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Simon v. Murphy

United States District Court, W.D. Washington, Seattle

January 30, 2014

DERRICK M. SIMON, Plaintiff,
ROBIN MURPHY, et al., Defendants.


MARY ALICE THEILER, Chief Magistrate Judge.


Plaintiff Derrick M. Simon proceeds pro se and in forma pauperis in this civil rights matter pursuant to 42 U.S.C. § 1983. He names as defendants Robin Murphy and Sally Neiland, both of whom, at the time of the events at issue in this case, served as Correctional Mental Health Unit Supervisors for the Washington State Department of Corrections (DOC) at the Twin Rivers Unit of Monroe Correctional Complex (MCC/TRU or TRU). The Court previously dismissed plaintiff's claim that his expulsion from the DOC's Sex Offender Treatment Program (SOTP) violated his Fourteenth Amendment rights to procedural and substantive due process, and left open his equal protection claim. (Dkt. 40.)

Now before the Court is Defendants' Motion for Summary Judgment regarding plaintiff's remaining claim (Dkt. 56), and Plaintiff's Cross Motion for Summary Judgment or Request for Leave to Amend (Dkt. 59). Having considered all documents filed in support and opposition to the motion, along with the remainder of the record, the Court concludes defendants' motion should be GRANTED, plaintiff's cross motion should be DENIED, and plaintiff's equal protection claim and this matter should be DISMISSED.


The DOC offers sexual deviancy treatment to offenders through the SOTP. ( See Dkt. 56, Ex. 1, Attach. B (DOC Policy 570.000)). SOTP provides treatment to "as many as 200 medium security offenders" at two facilities - the TRU and Airway Heights Corrections Center. ( Id. ) To enter into SOTP, an offender must sign a document acknowledging the rules of the program. ( Id. at 7.) An offender "may be terminated" from SOTP for, inter alia, fighting or assaultive behavior, behaviors disruptive to the orderly operation of the program or the secure and orderly operation of the facility, or a lack of progress in treatment as determined by clinical staff. ( Id. at 7-8.)

Plaintiff was convicted and sentenced in 2004 on counts of Indecent Liberties and Promoting Prostitution in the First Degree. (Dkt. 67, Ex. 1, Attach A.)[1] He first entered SOTP in 2007 and was terminated from the program following a hearing in 2008. (Dkt. 56, Ex. 1, ¶4 (Murphy attests that "a separatee was placed on Simon that no longer allowed him to remain at TRU[, ]" as it did not allow him "to reside in the same institution as another offender or offenders."); see also id., Ex. 1, Attach. A (letters regarding 2008 termination).)

In December 2009 or early January 2010, plaintiff was allowed to re-enter SOTP. ( Id., Ex. 1, ¶4 and Ex. 2, ¶5.) Prior to his re-entry, in August 2009, plaintiff signed an Informed Consent for SOTP Treatment reflecting his agreement to follow the rules of treatment and acknowledging that failure to follow the rules may result in disciplinary action, that certain infractions may result in a transfer from TRU for custody reasons, and that such a transfer may result in termination from treatment. ( Id., Ex. 2, Attach. A.)

Plaintiff was again terminated from SOTP shortly after his re-entry into the program. An SOTP Termination form reflects that, on the third day of treatment, plaintiff was "removed from group" following "disruptive behavior and lack of accountability for his actions." (Dkt. 67, Ex. 1, Attach. B.) Following a hearing, plaintiff was "found to be in possession of an extensive business plan involving hooking up' men with young women from outside the U.S., 1, 000 images of females, some minors and 6 photos he ordered that were pornographic." ( Id. ) Both Murphy and Neiland, along with one other individual, signed off on the termination form on January 28, 2010. ( Id. )

Notations in OMNI, a DOT database, reflect that plaintiff had been placed on administrative segregation following his report of an assault by his cell partner on January 25, 2010, and, on the following day, "[h]undreds of commercial photos of young women, some possibly underage, were retrieved in a cell search, " as well as "a well developed Business Plan to market women for dating' incarcerated men[, ]" which was "seen as significant[]" given plaintiff's history of "violence against women and attraction to minor females[.]" ( Id., Attach. C.) ( See also id., Ex. 2 (Declaration of Ron Taggart-Deffinbaugh, a former Custodial Unit Supervisor at TRU, addressing his OMNI entries regarding plaintiff's 2010 SOTP termination).) An additional notation shows plaintiff's SOTP termination was upheld by "Team Leaders and Director of SOTP[, ]" and states: "Termination is based on disruptive behavior in group, deception with treatment staff, use and extent of sexually explicit materials some of which depicted very young looking girls that appeared to be adolescent/young teenagers. Additionally trafficking of these materials on treatment unit and aggressive behaviors towards offenders on A unit." ( Id., Ex. 1, Attach. C.) ( See also id., Ex. 2.)

The OMNI report also reflects that, in February 2010, plaintiff was demoted to medium custody and approved for transfer following a review by Hearings Specialist S. Collins and approval by Associate Superintendent H. Anderson. ( Id., Ex. 1, Attach. C.) Murphy and Neiland attest they had no involvement in the determination of plaintiff's custody level. (Dkt. 56, Ex. 1, ¶7 and Ex. 2, ¶7.) They further attest that, given the change in custody status, plaintiff could no longer remain at TRU, which is a minimum custody facility. ( Id. )

An Administrative Segregation Review form submitted by plaintiff is consistent with the OMNI narrative. The forms states that, following plaintiff's placement in administrative segregation, a search of his property revealed "hundreds of sexual posed photos of young women as well as an extensive business plan with the apparent purpose of matching offenders with women overseas." (Dkt. 59, Appx. D at 2.) The form further states: "SOTP supervisors determined these were overriding indicators that Simon was still not sufficiently motivated to work on his sexual deviancy issues and further that his continued presence at TRU would likely have a negative impact on other participants." ( Id. ) S. Collins, on February 2, 2010, concurred with the recommendation and signed off on the form. ( Id. )


Summary judgment is appropriate when a "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court must draw all ...

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