Samantha G. CHANEY; et al., Plaintiffs-Appellants, v. Joseph D. LEHMAN, Defendant-Appellee, 225 F. App'x 708

MEMORANDUM Samantha G. Chaney, Ryan L. Tatt, Brendalyn D. Marshall, and Joshua J. Bradford (“Class Plaintiffs”), a class of individuals who are, were, or will be incarcerated by the Washington State Department of Corrections (“DOC”) beyond the first date they were or would be eligible for release into community custody, appeal from the district court’s order dismissing with prejudice their 42 U.S.C. § 1983 action against Joseph D. Lehman, the former Secretary of the DOC, after concluding that the action was barred under qualified immunity. We affirm.

The Class Plaintiffs argue that release into community custody on the first eligible release time (“ERT”) date is a liberty interest protected by the Fourteenth Amendment. Thus, they assert that Lehman violated their due process rights by not affording the Class Plaintiffs hearings after denying them release into community custody on their ERT dates.

The Class Plaintiffs also argue that prisoners subject to post-release supervision have a constitutional liberty interest in amassing good time credits. “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). State statutes or regulations, however, may independently create a due process liberty interest. Kentucky Dep’t of Corrections v.

Thompson, 490 U.S. 454, 461, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). “[L]aws that dictate particular decisions given particular facts can create liberty interests, but laws granting a significant degree of discretion cannot.” In re Cashaw, 123 Wash.2d 138, 866 P.2d 8, 11 (1994). The Class Plaintiffs have not established that they hold a liberty interest in their release into community custody upon their ERT dates. Under Washington law, inmates, like the Class Plaintiffs, “may” become eligible for supervised community custody in lieu of release. Wash. Rev.Code § 9.94A.728(2) (2006).

The Washington statute grants a significant degree of discretion to the DOC regarding the release of such inmates. Id. Before being transferred to community custody, an eligible inmate is required to “propose a release plan that includes an approved residence and living arrangement.” Wash. Rev.Code § 9.94A.728(2)(c) (2006).

The DOC has statutory authority to deny transfer to community custody status if it “determines an offender’s release plan ... may violate the conditions of the sentence or conditions of supervision, place the offender at risk to violate the conditions of the sentence, place the offender at risk to reoffend, or present a risk to victim safety or community safety.” Wash. Rev.Code § 9.94A.728(2)(d). The statute further provides that “[t]he department’s authority under this

section is independent of any court-ordered condition of sentence or statutory provision regarding conditions for community custody or community placement!)]” Id. Washington appellate courts have indicated that, under Washington state law, early release into community custody is a “limited” liberty interest. However, even assuming, without deciding, that a “limited” liberty interest exists, no authority indicates that a hearing is required if such early release is denied.

See In re Taylor, 122 Wash.App. 880, 95 P.3d 790, 792 (2004) (finding that an inmate has “a limited, but protected liberty interest” in good time credits); In re Crowder, 97 Wash.App. 598, 985 P.2d 944, 946 (1999) (holding that Crowder was not denied due process when the DOC did not release him into community custody on his ERT date because, after determining that placement with Crowder’s proposed sponsor would have been a violation of his sentence, it provided him assistance in finding a suitable placement); In re Dutcher, 114 Wash.App. 755, 60 P.3d 635, 640 (2002) (finding that the DOC must allow an inmate to submit a community custody plan for investigation); In re Liptrap, 127 Wash.App. 463, 111 P.3d 1227, 1234 (2005) (finding that the DOC must consider release plans in a “timely manner”).

DOC policy 350.200 describes specific procedures under which an inmate may submit a release plan, the plan may be investigated and subsequently approved or denied. If the plan is approved, the inmate may be transferred to community custody. If the plan is denied, an inmate may be advised of the DOC’s decision regarding his or her release plan and may submit a new plan if he or she so chooses.

This process and remedy was used by Class Plaintiff Michael Elder who, after receiving notice of the denial of his plan due to the DOC’s inability to locate his proposed release address, submitted a corrected address that was ultimately approved. Accordingly, we conclude that the district court correctly determined that inmates have no clearly established right to a hearing prior to being denied release to community custody status in lieu of earned release time. Lehman is, therefore, entitled to qualified immunity. AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.