FILED
NOT FOR PUBLICATION FEB 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDMUND DAILEY, on behalf of himself No. 12-35164
and others similarly situated,
D.C. No. 2:11-cv-01250-JLR
Plaintiff - Appellant,
v. MEMORANDUM *
STATE OF WASHINGTON; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Former Washington state prisoner Edmund Dailey appeals from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging federal due process and
state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo, Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012), and we affirm.
The district court properly dismissed Dailey’s due process claim because
Dailey did not have a protected liberty interest in an early transfer to community
custody where the Washington Department of Corrections (“WDOC”) had
discretion to deny transfer until such time as it had completed its statutorily
required community notice under section 72.09.712 of the Washington Revised
Code. See Carver v. Lehman, 558 F.3d 869, 879 (9th Cir. 2009); see also In re
Pers. Restraint of Mattson, 214 P.3d 141, 147-48 & n.9 (Wash. 2009)(only limit
on the substance of WDOC’s discretion is that its reasons for denial must be
legitimate; risk presented by presence at the proposed residence is only one of
many reasons by which WDOC may deny transfer to community custody after
prisoner has been determined eligible). Contrary to Dailey’s contentions, the fact
that WDOC policy requires community notice to be sent at least 35 days prior to
transfer is consistent with the statutory requirement that notice be provided “[a]t
the earliest possible date, and in no event later than thirty days before release.”
Wash. Rev. Code § 72.09.712(1).
The district court properly dismissed Dailey’s state law claims for
negligence and false imprisonment because Dailey failed to show that defendants
had a duty to release him early. See Stalter v. State, 86 P.3d 1159, 1162 (Wash.
2 12-35164
2004) (claims of negligence and false imprisonment each turn on the existence of a
duty to release the individual).
AFFIRMED.
3 12-35164