JOHN D. BATES, United States District Judge.
Plaintiff John Doe brings this action against the U.S. Parole Commission and the Court Services and Offender Supervision Agency for the District of Columbia ("CSOSA"). He challenges the imposition of a "Sex Offender Aftercare [Assessment]" condition on his supervised release, and seeks declaratory and injunctive relief. Now before the Court are Doe's motion for a preliminary injunction barring enforcement of the assessment condition and defendants' motion to dismiss in part and for summary judgment. For the reasons set forth below, defendants' motion for summary judgment will be granted and Doe's motion will be denied.
In April 2010, Doe was convicted in D.C. Superior Court of assault with a deadly weapon and carrying a pistol without a license. See Defs.' Mot. to Dismiss in Part & for Summ. J. & Opp'n to Pl.'s PI Mot. [ECF 18] ("Defs.' MSJ"), Ex. 1 [ECF 22] 1-2. He was sentenced to 28 months' incarceration and a three-year term of supervised release, which he is currently serving. See id., Ex. 2 [ECF 22-1]; Compl. [ECF 2] ¶ 32. Doe's conditions of supervised release are set by the Parole Commission. See D.C. Code § 24-403.01(b)(6). CSOSA is responsible for Doe's supervision during his supervised release term. See id. § 24-133(c)(2).
In November 2011, Doe was released from prison to a halfway house. See Compl., Ex. 6 [ECF 2-4]. He was told that he would not be required to register as a sex offender or undergo sex offender treatment. Id. Doe returned to prison in February 2012 due to halfway house program failure and was released again later that month. See Compl. ¶ 38. No sex offender conditions were imposed. See id. ¶ 39.
In August 2012, Doe went to his regularly scheduled meeting with his Community Supervision Officer ("CSO") and learned that he had been reassigned to CSOSA's Sex Offender Unit. Id. ¶ 40. On August 20, Doe's CSO and Paul Brennan, a Supervisor CSO in the Sex Offender Unit, submitted a request for modification of Doe's supervised release conditions to the Parole Commission. See Compl., Ex. 5 [ECF 5-1]. CSOSA asked that Doe's conditions be modified to include a "Special Sex Offender Aftercare Condition, " which would have required Doe to acknowledge his need for treatment and participate in a mental health program "with special emphasis on long-term sex offender testing and treatment." Id. Doe learned of the request to modify his conditions several weeks later. See Compl. ¶ 43. In response, on September 19, 2012, his counsel sent the Parole Commission a written objection to the proposed modification. See id. ¶ 44. Doe's CSO and Brennan then submitted a second request for modification to the Parole Commission, asking that Doe be subject only to a "Special Sex Offender Assessment." See Compl., Ex. 11 [ECF 5-2]. The Parole Commission granted this request, and on October 17, 2012, issued a Notice of Action informing Doe that the following had been ordered: "Sex Offender Aftercare [Assessment] – You shall undergo an evaluation to determine the need for sex-offense treatment therapy." Compl., Ex. 1 [ECF 2-1]. The Notice said that the decision was not appealable. Id. It did not give reasons for the decision.
The primary basis for imposing the special condition was a juvenile adjudication that took place in 2003, when Doe was eleven years old. See Compl., Exs. 5 and 11 (CSOSA requests); id., Ex. 13 [ECF 5-3] (memorandum of Parole Commission case analyst). Doe had pled "involved" to second degree sexual abuse of his five-year-old god-sister. See Compl. ¶ 33; id., Ex. 13. Also noted, by both CSOSA and the Parole Commission case analyst who recommended imposition of the special condition, were two other incidents that allegedly occurred around the time of Doe's juvenile adjudication. One involved Doe's presence among a group of boys at school that surrounded a girl being raped; the other involved Doe's two-year-old female cousin. See, e.g., Compl., Ex. 11, at 2-3. Neither incident resulted in an arrest or a conviction. See id. Based on "the serious nature of [Doe's] past sexual behavior, " it was recommended that the Parole Commission impose the sex offender assessment condition "in the interest of public safety." See Compl., Ex. 13.
After his juvenile adjudication, Doe was placed on probation for nine months and underwent a court-ordered psychological evaluation. See Compl., Ex. 11, at 2. The examiner, a psychology intern, reported that Doe "[did] not seem to fit the typical definition of a 'sex offender, '" that his acts did not appear to have been done in a predatory manner, and that he did not seem "sexually deviant." Compl., Ex. 4 [ECF 5] 7. Rather, the examiner noted, Doe would be classified as a "Naive Experimenter" in literature on juvenile sex offenders. Id. Since Doe's 2003 juvenile adjudication, there have been no reported instances of any sexual misconduct or sexually deviant behavior on his part. Doe is not required to register as a sex offender, and would not be required to do so under the special condition.
In November 2012, Doe brought this action challenging the imposition of the sex offender assessment condition and sought a preliminary injunction. At that time, funding had been authorized for sixteen fifty-minute individual assessment sessions, one ninety-minute group assessment session, two polygraphs (an "Offense Specific Polygraph" and a "Sexual History Polygraph"), and an assessment report. See Compl., Ex. 2 [ECF 2-2]. Defendants agreed to postpone Doe's initial assessment session pending the resolution of Doe's motion for a preliminary injunction and any dispositive motion filed by defendants. In January 2013, defendants filed a motion to dismiss in part and for summary judgment. The Court held a motions hearing on June 21, 2013. The parties' motions are now ripe for resolution.
Defendants move to dismiss Doe's due process claims under Federal Rule of Civil Procedure 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "If, on a [Rule 12(b)(6) motion], matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d). In resolving defendants' motion as it relates to all of Doe's claims, including his due process claims, the Court will rely on matters outside the pleadings. Hence, defendants' motion will be treated as one for summary judgment.
Summary judgment is appropriate when the pleadings and the evidence demonstrate 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 party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, " which it believes demonstrate the absence of a genuine dispute of material fact. Fed.R.Civ.P. 56(c)(1); see also Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the Court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. Moreover, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). Summary judgment, then, is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
In this action, Doe asserts three claims for relief: a statutory claim, a procedural due process claim, and a substantive due process claim. Before turning to each of these claims, the Court will address a matter of vigorous dispute between the parties: how to properly characterize the "assessment" ordered by the Parole Commission.
Defendants have submitted three declarations from Paul Brennan, on which they rely in offering their characterization of the assessment. Defendants stress that the assessment is "only an evaluation as a preliminary step" and that the Parole Commission has neither "classified" Doe as a sex offender nor required him to undergo sex offender "treatment." See Defs.' MSJ 20, 23. According to Brennan: "A sex offender assessment is distinctly different from sex offender treatment." Defs.' Reply [ECF 32], Attach. 1, Supp'l Decl. of Paul Brennan [ECF 32-1] ("Supp'l Brennan Decl.") ¶ 6. He explains that an assessment involves up to sixteen individual sessions with a therapist at the Center for Clinical and Forensic Services ("CCFS"), whose purpose it is to identify risk factors and determine if there is a need for sex offender treatment. Id. ¶¶ 7, 13-14, 28. He further explains that the group assessment session listed on the funding authorization form is actually "an orientation given to newly assigned offenders"; a therapist gives the attendees an overview of the assessment process and "[n]o intimate information is discussed." See Defs.' MSJ, Attach. 1, Decl. of Paul Brennan [ECF 19-1] ("Brennan Decl.") ¶ 11. Brennan states that polygraphs are used in the assessment phase but that no incident- or offense-specific polygraph will be administered if the person being assessed does not deny the occurrence of his or her past offense. Supp'l Brennan Decl. ¶ 15. Regarding disclosure, Brennan states that Doe's juvenile adjudication is confidential and will not be disclosed to his "collateral contacts, " such as family, friends, and significant others. See id. ¶¶ 27, 37; see also Brennan Decl. ¶ 18 (stating that CSOSA is "bound by confidentiality requirements regarding juvenile information and would not be permitted to disclose protected information without consent"). He also notes that CSOSA does not require its staff to tell a supervisee's collateral contacts that he or she is assigned to the Sex Offender Unit, and that the door to the Sex Offender Unit is innocuously labeled "Special Supervision Office." Supp'l Brennan Decl. ¶¶ 29, 32.
Doe argues that the term "assessment" is misleading. See Pl.'s Mot. for Prelim. Inj. [ECF 3] ("Pl.'s PI Mot.") 4. He contends that if the sex offender assessment condition is enforced he will be subjected to mental health "treatment" of "the most intrusive sort." Id. Doe stresses that the central component of CSOSA's evaluation process is a "psychosexual assessment" – a series of detailed questions about a person's sexual history, thoughts, and practices. See id.; see also Compl. ¶¶ 25-26; Compl., Ex. 3, Excerpt of CSOSA Policy Manual [ECF 2-3] ("CSOSA Manual") 10-11. A sexual history polygraph covering Doe's answers to these questions would follow the psychosexual assessment, and, should it be determined that Doe was "deceptive" during the polygraph, he could be found in violation of his supervised release conditions. See CSOSA Manual 33-35. Defendants do not deny that, if Doe is evaluated, the psychosexual assessment and sexual history polygraph described by Doe will be administered. They respond, however, that an in-depth assessment of a person's sexual history and thoughts is the only way to determine that person's risk of committing a sex offense, and that the psychosexual assessment, polygraph included, is still just an assessment and does not rise to the level of treatment. See 6/21/13 Tr. of Mots. Hr'g [ECF 37] 40-42, 54.
Doe additionally asserts that despite defendants' assertions to the contrary, his "status" as a sex offender will be publicized pursuant to CSOSA policy, even though his juvenile records are confidential by law. See Pl.'s Opp'n & Reply 8; see also D.C. Code § 16-2331(b). Doe relies in large part on the chapter of CSOSA's Policy Manual on supervision in the Sex Offender Unit, which contains some policies that apply only to registered sex offenders but others that appear to apply to anyone being supervised in the Sex Offender Unit. The manual requires, for example, that CSOs "notify all persons with whom the offender resides about the offender's supervision status and conviction for any sexual offenses/for all registered sex offenders"; "establish contact with other members of the offender's residence"; "have communication with all identified collateral contacts"; and "regularly communicate with all valid collateral contacts to assess the offender's compliance with the conditions of release, verify pertinent information, gather intelligence and assess risk to community safety in accordance with the assigned supervision level (i.e., family, therapists, employers, etc.)." See Compl. ¶ 31 (citing CSOSA Manual 4, 7). Pointing to an incident that occurred last Halloween, Doe asserts that his supervision in the Sex Offender Unit has already resulted in the disclosure of his status as a sex offender. On October 31, 2012, a police officer and two CSOSA officers came to Doe's grandmother's house and told Doe, in front of his grandmother, that he could not go outside that night because he was a registered sex offender (which he is not). Id. ¶ 54. Apparently, this incident happened as part of a CSOSA "initiative" applicable to all supervisees in the Sex Offender Unit. See id.
With the parties' competing characterizations of the sex offender assessment condition in mind, the Court now ...