Demian Trevor O’keeffe v. Karla Erkenbrecher

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEMIAN TREVOR O’KEEFFE,
Plaintiff-Appellant,
v.
KARLA ERKENBRECHER,
Defendant-Appellee.
No. 11-17558
D.C. No. 2:04-cv-01695-GGH
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Gregory G. Hollows, Magistrate Judge, Presiding
Argued and Submitted July 10, 2014
San Francisco, California
Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PIERSOL, Senior
District Judge.**
Demian Trevor O’Keeffe appeals from summary judgment granted to Carla
Erkenbrecher. Erkenbrecher was O’Keeffe’s parole officer who allegedly failed to
FILED
APR 08 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.

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give O’Keeffe notice of his parole retention while he was being supervised in Nevada.
This alleged failure caused O’Keeffe to not initially appeal his parole retention.
O’Keeffe was subsequently advised of his parole retention (when he was back in
prison) and was allowed the right to appeal that retention. O’Keeffe did not then
appeal the retention and initiated this 42 U.S.C. § 1983 lawsuit in 2004 claiming due
process violations for the claimed initial failure of notification.
Previous proceedings in this case prior to remand are stated in O’Keeffe v.
Rimmer, et al., No. 07-15831, 328 Fed. Appx. 563 (9th Cir. July 7, 2009)
(memorandum of disposition). On remand, Erkenbrecher, the remaining Defendant,
again moved for summary judgment. The Magistrate Judge agreed that no liberty
interest was created by California Penal Code Section 3001. Accordingly, he denied
Plaintiff’s motion for summary judgment and granted Defendant’s cross motion for
summary judgment. This appeal followed.
The process for retaining an individual on parole in California does not provide
the individual with the right to attend the hearing or otherwise be heard. Cal. Code
Regs.tit. 15, § 2535(c) (2015). Instead, the Board of Prison Terms (“BPT”) makes its
determination independently and then must subsequently send notice of its
determination to the parolee. Cal. Penal Code § 3001(a)(3). The parolee then has the
right to appeal the BPT’s decision. Cal. Code Regs.tit. 15, § 2535(c) (2015).
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O’Keeffe argues that he was denied due process because he allegedly did not receive
notice of his retention on parole and as a result was not able to make a timely appeal
of the retention.
Multiple California cases have addressed situations where notice of parole
retention was not properly sent to a parolee. See People v. Jack, 70 Cal. Rptr. 2d 676,
678 (Cal. Ct. App. 1997); In re Ruzicka, 281 Cal. Rptr. 435, 438 (Cal. Ct. App. 1991).
In each of the California cases, the California Court of Appeal concluded that the
failure to send notice of the BPT’s determination was a due process violation. See,
e.g., Jack, 70 Cal. Rptr. 2d at 678-79. However, after finding a due process violation,
the California Court of Appeal explained:
Appellant had no right to participate in the initial BPT proceeding to
determine whether his parole would be extended. Thus, that decision
and appellant’s resulting parole status were valid and effective unless set
aside on administrative appeal of the determination. Accordingly, the
appropriate remedy now is to place appellant in the position he would
have been had he been accorded due process. We therefore remand to
allow the trial court to modify its ruling by ordering the CDC to transmit
to appellant a copy of the written parole retention record so that he may
have the opportunity to pursue his right of appeal.
Id. at 679 (footnotes omitted).
Although California appellate court cases do not bind our court, the Supreme
Court, in Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), overruled on other grounds
by Daniels v. Williams, 474 U.S. 327 (1986), has determined that, when a plaintiff
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claims a deprivation of a liberty or property interest caused by an unauthorized act by
a state actor, the plaintiff cannot state a claim when the state provides an adequate
post-deprivation remedy. See also Hudson v. Palmer, 468 U.S. 517, 533 (1984),
overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). “Whatever
liberty interest exists is, of course, a state interest created by California law. There is
no right under the Federal Constitution to be conditionally released before the
expiration of a valid sentence, and the States are under no duty to offer parole to their
prisoners.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (citing Greenholtz v.
Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979)).
In this case, it is undisputed that the state subsequently provided O’Keeffe with
a copy of the BPT’s parole retention determination and allowed him to appeal, the
exact remedy provided under California law. O’Keeffe argues that the remedy was
not adequate because he did not receive notice of the retention determination until ten
months after he had been returned to prison. Although not binding upon this court,
we note that parolees in California cases have had to wait much longer for relief. See,
e.g., In re Ruzicka, 281 Cal. Rptr. at 436-37 (2 years). O’Keeffe recognizes that
although Swarthout held that federal courts should defer to state courts on questions
of whether state law was properly applied, the case also held that such a determination
had no bearing on whether due process was satisfied. We hold that the remedy
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provided by California in this case, under these facts, was an adequate post-
deprivation remedy. Therefore, assuming, without deciding, that O’Keeffe’s due
process rights were violated, he nonetheless received the appropriate state remedy.
Under the facts of this case, due process was satisfied by the remedy provided.
O’Keeffe chose to not avail himself of the post-deprivation remedy. Thus, O’Keeffe
cannot state a claim under Parratt.
The dismissal of O’Keeffe’s claims is affirmed.
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