Carver v. Lehman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH CARVER, 

Plaintiff-Appellant,

No. 06-35176

v.

JOSEPH LEHMAN; KIMBERLY ACKER;  D.C. No.

CV-04-05570-RBL

VICTORIA ROBERTS; SIX TO BE

OPINION

NAMED DEFENDANTS,

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued April 17, 2007

Submitted April 28, 2008

San Francisco, California

Filed June 9, 2008

Before: Warren J. Ferguson, Stephen Reinhardt, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Reinhardt;

Concurrence by Judge Milan D. Smith, Jr.

6509

CARVER v. LEHMAN 6513

COUNSEL

Tyler A. Baker, Esq., Todd Gregorian, Esq., Heather N.

Mewes, Esq. (argued), Fenwick & West, LLP, Mountain

View, California, for the plaintiff-appellant.

Rob McKenna, Esq., Sara J. Olson, Esq. (argued), Gregory J.

Rosen, Esq., Office of the Washington Attorney General,

Criminal Justice Division, Olympia, Washington, for the

defendants-appellees.

6514 CARVER v. LEHMAN

OPINION

REINHARDT, Circuit Judge:

This case presents the question whether Washington state

law creates a liberty interest in an inmate’s early release into

community custody that is protected under the Due Process

Clause of the Fourteenth Amendment. We hold that it does.

We conclude, however, that this right was not clearly estab-

lished at the time of the facts giving rise to this case. We

therefore affirm the district court’s grant of qualified immu-

nity.

I. Factual and Procedural Background

In August 1999, Joseph Dale Carver pled guilty to child

molestation in the third degree. He was sentenced to fifty-four

months of confinement in the custody of the Washington

State Department of Corrections (“DOC” or “Department”).

Because he was a sex offender, state law also required that

Carver be sentenced to a term of community custody to begin

“either upon completion of the term of confinement or at such

time as [he] is transferred to community custody in lieu of

earned release[.]” See WASH. REV. CODE § 9.94A.710(1)

(2006).1 He was sentenced to a thirty-six-month period of

community custody.

1

The Washington Court of Appeals has explained that “[c]ommunity

custody is the intense monitoring of an offender in the community for a

period of at least one year after release or transfer from confinement.

Although it has other purposes, community custody continues in the

nature of punishment, and is not equivalent to general release.” In re

Crowder, 985 P.2d 944, 945 (Wash. Ct. App. 1999). Offenders in commu-

nity custody live in a residence pre-approved by the DOC and are subject

to mandatory and discretionary conditions imposed by either the DOC or

the sentencing court. See, e.g., WASH. REV. CODE §§ 9.94A.710(2)-(3),

9.94A.700(4)-(5) (listing mandatory and discretionary conditions imposed

on offenders subject to community custody including, inter alia, reporting

requirements, payment of supervision fees, and prohibitions against pos-

session of controlled substances and consumption of alcohol).

CARVER v. LEHMAN 6515

Carver’s good behavior as a prisoner earned him an early

release date of June 27, 2002.2 Carver’s sex offense, however,

precluded him from being released on his earned date. WASH.

REV. CODE § 9.94A.728(2)(a) (2006). Rather, state law pro-

vides that sex offenders may become eligible for transfer to

community custody in lieu of early release. Id. Eligibility for

transfer to community custody is determined based on “re-

lease plan[s]” submitted by offenders. WASH. REV. CODE

§ 9.94A.728(2)(c). In March 2002, Carver submitted a release

plan. His plan was denied in April 2002, pursuant to a DOC

policy then in effect which provided for the categorical denial

of release plans of offenders, like Carver, whom the Depart-

ment determined “appear[ed] to meet the definition of a sexu-

ally violent predator and [who had] been referred for Civil

Commitment . . . .” DOC Policy Directive 350.200 (May 4,

2001).3 As a result of the denial of his proposed release plan,

Carver served his full term of confinement.

In September 2004, Carver filed a civil rights suit under 42

U.S.C. § 1983, asserting that DOC officials denied him early

release into community custody without affording him due

process of law under the Fourteenth Amendment.4 The district

court, adopting the report and recommendation of the magis-

trate judge, granted the DOC officials’ motion for summary

judgment on two principal grounds: one, that Washington law

does not create a liberty interest in early release into commu-

nity custody and therefore Carver did not have a due process

2

For reasons that are not explained in the record before us, this date was

subsequently pushed back to January 13, 2003.

3

As we explain infra, this policy was subsequently struck down by the

Washington Court of Appeals in In re Dutcher, 60 P.3d 635, 640 (Wash.

Ct. App. 2002) (holding “DOC Policy 350.200 . . . violates the governing

statutes”).

4

Carver’s original complaint named as a defendant only Joseph Leh-

man, secretary of the DOC at the time that Carver’s release plan was

denied. In his amended complaint, Carver named two additional defen-

dants, Kimberley Acker and Victoria Roberts, both DOC officials

involved in making end of sentence review determinations.

6516 CARVER v. LEHMAN

right protected by the Fourteenth Amendment and two, that

even if such a right existed, Defendant Lehman was entitled

to qualified immunity.5 Carver timely appealed. We have

jurisdiction to review the district court’s determination pursu-

ant to 28 U.S.C. § 1291, and we review de novo its grant of

summary judgment and finding of qualified immunity. See

Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs.,

237 F.3d 1101, 1106 (9th Cir. 2001); Galen v. County of Los

Angeles, 477 F.3d 652, 658 (9th Cir. 2007).

II. Discussion

[1] The Due Process Clause of the Fourteenth Amendment

provides that no state shall “deprive any person of life, liberty,

or property, without due process of law . . . .” U.S. CONST.

amend. XIV, § 1. Our analysis of due process claims proceeds

in two steps. “[T]he first asks whether there exists a liberty or

property interest which has been interfered with by the State;

the second examines whether the procedures attendant upon

that deprivation were constitutionally sufficient.” Ky. Dep’t of

Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citation omit-

ted).

[2] We have recognized that “[a] liberty interest may arise

from either of two sources: the due process clause itself or

state law.” Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th

Cir. 1986). Carver concedes that the Due Process Clause does

not create a liberty interest in an inmate’s “conditional[ ]

release[ ] before the expiration of a valid sentence.” Green-

holtz v. Inmates of the Nebraska Penal and Corr. Complex,

442 U.S. 1, 7 (1979). Rather, he argues that Washington

state’s statutory scheme governing early release into commu-

5

The district court also adopted the magistrate judge’s finding that

Defendants Acker and Roberts were entitled to summary judgment

because Carver failed to show that “these defendants played any part in

enacting the policy that precluded [Carver] from being considered for

release.” Carver does not appeal this portion of the judgment below.

CARVER v. LEHMAN 6517

nity custody “uses mandatory language, ‘creat[ing] a pre-

sumption that . . . release will be granted’ . . . unless certain

designated findings are made, and thereby gives rise to a con-

stitutional liberty interest.” McQuillion v. Duncan, 306 F.3d

895, 901 (9th Cir. 2002) (quoting Greenholtz, 442 U.S. at 12;

citing Bd. of Pardons v. Allen, 482 U.S. 369, 377-78 (1987)).

As in prior cases, our task here is to apply the well-established

mandatory language rule governing state-created liberty inter-

ests set forth by the Supreme Court in Greenholtz and Allen

to the Washington statutory scheme at issue.6 See, e.g., Sass

v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1127-28 (9th Cir.

2006) (holding California law creates a liberty interest in

parole); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003)

(same); McQuillion, 306 F.3d at 901-902 (same); Bermudez

v. Duenas, 936 F.2d 1064, 1065-66 (9th Cir. 1991) (holding

Guam law creates a liberty interest in parole); Baumann v.

Ariz. Dep’t of Corr., 754 F.2d 841, 843-45 (9th Cir. 1989)

(holding Arizona law does not create a liberty interest in cus-

todial release); Balla v. Idaho State Bd. of Corr., 869 F.2d

6

In his reply brief, Lehman argued that Sandin v. Connor, 515 U.S. 472

(1995) should control our liberty interest inquiry. In Sandin, the Supreme

Court considered a challenge to a prison regulation imposing disciplinary

segregation for misconduct. Id. at 475-77. In holding that the regulation

did not create a liberty interest, the Court did not apply the “mandatory

language” framework of Greenholtz and Allen. Id. at 481-86. Instead, it

focused on whether the challenged restraint arising from the regulation

“impose[d] atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life.” Id. See also Wilkinson v. Austin, 545

U.S. 209, 222-224 (2005) (applying Sandin to determine whether Ohio

inmates have a liberty interest in avoiding placement in a “supermax”

prison). As Lehman properly conceded in his supplemental submissions to

the court, we have since held that Sandin’s holding was limited to “the

separate but related question of when due process liberty interests are cre-

ated by internal prison regulations.” McQuillion, 306 F.3d at 902-03

(emphasis added). See also Sass, 461 F.3d at 1127 n.3 (explaining that this

court has “consistently rejected th[e] argument” that Sandin eliminated the

“ ‘mandatory language’ approach of Greenholtz and Allen). Accordingly,

we continue to apply the “mandatory language” rule set forth in Green-

holtz and Allen in order to determine whether Washington’s statutory

scheme creates a liberty interest in early release into community custody.

6518 CARVER v. LEHMAN

461, 469-70 (9th Cir. 1989) (holding Idaho law does not

create a liberty interest in parole). We turn to that task now.

A. The Washington statutory scheme governing early

release into community custody creates a

constitutionally protected liberty interest.

Washington law mandates that an individual convicted of

a sex offense be sentenced to a term of community custody

that “shall begin either upon completion of the term of con-

finement or at such time as the offender is transferred to com-

munity custody in lieu of earned release.” WASH. REV. CODE

§ 9.94A.710(1). Unlike other inmates, then, a convicted sex

offender who accrues “earned release time . . . for good

behavior and good performance” is not entitled to early

release; rather, he is eligible for transfer into community cus-

tody at an earlier date. WASH. REV. CODE § 9.94A.728(1),

(2)(a). The law requires the DOC to develop a program to

effectuate the transfer to community custody of such inmates.

See WASH. REV. CODE § 9.94A.728(1). As part of that pro-

gram, the Department must “require the offender to propose

a release plan that includes an approved residence and living

arrangement.” WASH. REV. CODE § 9.94A.728(2)(c). The law

then describes how the DOC should evaluate such release

plans, stating:

The department may deny transfer to community

custody status in lieu of earned release time pursuant

to subsection (1) of this section if the department

determines an offender’s release plan, including pro-

posed residence location and living arrangements,

[1] may violate the conditions of the sentence or

conditions of supervision, [2] place the offender at

risk to violate the conditions of the sentence, [3]

place the offender at risk to reoffend, or [4] present

a risk to victim safety or community safety.

CARVER v. LEHMAN 6519

WASH. REV. CODE § 9.94A.728(2)(d) (emphasis added).7

In order to comply with the statutory mandate, the DOC

promulgated Policy Directive 350.200. Under the version of

this policy in force when Carver submitted his release plan,

the DOC instructed that release plans of sex offenders be

assessed to determine “the degree of risk for victims and

potential victims of similar age or circumstances” and to

ensure that, subject to certain exceptions, “[s]ex offenders will

not return to a residence where minor victim(s) or other chil-

dren of similar age are present in the residence[.]” DOC Pol-

icy Directive 350.200 (May 4, 2001). The Policy Directive

specified that a residence proposed by an offender within a

release plan may be denied if the proposed location will place

the offender in violation of court-imposed conditions, at the

likely risk to re-offend, or in close proximity to the minor vic-

tim(s), school, child care center, playground, or other facilities

where children of similar age and circumstances surrounding

the conviction are present and who may be put at substantial

risk of harm by the offender residing at that location.8 The

7

The provision goes on to state 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 com-

munity placement.” WASH. REV. CODE § 9.94A.728(2)(d). The concurrence

argues that this sentence makes it clear that the function of section

9.94A.728(2)(d) is “to preserve to the DOC the discretion to deny transfer

in the event that it makes one of the four determinations, notwithstanding

what other legal sources might otherwise require.” Conc. Op. at 6532. We

do not disagree. The fact that the provision permits the DOC to deny

release even where other legal sources would allow for it is irrelevant,

however, to the question at hand: whether, regardless of other legal

sources, the statute itself places substantive limits on the DOC’s exercise

of discretion? As we explain infra, the provision’s preservation to the

DOC of discretion to deny transfer only “in the event that it makes one

of the four determinations[,]” is precisely the type of substantive limitation

that gives rise to the liberty interest that we now recognize.

8

The final of these criteria is drawn from section 72.09.340(3)(a) of

Washington’s Revised Code which provides that the DOC is “authorized

to reject a residence location if the proposed residence is within close

6520 CARVER v. LEHMAN

DOC’s policy also provided for the categorical denial of

release plans “if the End of Sentence Review Committee has

determined that the offender appears to meet the definition of

a sexually violent predator and s/he has been referred for Civil

Commitment . . . .”9 This final provision, under which Car-

ver’s release plan was denied, was subsequently eliminated

after the Washington Court of Appeals held that it violated the

statutory requirement that all sex offenders “may become eli-

gible” for community custody. See In re Dutcher, 60 P.3d at

638-40. See also Letter from Anne L. Fiala, Assistant Deputy

Secretary, Washington State Dep’t of Corrections, to Office

of Correctional Operations Management (Jan. 12, 2003).10

[3] Carver argues that this statutory scheme creates a pro-

tected liberty interest because it requires the DOC to transfer

proximity to schools, child care centers, playgrounds, or other grounds or

facilities where children of similar age or circumstance as a previous vic-

tim are present who the department determines may be put at substantial

risk of harm by the sex offender’s residence at that location.” WASH. REV.

CODE § 72.09.340(3)(a) (2006).

9

Washington state law defines “sexually violent predator” as “any per-

son who has been convicted of or charged with a crime of sexual violence

and who suffers from a mental abnormality or personality disorder which

makes the person likely to engage in predatory acts of sexual violence if

not confined in a secure facility.” WASH. REV. CODE § 71.09.020(16)

(2006). An offender determined to be a sexually violent predator may be

subject to civil commitment after his term of confinement. WASH. REV.

CODE § 71.09.040 (2006).

10

The DOC amended Policy Directive 350.200 in June 2002. In its

amended form, the policy provides for the denial of release plans “[w]hen

the offender’s plan is to return to a residence where there is a victim(s)

that the [department] believes is at risk[,]” and for the rejection of pro-

posed residences under the same criteria as set forth in its prior directive.

See DOC Policy Directive 350.200 (June 25, 2002). The amended policy

also initially retained the provision requiring the categorical denial of the

release plans of those who appear to meet the sexually violent predator

definition and have been referred for civil commitment. Id. As we explain

supra, the categorical denial provision was eliminated after the Washing-

ton Court of Appeals’ decision in In re Dutcher, 60 P.3d at 640.

CARVER v. LEHMAN 6521

an inmate to community custody in lieu of earned release “un-

less any one of the . . . specifically designated reasons are

found[,]” thereby “creat[ing] a presumption that . . . release

[into community custody] will be granted, and that this in turn

creates a legitimate expectation of release absent the requisite

finding that one of the justifications for [denial] exists.”

Greenholtz, 442 U.S. at 11-12. See also Allen, 482 U.S. at

377-78. We agree.

[4] The Washington statutory scheme uses language that

effectively mandates the transfer to community custody of

those inmates who have earned release time and who have not

been found to meet one of the statutory reasons for denial of

a release plan set forth in § 9.94A.728(2)(d). Section

9.94A.710(1) requires that sex offenders be sentenced to a

term of community custody to begin either when the offend-

er’s term of confinement is complete or when he is transferred

as a result of earned release time. Section 9.94A.728(1) like-

wise requires the DOC to develop and promulgate procedures

by which a sex offender may become eligible for transfer to

community custody in lieu of earned release time. The same

section then sets forth the limited circumstances under which

the Department “may deny” an inmate’s proposed plan for

transfer to community custody. WASH. REV. CODE

§ 9.94A.728(2)(d) (listing as legitimate reasons for denial, a

DOC determination that the release plan may violate the con-

ditions 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 or

community safety). By placing substantive limitations on

DOC’s discretion to deny release plans and, in particular, by

requiring that denial of such plans be based on the limited

criteria contained in section 9.94A.728(2)(d), Washington has

created a liberty interest in early release into community cus-

tody that is protected by the Due Process Clause of the Four-

teenth Amendment.11 See Allen, 482 U.S. at 375-76 (clarifying

11

At oral argument, Lehman argued that the presence of more specific

criteria for denial of proposed residence locations in section

6522 CARVER v. LEHMAN

that a state may grant “significant discretion to the decision-

maker” to apply “general or broad release criteria” without

“depriv[ing] the prisoner of the liberty interest in parole[,]” so

long as “release is required after the [decisionmaker] deter-

mines (in its broad discretion) that the necessary prerequisites

exist”). See also Baumann, 754 F.2d at 844 (noting that “[a]

state may create a constitutionally protected liberty interest by

establishing regulatory measures that impose substantive limi-

tations on the exercise of official discretion”); Bergen v.

72.09.340(3)(a) undermines Carver’s contention that the four criteria listed

in section 9.94A.728(2)(d) provide the exclusive legitimate bases for

denial of a release plan. Lehman is incorrect: the bases for denial of pro-

posed residence locations contained in section 72.09.340(3)(a) are, in

effect, specific variations of the same more general formulations set forth

for denial of release plans in section 9.94A.728(2)(d). Section

72.09.340(3)(a) provides:

[T]he department shall not approve a residence location if the

proposed residence: (i) Includes a minor victim or child of sim-

ilar age or circumstance as a previous victim who the depart-

ment determines may be put at substantial risk of harm by the

offender’s residence in the household; or (ii) is within close

proximity of the current residence of a minor victim, unless the

whereabouts of the minor victim cannot be determined or

unless such a restriction would impede family reunification

efforts ordered by the court or directed by the department of

social and health services. The department is further authorized

to reject a residence location if the proposed residence is

within close proximity to schools, child care centers, play-

grounds, or other grounds or facilities where children of simi-

lar age or circumstance as a previous victim are present who

the department determines may be put at substantial risk of

harm by the sex offender’s residence at that location.

These bases for denial of a proposed residence, which take into account

whether the residence includes or is near a past or potential victim, are

simply more specific examples of the final two criteria that serve as legiti-

mate bases for denial under § 9.94A.728(2)(d), whether the “proposed res-

idence location and living arrangements . . . place the offender at risk to

reoffend, or present a risk to victim safety or community safety.” WASH.

REV. CODE § 72.09.340(3)(a).

CARVER v. LEHMAN 6523

Spaulding, 881 F.2d 719, 721 (9th Cir. 1989) (“A board

charged with deciding a prisoner’s early release may be dele-

gated significant discretion in making its decision, and yet be

constrained by legal standards in exercising that discretion

. . . . that scheme may give rise to a liberty interest in early

release.”) (internal citation omitted).

[5] That the Washington statute governing transfer to com-

munity custody does not use the more traditional mandatory

language formula used in other early release statutes, i.e. stat-

ing that the DOC “shall” grant release “unless” certain find-

ings are made, does not require a contrary result. See Allen,

482 U.S. at 378 (rejecting the argument that a statute must

contain the “shall/unless” formula in order to create a liberty

interest). Although we have accorded significance to the use

of the term “shall” in assessing whether early release statutes

create a liberty interest, we have never held that use of this

term is required in order to satisfy the mandatory language

rule set forth in Greenholtz and Allen. Nor do we here.

Despite the absence of the word “shall,” we conclude that the

language of section 9.94A.728(2)(d) is mandatory. Section

9.94A.728(2)(d) provides that the department “may deny

transfer to community custody . . . if” any one of four criteria

is met. By establishing criteria under which release may be

denied, section 9.94A.728(2)(d) creates the presumption that,

absent the existence of one those criteria, release will be

granted. The repetition of the criteria, albeit in more specific

form, in section 72.09.340(3)(a) and in Policy Directive

350.200 confirms our understanding of the mandatory nature

of the statute.

The “may deny . . . if” formula operates in precisely the

same manner and has precisely the same effect as a “shall

grant . . . unless” clause. Under the “may deny . . . if” for-

mula, the provision sets forth the conditions under which the

agency may deny release. Otherwise, it must grant it. This is

distinguishable from state statutes that provide that a decision-

maker “may grant . . . if” certain criteria are met. Under the

6524 CARVER v. LEHMAN

“may grant . . . if” formula, the agency may only grant release

if the relevant criteria are met, but it is not required to do so.12

Therefore, under the “may deny . . . if” formula, as under a

“shall grant . . . unless” clause, there is an expectation that

release will be granted unless one of the specified conditions

exists.

Our conclusion is supported by Washington state court

decisions finding a limited liberty interest in transfer to com-

munity custody in lieu of early release, as well as interpreting

the statutory provisions governing such transfers. The Wash-

ington Court of Appeals has consistently found a “limited lib-

erty interest in early release into a community custody

program . . . .” In re Crowder, 985 P.2d at 944-45 (holding

inmate had liberty interest in grant or denial of community

custody placement upon earning of early release, but that the

minimum level of due process required to protect this interest

was provided). See also In re Dutcher, 60 P.3d at 636 (“An

inmate’s interest in his earned early release credits is a lim-

ited, but protected, liberty interest.”); In re Liptrap, 111 P.3d

1227, 1231 (Wash. Ct. App. 2005) (same).13

12

For this reason, courts have routinely held that the “may grant . . . if”

formulation does not create a liberty interest. See, e.g., Barna v. Travis,

239 F.3d 169, 171 (2d Cir. 2001) (New York parole statute); Dace v.

Mickelson, 797 F.2d 574, 577 (8th Cir. 1986) (South Dakota parole stat-

ute); Gale v. Moore, 763 F.2d 341, 343 (8th Cir. 1985) (Missouri parole

statute); Parker v. Corrothers, 750 F.2d 653, 656-657 (8th Cir. 1984)

(Arkansas parole statute); Dock v. Latimer, 729 F.2d 1287, 1288 (10th Cir.

1984) (Utah parole statute); Irving v. Thigpen, 732 F.2d 1215, 1217 (5th

Cir. 1984) (Mississippi parole statute); Candelaria v. Griffin, 641 F.2d

868, 869-70 (10th Cir. 1981) (New Mexico parole statute); Williams v.

Briscoe, 641 F.2d 274, 276-77 (5th Cir. 1981) (Texas parole statute);

Schuemann v. Colo. State Bd. of Adult Parole, 624 F.2d 172, 174 n.2 (10th

Cir. 1980); Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979) (New

York parole statute); Shirley v. Chestnut, 603 F.2d 805, 806-07 (10th Cir.

1979) (Oklahoma parole statute); Wagner v. Gilligan, 609 F.2d 866, 867

(6th Cir. 1979) (Ohio parole statute).

13

The concurrence contends that we read too much into the use of the

word “liberty interest” in these cases. It first argues that the liberty interest

CARVER v. LEHMAN 6525

Moreover, in interpreting the statutory scheme governing

early release into community custody, the state Court of

Appeals has on two occasions discussed the mandatory nature

of the law. In Dutcher, an inmate similarly situated to Carver

challenged the DOC’s failure to review his plan for release

into community custody pursuant to the Department’s policy

of categorically denying the plans of those offenders who

appeared to be sexually violent predators and who were

referred for civil commitment. 60 P.3d at 635-36. The court

held that the DOC’s policy violated the statutory mandate,

explaining that “the statute compels DOC to require offenders

to develop a release plan, and requires DOC to base its com-

recognized by the Washington Court of Appeals is merely procedural,

rather than substantive, in nature. Conc. Op. at 6533 (“In both Liptrap and

Dutcher, the Washington court’s holding concerned only the inmate’s pro-

cedural right to have his proposal considered on the merits, rather than a

substantive right to transfer.”). To the contrary, the Washington court

explained: “An inmate’s interest in his earned early release credits is a

limited, but protected, liberty interest. Likewise, the department’s compli-

ance with requirements of statutes affecting his release is a protected lib-

erty interest.” See In re Liptrap, 111 P.3d at 1231 (quoting In re Ducther,

60 P.3d at 636) (emphasis added). As this language makes clear, the

Washington court recognizes a liberty interest in both the substantive right

to earned early release (here, in the form of transfer to community cus-

tody) and the distinct procedural right to have the DOC comply with the

requirements of the statutes governing such release.

The concurrence next suggests that “the Washington Court of Appeals

is using ‘liberty interest’ far more broadly than the term of art of federal

Due Process jurisprudence . . . encompassing any right cognizable at law

with some bearing on whether one receives liberty.” Conc. Op. at 6534

n.3. That the Washington court had the federal Due Process Clause—and

not an ambiguous right otherwise recognized at law—in mind when ana-

lyzing section 9.94A.728(2) is, again, evidenced by the plain language of

its decision in Liptrap, where the court framed its discussion of the interest

at stake in the familiar terms of federal due process jurisprudence. See In

re Liptrap, 111 P.3d at 1231 (explaining that “ “[d]ue process protects

against the deprivation of life, liberty, or property” and finding that “ “[a]n

inmate’s interest in his earned early release credits is a limited, but pro-

tected, liberty interest”).

6526 CARVER v. LEHMAN

munity custody eligibility decisions on the merits of the

release plan.” 60 P.3d at 638 (emphasis added).

Our conclusion that requiring a decision on the merits of a

release plan permits the Department to deny such a plan only

if it finds one of the statutory criteria listed in section

9.94A.728(2)(d) is bolstered by the state court’s interpretation

of the statute in In re Liptrap. In Liptrap, inmates challenged

the DOC’s policy of refusing to review release plans of sex

offenders until a forensic psychological evaluation had been

completed. Id. at 1229. In finding that the Department’s pol-

icy violated inmates’ due process rights, the court explained

that “[t]he provisions in subsections [9.94A.728(2)] (c) and

(d), spell[ ] out what is required in a release plan and stat[e]

reasons why the department may deny a release[.]” Id. at

1232 (emphasis added). Accordingly, the Liptrap court found

that “the department [does not have] unlimited discretion to

decide whether and when to consider an offender for transfer

to community custody.” Id. Rather, the DOC’s failure to

“state[ ] a legitimate reason” for the denial of a release plan,

the court concluded, “deprived [the inmates] of earned early

release credits in violation of due process.” Id. at 1234

(emphasis added).14 This holding is consistent with our con-

clusion that Washington law requires that the DOC’s denial

of a release plan be based on a “legitimate reason,” and that

such reasons are enumerated in section 9.94A.728(2)(d).

[6] In sum, we hold that the Washington statutory scheme

governing transfer to community custody of those inmates

who have earned early release time creates a liberty interest

that is protected under the Due Process Clause of the Four-

14

The Liptrap court specifically noted section 72.09.340’s provision for

denial of a release plan because the proposed residence is near young chil-

dren as a “legitimate statutory reason for disapproving a release plan for

a sex offender.” In re Liptrap, 111 P.3d at 1233 & n.6 (citing WASH. REV.

CODE § 72.09.340(3)). For the reasons set forth in footnote 11 supra, this

provision is simply a specific example of the more general bases for denial

set forth in section 9.94A.728(2)(d).

CARVER v. LEHMAN 6527

teenth Amendment.15 Our next step is to determine “whether

15

We acknowledge that our holding is inconsistent with two non-

precedential dispositions of this court, as well as the unpublished decisions

of several federal district courts that have addressed this question. See

Dutcher v. Lehman, No. 06-35043, 2007 WL 1742794 (9th Cir. June 14,

2007); Chaney v. Lehman, No. 05-36116, 2007 WL 870358 (9th Cir. Mar.

22, 2007); Duncan v. Lehman, No. C04-5633RBL, 2006 WL 1548820

(W.D. Wash. June 2, 2006); Garcia v. Lehman, No. C04-5893FDB, 2006

WL 827957 (W.D. Wash. Mar. 23, 2006). The district court dispositions

are in no way binding and, for the reasons set forth above, we do not

believe that they reach the correct result.

The contrary dispositions of our own court do give us pause, although

when the panel involved deliberately chooses to make its views non-

precedential we would be disregarding our duty to exercise our indepen-

dent judgment if we treated those views as controlling on the court. See

9TH CIR. R. 36-3. Still we examine the less formal views of our colleagues

with some deference, while bearing in mind the ultimate status our col-

leagues have chosen to have us and all future panels afford those views.

In Chaney, one of the two non-precedential dispositions filed by our col-

leagues, Washington inmates held beyond the date that they were or would

be eligible for release into community custody appealed the denial of their

release without a prior hearing. 2007 WL 870358, at *1. In affirming the

district court’s dismissal of their section 1983 claim, the Chaney panel

reached two alternative holdings. One, with only the cursory observation

that “[t]he Washington statute grants a significant degree of discretion to

the DOC[,]” the panel found that state law did not create a liberty interest

in release into community custody. Id. However, as the Supreme Court

explained in Allen, “the presence of general or broad release criteria—

delegating significant discretion to the decisionmaker . . . . is not incom-

patible with the existence of a liberty interest.” Allen, 482 U.S. at 375-76

(emphasis added). Two, acknowledging that Washington state courts have

found a limited liberty interest, the panel concluded that even assuming

the existence of such an interest, the process demanded by the Chaney

plaintiffs—a hearing—was not required. 2007 WL 870358, at *2. In the

present case, Carver argues only that he was entitled to some form of pro-

cess before his release plan was summarily rejected, not that he was enti-

tled to a full hearing. Thus, the alternative Chaney holding is in no way

inconsistent with the conclusion we reach here. In Dutcher, the second of

the two non-precedential dispositions, the panel’s conclusion that Wash-

ington law does not create a liberty interest in early release into commu-

nity placement was supported only by a citation to Greenholtz. Dutcher,

2007 WL 1742794, at *1. For the reasons set forth above, we believe that

Greenholtz supports the existence of a liberty interest. The Dutcher

panel’s failure to provide any reasoning in its disposition makes it impos-

sible for us to address the merits of its conclusion to the contrary.

6528 CARVER v. LEHMAN

the procedures attendant upon th[e] deprivation [of Carver’s

liberty interest] were constitutionally sufficient[.]” Thompson,

490 U.S. at 460. Carver’s release plan was denied under a cat-

egorical policy that provided him with no process at all; it

simply rejected all plans of offenders who, like Carver,

appeared to fall under the definition of a sexually violent

predator and who were referred for civil commitment.

Accordingly, we conclude that the complete absence of proce-

dures deprived Carver of his liberty interest in transfer to

community custody without due process of law.

B. Qualified Immunity

[7] Qualified immunity protects “government officials . . .

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Our qualified immunity

analysis proceeds in two parts. First, we consider whether

“the facts alleged show that [Lehman’s] conduct violated a

constitutional right[.]” Galen, 477 F.3d at 658-59 (citing Sau-

cier v. Katz, 533 U.S. 194, 200-02 (2001)). For the reasons

discussed above, we answer this question in the affirmative.

Second, we ask if “the right [Lehman is] alleged to have vio-

lated [was] clearly established such that a reasonable [official]

would have understood that he was violating that right[.]” Id.

We conclude that the answer to this question is no.

[8] In determining whether the right alleged to have been

violated was clearly established, we must consider the right

“in light of the specific context of the case, not as a broad

general proposition[.]” Saucier, 533 U.S. at 201. “ ‘The con-

tours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.’ ” Saucier, 533 U.S. at 202 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). Here, because section

9.94A.728(2)(d) does not use the more common mandatory

term “shall,” a reasonable correctional official might not have

CARVER v. LEHMAN 6529

understood that the Washington statutory scheme created a

liberty interest in early release into community custody. Cer-

tainly, the question was highly debatable at the time that Leh-

man was required to act. Carver’s plan was denied before the

Washington Court of Appeals had issued its decisions in Dut-

cher and Liptrap, which clarified that not only does a limited

liberty interest exist under state law, but that the DOC’s dis-

cretion to deny release into community custody is limited to

rejection of a plan on the basis of the legitimate statutory

criteria set forth in section 9.94A.728(2)(d).

[9] Because we conclude that the right at issue here was not

sufficiently clear at the time of the facts giving rise to this

case such that a reasonable official would understand that

denying a release plan without providing a legitimate statu-

tory reason for that denial would violate due process, we

affirm the district court’s grant of qualified immunity.

III. Conclusion

Washington state law creates a liberty interest in an

inmate’s early release into community custody that is pro-

tected under the Due Process Clause of the Fourteenth

Amendment. Carver was denied his due process right by the

state officials’ refusal to approve his release plan without

reviewing it on its merits. At the time, however, the due pro-

cess right arising from the existence of his liberty interest was

not sufficiently clearly established to meet the Saucier stan-

dard. We therefore affirm the district court’s determination

that Lehman is entitled to qualified immunity.

AFFIRMED.

MILAN D. SMITH, JR., Circuit Judge, concurring in the

judgment:

I respectfully part ways with the majority. I do not believe

that Washington State law creates a Fourteenth Amendment

6530 CARVER v. LEHMAN

liberty interest in early release into community custody. The

majority erroneously conjures a statutory liberty interest, pro-

tected by the Due Process Clause, out of Wash. Rev. Code

§ 9.94A.728(2) only by confusing “may” and “shall” and by

reading “if” to mean “only if.”

I.

“The preeminent canon of statutory construction requires

us to presume that the legislature says in a statute what it

means and means in a statute what it says there.” BedRoc Ltd.

v. United States, 541 U.S. 176, 183 (2004) (internal quotation

marks and alterations omitted). Far from using “the more tra-

ditional mandatory language formula used in other early

release statutes,” Maj. Op. at 6523, section 9.94A.728(2)(d)

instead uses traditional permissive “may . . . if” language used

in statutes that create no liberty interest. Had the Washington

State Legislature meant to write a statute limiting the discre-

tion of the DOC, it could easily have said so. Section

9.94A.728(2)(d) states that the DOC “may deny” convicted

sex offenders transfer to community custody “if” it makes

certain determinations about the offender’s proposed release

plan. It says nothing about the criteria for granting the

request, let alone detailing circumstances under which the

DOC must do so.

The majority overcomes the legislature’s failure to specify

any criteria for granting a request by holding that the determi-

nations mentioned in section 9.94A.728(2)(d) are the only

conditions on which the DOC may deny transfer, and there-

fore requiring that it grant in all other cases. Maj. Op. at

6523-24. One searches the statute in vain, however, for any

indication that those determinations are the exclusive reasons

that the DOC “may deny” transfer. The criteria of section

9.94A.728(2)(d) are sufficient to deny sex offenders transfer,

but are not necessary. Had the legislature wished to make

CARVER v. LEHMAN 6531

them necessary, it would have used not “if” but “only if,” or

some semantic equivalent.1

In some cases, a court may read the word “if” to mean

“only if.” The canon of construction expressio unius est exclu-

sio alterius stands for the proposition that, when the legisla-

ture provides a list of related items, it impliedly means to

exclude other items. See Norman J. Singer, 2A Sutherland

Statutes and Statutory Construction § 47:23 (7th Ed. 2007).

Such a result obtains, however, only where there is some rea-

son to believe that the legislature intended that the enumera-

tion be exclusive—or at the very least in the absence of

evidence to the contrary. “The maxim expressio unius est

exclusio alterius is an aid to construction, not a rule of law.

It can never override clear and contrary evidences of [legisla-

tive] intent.” Neuberger v. Comm’r, 311 U.S. 83, 88 (1940);

see also Wash. State Labor Council v. Reed, 65 P.3d 1203,

1209 (Wash. 2003) (“[T]he rule of expressio unius est exclu-

sio alterius d[oes] not necessarily apply without considering

1

It is true that there are no magic words necessary for the legislature to

create a liberty interest. Bd. of Pardons v. Allen, 482 U.S. 369, 378 (1987).

There are any number of other ways the legislature might have accom-

plished the result the majority reads into section 9.94A.728(2)(d). It might

have said the DOC “shall” grant release “unless” the criteria are met or

“if” they are not; it might have said that it “may” deny release “only if”

the criteria are met, or “except in the event” they are not; it might have

come up with another formulation that means substantially the same thing.

The distinction between “if” and “only if,” however, is not a mere quib-

ble over vocabulary—it goes right to the heart of whether the criteria of

section 9.94A.728(2)(d) are necessary or sufficient conditions for transfer,

and therefore whether transfer is mandatory or entirely discretionary.

“May . . . only if” would be effectively identical to “shall . . . unless ”;

“may . . . if” is not. Contra Maj. Op. at 6523-24. In formal terms, the

majority commits the fallacy of denying the antecedent: from the premise

“if P, then Q,” it does not follow from “not P” that “not Q.” See generally

Ruggero J. Aldisert, Logic for Lawyers 160-61 (3d ed. 1997); Bruce N.

Waller, Critical Thinking 112-13 (5th ed. 2005); Wikipedia, Denying the

antecedent, available at http://en.wikipedia.org/wiki/Denying_the_

antecedent (Last accessed May 30, 2008).

6532 CARVER v. LEHMAN

other factors which may persuade the court that legislative

intent was the opposite of what the statutory construction rule

would require.”). In this case, however, the majority uses the

technique sub silentio to override the unambiguously discre-

tionary language in the statute (“may”).

The language of Wash. Rev. Code section 9.94A.728(2)(d)

makes it clear that the provision’s purpose is to expand the

discretion of the DOC. This makes the majority’s implicit

expressio unius reading especially inappropriate. The statute

states: “The department’s authority under this section is inde-

pendent of any court-ordered condition of sentence or statu-

tory provision regarding conditions for community custody or

community placement.” Wash. Rev. Code § 9.94A.728(2)(d).

That language makes the function of section 9.94A.728(2)(d)

apparent: to preserve to the DOC the discretion to deny trans-

fer in the event that it makes one of the four determinations,

notwithstanding what other legal sources might otherwise

require. The majority’s reading of the statute, however, turns

that meaning on its head, transmuting a non obstante provi-

sion written to preserve or expand discretion into one with the

effect of limiting it.

II.

I might still concur with this misreading of section

9.94A.728(2)(d), however, if the Washington State courts had

similarly misread the statute. See Bergen v. Spaulding, 881

F.2d 719, 721 (9th Cir.1989) (“Whether a state statute pro-

vides such a protectable entitlement depends on the structure

and language of the statute, as well as the state courts’ inter-

pretation of the scope of the interest.”) (emphasis added). But,

notwithstanding the majority’s characterization of state prece-

dent, they have not.

The majority quotes language from Washington intermedi-

ate appellate courts recognizing a “limited liberty interest” in

early release. Maj. Op. at 6524 (quoting In re Liptrap, 111

CARVER v. LEHMAN 6533

P.3d 1227, 1231 (Wash. Ct. App. 2005); In re Dutcher, 60

P.3d 635, 636 (Wash. Ct. App. 2002); In re Crowder, 985

P.2d 944, 944-45 (Wash. Ct. App. 1999)). What the majority

omits is the nature of that state “liberty interest.” In both Lip-

trap and Dutcher, the Washington court’s holding concerned

only the inmate’s procedural right to have his proposal con-

sidered on the merits, rather than a substantive right to transfer.2

Liptrap, 111 P.3d at 1234; Dutcher, 60 P.3d at 638. This was

based, in large part, on the only truly mandatory language

found in section 9.94A.728(2), mandating that the DOC “shall

. . . require the offender to propose a release plan.” Wash.

Rev. Code § 9.94A.728(2)(c); see Dutcher, 60 P.3d at 638.

Unfortunately, “expectation of receiving process is not, with-

out more, a liberty interest protected by the Due Process

Clause” of the Fourteenth Amendment. Olim v. Wakinekona,

461 U.S. 238, 250-51 n.12 (1983); see also In re Cashaw, 866

P.2d 8, 12 (Wash. 1994) (“The United States Supreme Court

and the Ninth Circuit have clearly held that procedural laws

do not create liberty interests; only substantive laws can

create these interests.”). Washington State law permits prison-

ers to challenge DOC violations of parole procedures, but it

grounds this right to process in state law, not in the federal con-

stitution.3 While the DOC has, therefore, no “discretion to

2

Crowder, decided in 1999, predated the 2002 enactment of the statute

supposedly creating the liberty interest at issue in this case. Liptrap, 111

P.3d at 1232 & n.3.

3

See Cashaw, 866 P.2d 8, 13 (Wash. 1994) (“The Court of Appeals was

correct in concluding the Board had violated its own procedural rules for

parolability hearings . . . . Where the Court of Appeals erred was in taking

the additional step of concluding this violation was of constitutional mag-

nitude.”). Cashaw instead held that the inmate’s right to challenge his

restraint because of procedural error is grounded in Washington Rule of

Appellate Procedure 16.4. Id. at 13-14. Notwithstanding the holding of

Cashaw, Dutcher refers to an inmate’s “protected liberty interest” in “the

department’s compliance with requirements of statute affecting his

release,” citing Cashaw itself for the proposition. 60 P.3d at 636 & n.3

(citing Cashaw, 866 P.2d at 11).

As the majority notes, Dutcher “recognizes a liberty interest in both the

substantive right to early release . . .and the distinct procedural right to

6534 CARVER v. LEHMAN

decide whether or when to consider an offender for transfer

to community custody,” Liptrap, 60 P.3d at 638 (emphasis

added), Washington’s courts have given no indication that its

discretion is substantially limited in how it makes that consid-

eration.

None of the cases cited by the majority implies that the

criteria in section 9.94A.728(2)(d) are the exclusive reasons

that the DOC may deny transfer to community custody. Lip-

trap notes that the statute “stat[es] reasons why the depart-

ment may deny a release plan,” 111 P.3d at 1232, but those

“reasons” are kept in the indefinite: they are just “reasons”—

not the reasons, let alone the only reasons—for denial. Simi-

larly, Dutcher held that “the statute . . . requires DOC to base

its community custody eligibility decisions on the merits of

the release plan,” 60 P.3d at 638, but does not imply that sec-

tion 9.94A.728(2)(d) provides the sole rubric by which those

“merits” are to be evaluated.

have the DOC comply with the requirements of the statutes governing

such release.” Maj. Op. at 6524-25 n.13 (emphasis added). Because Dut-

cher’s holding concerns only the latter, procedural right, its description of

the former can only be described as dicta. As with much dicta, it risks

imprecision, using the same term, “liberty interest,” to refer both to the

substantive interest in transfer, which could conceivably be a Fourteenth

Amendment “liberty interest,” and the procedural right to compliance with

regulation, which cannot. If a chef announces that the dessert will consist

of “fruit,” but in the very next breath lists “herring” and “quartz” as other

kinds of “fruit,” one might be forgiven in beginning to doubt that the

dish’s ingredients have necessarily been plucked off a tree.

Notwithstanding its use of traditional Due Process Clause terminology

and concepts, therefore, the only charitable reading of Dutcher, not

squarely foreclosed by both United States and Washington State Supreme

Court precedent, is that the Washington Court of Appeals is using “liberty

interest” far more broadly than the term of art of federal Due Process juris-

prudence that the majority contemplates, encompassing any right cogniza-

ble at law with some bearing on whether one receives liberty. No other

reading is possible in light of precedent that has held that a right to process

is no more a Fourteenth Amendment “liberty interest” than a herring is a

fruit. Olim, 461 U.S. at 250-51 n.12; Cashaw, 866 P.2d at 12.

CARVER v. LEHMAN 6535

Washington courts have implied only one limit on the sub-

stance of the DOC’s exercise of discretion: its reasons for

denial must be “legitimate.” Id. But contrary to the majority’s

assertions, there is no indication that a reason may acquire

“legitimacy” only by its enumeration in section

9.94A.728(2)(d). Indeed, there is every indication to the con-

trary: it was Crowder, a decision predating the enactment of

section 9.94A.728(2)(d) by three years, that first mentioned

“legitimate reasons” for denial of community custody. 985

P.2d at 946. Moreover, Crowder specified the petitioner’s

“own withdrawal of a suggested placement plan” as among

the “legitimate reasons” for denying him transfer, id.—a rea-

son which certainly seems legitimate, but appears nowhere in

section 9.94A.728(2)(d). Neither Dutcher nor Liptrap hint

that subsequent codification of certain legitimate reasons has

somehow narrowed the range of legitimacy, and no Washing-

ton case has provided a general definition for what makes a

reason “legitimate,” which could be as broad as “any reason

not otherwise proscribed by law.”4 This ill-defined “right” to

transfer only in the absence of some “legitimate” reason to

deny is hardly sufficient to produce the “legitimate expecta-

tion of release” required of a protected liberty interest under

Greenholtz v. Inmates of the Nebraska Penal and Corr. Com-

plex, 442 U.S. 1, 12 (1979). Washington case law, in short,

provides no reason for us to disregard the text and manifest

purpose of section 9.94A.728(2).

* * *

For the reasons set forth above, I would join the two district

courts and two panels of this court, see Maj. Op. at 6526 n.14,

that have all held that section 9.94A.728(2) does not create a

liberty interest protected by the Due Process clause of the

Fourteenth Amendment. I would therefore not reach the issue

4

Under such a reading, the DOC, for example, could not deny transfer

to someone on account of his race or religion. Such a condition may limit

the DOC’s discretion, but scarcely enough to give rise to any “expecta-

tion” of transfer.

6536 CARVER v. LEHMAN

of whether the “right” announced today was “clearly estab-

lished.”