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Ferry v. Doohan

United States District Court, D. Oregon

November 28, 2018

RICHARD FERRY, Plaintiff,
v.
KEVIN DOOHAN, et al., Defendants.

          RICHARD FERRY Plaintiff Pro Se.

          KIMBERLY A. STUART Assistant County Counsel Office of Washington County Counsel Attorneys for Defendants.

          OPINION AND ORDER

          Marco A. Hernández United States District Judge.

         Plaintiff brings this civil rights action pro se. Currently before the Court is Plaintiff's Motion for Preliminary Injunction[1] (ECF No. 2), which came before the Court for hearing on November 19, 2018. For the reasons that follow, the Court 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. This is the second civil rights action initiated by Plaintiff alleging violations of his constitutional rights in connection with the enforcement of the conditions of Plaintiff's PPS release as set forth in an August 8, 2016, Order issued by the Oregon Board of Parole and Post-Prison Supervision (the "Board"). In the first action, Ferry v. Doohan, Case No. 3:18-cv-00153-AC, this Court issued an Opinion and Order (ECF No. 22) denying Plaintiff's motion for preliminary injunction. The background facts from that Opinion and Order are incorporated herein by reference, and supplemented below as necessary.

         In his current Motion, Plaintiff seeks an order enjoining Defendants from (1) requiring him to submit to a polygraph examination in violation of his Fifth Amendment right to be free from self-incrimination; (2) demanding that Plaintiff sign a Release of Information ("ROI") for records from a mental health treatment program in violation of Plaintiff's right to privacy under the First, Ninth, and Fourteenth Amendments; (3) prohibiting Plaintiff attending religious services at the church of his choice in violation of the First Amendment; and (4) retaliating against Plaintiff for exercising his right to redress his grievances with the Court under the First and Fourteenth Amendments.

         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

         I. Polygraph Examinations

         Plaintiff alleges Defendants are violating his rights against self-incrimination by requiring him to submit to polygraph examinations as a condition of his release. For the reasons stated in the Court's Opinion and Order denying a preliminary injunction in the prior action, the Court denies Plaintiff's current request. To the extent Plaintiff contends relief should be granted based on the alleged prosecution of another inmate for disclosures made in a PPS polygraph examination, the Court finds Plaintiff's citation to that case is not persuasive. Accordingly, Plaintiff has not established a likelihood of success on the merits of this claim. Moreover, Plaintiff has not demonstrated the likelihood of irreparable harm, as Plaintiff stated at the hearing on his Motion that he underwent and successfully passed a recent maintenance polygraph examination. Finally, the balance of equities and public interest continue to weigh against Plaintiff.

         II. ROI For Mental Health Treatment Records

         Plaintiff also seeks an injunction preventing Defendants from requiring Plaintiff to release information pertaining to mental health treatment provided Plaintiff at Sequoia Mental Health Services. Plaintiff alleges he enrolled in an anger management program at Sequoia "on his own apart from anything" required as sex offender treatment under the terms of his PPS release. He further alleges that his sex offender treatment provider concluded that Plaintiff fully complied with the release condition of "[e]ntry into and completion of or successful discharge from a sex offender treatment program approved by the board, supervisory authority or supervising officer." Plaintiff alleges the requirement that he ...


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