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Ferry v. Doohan

United States District Court, D. Oregon

March 6, 2018

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.



         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 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.


         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 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 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 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 ...

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