Donald Herrick v. Kevin Quigley;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD HERRICK,
Plaintiff-Appellant,
v.
KEVIN QUIGLEY; et al.,
Defendants-Appellees.
No. 17-35042
D.C. No. 3:15-cv-05016-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted December 7, 2018
Seattle, Washington
Before: THOMAS, Chief Judge, and McKEOWN and CHRISTEN, Circuit
Judges.
Donald Herrick, a pre-adjudication civil detainee at the Washington State
Special Commitment Center (“SCC”), filed this pro se action pursuant to 42 U.S.C.
§ 1983 alleging that several of the SCC’s policies violate his First and Fourteenth
Amendment rights. The district court granted summary judgment in favor of all
FILED
FEB 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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defendants on all of Herrick’s claims. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.1
1. Herrick’s First Amendment Claims. Herrick is awaiting a hearing to
determine whether he will be deemed a sexually violent predator, and he is
detained in a “total confinement facility[.]” Wash. Rev. Code 71.09.040(4). We
apply the familiar framework outlined in Turner v. Safley, 482 U.S. 78 (1987), to
his First Amendment claims. Our application of Turner, however, is complicated
by the sparse record. While we apply “the requirements of the summary judgment
rule with less than strict literalness” when evaluating a pro se prisoner’s claims,
Jacobsen v. Filler, 790 F.2d 1362, 1365 n.4 (9th Cir. 1986) (internal quotation
marks omitted), we cannot stitch together Herrick’s arguments from whole cloth.
It is difficult to evaluate whether the internet policy or the Alder Unit computer ban
1 Because the parties are familiar with the facts and arguments on
appeal, we recite them only as necessary.
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are reasonably related to Herrick’s treatment plan because the record only includes
what appear to be two addenda to his treatment plan.2
Nevertheless, we conclude that the first Turner factor—whether there is a
“‘valid, rational connection’ between the prison regulation and the legitimate
governmental interest put forward to justify it”—weighs in the State’s favor.
Turner, 482 U.S. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)).
The State has valid security interests in managing internet and computer access for
detainees in a total confinement facility of this nature, and the challenged policies
are reasonably related to that interest. Herrick has not shown that the remaining
Turner factors weigh in his favor. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (summary judgment is appropriate “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.”). In sum, we
2 To the extent that Herrick asserts a facial challenge to the SCC’s
policies, we find his argument even less persuasive because the SCC clearly has
valid therapeutic reasons for denying internet and computer access to detainees on
the basis of their treatment requirements. To prevail in a facial challenge based on
the First Amendment, a plaintiff must either demonstrate that “no set of
circumstances exists under which [the regulation] would be valid,” or that “a
substantial number of its applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 472–73
(2010) (internal quotation marks omitted). Herrick has not satisfied either test.
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conclude that the district court did not err when it granted summary judgment on
Herrick’s First Amendment claims.
2. Herrick’s Substantive Due Process Claims. Although we ordinarily are
“reluctant to expand the concept of substantive due process” where a textual
constitutional provision provides a more specific basis for relief, Cty. of
Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (internal quotation marks omitted),
a civil detainee’s right to be free from conditions that amount to punishment is a
well-established right protected by the substantive due process guarantee. See,
e.g., Jones v. Blanas, 393 F.3d 918, 932 (2004). Assuming that the circumstances
here give rise to First Amendment claims as well as substantive due process claims
challenging Herrick’s conditions of confinement, the district court did not err by
granting summary judgment in defendants’ favor on Herrick’s claims arising from
the SCC internet ban and the Alder Unit computer ban. “[P]unitive conditions may
be shown . . . where the challenged restrictions serve [a] non-punitive purpose but
are nonetheless ‘excessive in relation to [that] purpose[.]’” Id. (quoting Demery v.
Arpaio, 378 F.3d 1020, 1028 (9th Cir. 2004)). When “a SVP[] detainee is confined
in conditions identical to, similar to, or more restrictive than, those in which his
criminal counterparts are held, we presume that the detainee is being subjected to
‘punishment.’” Id. Similarly, “when an individual awaiting SVP[] adjudication is
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detained under conditions more restrictive than those the individual would face
following SVP[] commitment, we presume the treatment is punitive.” Id. at 933.
These presumptions, however, have little utility for present purposes. The record
does not show that pre-trial criminal detainees in Washington have access to
personal computers or the internet, or that Herrick would have such access after
adjudication. Ultimately, we are not persuaded that the SCC’s policies are
“excessive in relation” to the plainly non-punitive purposes of preserving
institutional security and the therapeutic environment. Id. at 932.
3. Herrick’s Procedural Due Process Claim. The district court concluded that
Herrick lacked a protected interest in the personal computer he purchased after
moving off Alder Unit. We agree with the district court’s alternative ruling:
assuming Herrick had a protected liberty or property interest in his personal
computer, he received all the process he was due. Applying Mathews v. Eldridge,
424 U.S. 319 (1976), we are particularly mindful of the government’s interest in
quickly identifying illegal or inappropriate use of technology and preventing its
further abuse in a facility of this nature. This interest, weighed against Herrick’s
necessarily circumscribed interest in his personal property within the SCC’s
institutional setting, supports the adequacy of the process here. Herrick was
provided with an opportunity to hear the allegations against him, to appear in
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person at a hearing, and to present his version of events. The Constitution does not
demand more.
AFFIRMED.
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