a denial of due process." Swarthout, 131 S.Ct. at 863 (citations and internal quotation marks omitted). Engweiler's liberty interest, assuming that it exists, arises under Oregon law. Under Oregon law, there is no indication that the Board is limited to a single psychological evaluation. See, e.g., ORS § 144.125(3) (1989); Colby v. Thompson, 183 Or.App. 311, 320 (2002) (finding that the Oregon legislature, in codifying ORS § 144.226(1), did not intend to limit the number of psychological evaluations that the Board could order because the statute used the singular "a" in reference to a psychological examination). Even had the Board been so restricted, it is not this Court's responsibility to determine whether the "procedures governing [Oregon's] parole system are properly applied...." Swarthout, 131 S.Ct. at 863.
The issue, therefore, is whether the Board can lawfully order a second psychological evaluation if a first psychological evaluation is "positive." ...