United States District Court, D. Oregon
JESSE A. MERRITHEW, Levi Merrithew Horst LLP, Portland, OR, Attorneys for Plaintiff.
ELLEN ROSENBLUM, Attorney General, HEATHER J. VAN METER, Assistant Attorney General, Salem, OR, Attorneys for Defendants.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendants' Motion (#84-1) to Dismiss and Alternative Motion (#84-2) for Abstention. For the reasons that follow, the Court GRANTS Defendants' Motion to Dismiss and DENIES as moot Defendants' Motion for Abstention.
The following facts are taken from Plaintiff's Second Amended Complaint.
On April 9, 2001, Plaintiff Seth Edwin Koch was indicted in Deschutes County Circuit Court on five counts of Aggravated Murder, five counts of Conspiracy to Commit Aggravated Murder, two counts of Attempted Murder, one count of Assault in the Second Degree, one count of Kidnapping in the First Degree, three counts of Robbery in the First Degree, three counts of Burglary in the First Degree, and two counts of Theft in the First Degree.
On August 2, 2002, Plaintiff pled guilty to two counts of Aggravated Murder, two counts of Conspiracy to Commit Aggravated Murder, two counts of Attempted Murder, one count of Assault in the Second Degree, one count of Kidnapping in the First Degree, and two counts of Robbery in the First Degree.
On August 14, 2002, Plaintiff was sentenced to a 90-month term of imprisonment on one count of Robbery in the First Degree. Disposition of the remaining counts to which Plaintiff pled guilty was continued for a penalty-phase trial.
At some point after August 14, 2002, Plaintiff was incarcerated at MacLaren Youth Correctional Facility because he was a minor.
On July 30, 2003, Plaintiff waived his right to a jury for the penalty phase and sentencing. On August 14, 2003, Plaintiff was sentenced to two separate sentences of life in prison without the possibility of parole for the two counts of Aggravated Murder, 120 months for each of the two counts of Conspiracy to Commit Aggravated Murder, 70 months for one count of Assault in the Second Degree, and 90 months "for each of the remaining counts" to be served consecutively.
Plaintiff's incarceration was continued at MacLaren in the Secure Intensive Treatment Program (SITP) until Plaintiff was transferred to the custody of the Oregon Department of Corrections (ODOC) on April 8, 2010. Under SITP
each offender achieved a level commensurate with his behavior, progress and other factors, which would be described by both a color corresponding to the level and a number corresponding to the number of weeks the offender has maintained that color level ( i.e., "Green 50" for 50 weeks at the Green level). An offender who progressed in the behavior management system to higher levels enjoyed increased freedom and amenities.
Second Am. Compl. at ¶ 55.
Plaintiff alleges the following with respect to SITP:
Under SITP... an offender with any type of legal proceeding, including appeals or collateral attacks on his conviction, could not progress beyond a relatively low level of "Green 25." Under SITP... an offender who pursue[d] legal challenges to his convictions was precluded from participating in the Violent Offender ...