Opinion
No. CV-07-962-HU.
September 10, 2008
Kevin E. Lucey, Portland, Oregon, Attorney for Plaintiff.
Hardy Myers, ATTORNEY GENERAL, Dirk L. Pierson, SENIOR ASSISTANT ATTORNEY GENERAL, Department of Justice, Salem, Oregon, Attorneys for Defendants State of Oregon and Amy Wehr.
Agnes Sowle, MULTNOMAH COUNTY ATTORNEY, David N. Blankfeld, ASSISTANT COUNTY ATTORNEY, Portland, Oregon, Attorneys for Defendants Multnomah County and Karen Ross.
OPINION ORDER
Plaintiff Robert Burgess brings this action against the State of Oregon, Multnomah County, Oregon Department of Corrections (ODOC) employee Amy Wehr, and Multnomah County Sheriff's Office (MCSO) employee Karen Ross. Plaintiff contends that he was erroneously denied credit for time served while on work release in Multnomah County.
The State defendants and the County defendants separately move for summary judgment. All parties have consented to entry of final judgment by a Magistrate Judge in accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). I grant the motions.
BACKGROUND
Plaintiff was convicted in Multnomah County Circuit Court on October 10, 1994, for one count of Rape 1. He was sentenced to 228 months probation and 360 custody units at a work release center. On May 28, 2003, plaintiff's probation was revoked and he was sentenced to a fifty-month determinate term of incarceration. He was delivered to the custody of the ODOC on July 9, 2003, to begin service of this sentence.
The MCSO originally certified that it held plaintiff in its custody for four separate time periods, all related to this conviction. The time periods as calculated by the MCSO on July 9, 2003, in its Statement of Imprisonment, were: (1) May 8, 2003, to July 9, 2003; (2) February 26, 1998, to March 25, 1998; (3) October 11, 1994, to July 21, 1995; and (4) February 4, 1994, to February 14, 1994, for a total credit of 390 days. The ODOC, after receiving an amended statement from the MCSO correcting mathematical errors, calculated the sentence in accordance with Oregon Revised Statute § (O.R.S.) 137.370, and credited plaintiff with 385 days.
Defendants contend that during a file review on November 12, 2005, the ODOC discovered that for part of the time calculated by the MCSO in July 2003, plaintiff was in a work-release center. Defendants assert that on November 16, 2005, the County confirmed that the time period of October 11, 1994, through July 21, 1995, consisted of "non jail units."
On November 16, 2005, the County issued an Amended Statement of Imprisonment, showing three periods of physical custody which were the same periods (1), (2), and (4) as listed above, and deleting period (3) above from October 11, 1994, through July 21, 1995. The total credit was now noted as 101 days. Defendant Ross signed the Amended Statement of Imprisonment. After receiving it, defendant Wehr adjusted plaintiff's time served credits to 101 days.
STANDARDS
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
"If the moving party meets its initial burden of showing 'the absence of a material and triable issue of fact,' 'the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'"Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Id.; In re Agricultural Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990);California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).
DISCUSSION
In his Second Amended Complaint, plaintiff brings the following claims:(1) negligence against the County (First Claim for Relief — Count One);
(2) negligence against the State (First Claim for Relief — Count Two);
(3) false imprisonment against the State (Second Claim for Relief — Count One);
(4) false imprisonment against the County (Second Claim for Relief — Count Two);
(5) a 42 U.S.C. § 1983 claim against Ross alleging an equal protection violation for failing to include plaintiff's time in work release but including work release time of other inmates (Third Claim for Relief — Count One);
(6) a section 1983 claim against Wehr for the same alleged equal protection violation (Third Claim for Relief — Count Two);
(7) a section 1983 equal protection claim against the County for maintaining a policy or practice of crediting some inmates for credit for time served while in work release, while at the same time denying that credit for other inmates (Third Claim for Relief — Count Three);
(8) a section 1983 claim against the County for an alleged deprivation of liberty based on the County's alleged policy or practice of not crediting an inmate on a Statement of Imprisonment, for time served in a county work release center (Third Claim for Relief — Count Four);
(9) a section 1983 claim against Ross for an alleged deprivation of liberty caused when she removed the time spent on work release from plaintiff's Statement of Imprisonment (Third claim for Relief — Count Five); and
(10) a section 1983 claim against Wehr for a deprivation of liberty for failure to credit plaintiff for time served while on work release (Third Claim for Relief — Count Six).
The claims rise and fall on the interpretation of Oregon Revised Statute § (O.R.S.) 137.370, governing the computation of the term of imprisonment in a state correctional institution. The statute provides, in pertinent part:
(1) When a person is sentenced to imprisonment in the custody of the Department of Corrections, the term of confinement therein commences from the day the person is delivered to the custody of an officer of the Department of Corrections for the purpose of serving the sentence executed, regardless of whether the sentence is to be served in a state or federal institution.
(2) Except as provided in subsections (3) and (4) of this section, when a person is sentenced to imprisonment in the custody of the Department of Corrections, for the purpose of computing the amount of sentence served the term of confinement includes only:
(a) The time that the person is confined by any authority after the arrest for the crime for which sentence is imposed; and
(b) The time that the person is authorized by the Department of Corrections to spend outside a confinement facility, in a program conducted by or for the Department of Corrections.
In Curtiss v. Department of Corrections, 212 Or. App. 42, 157 P.3d 279 (2007), the plaintiff argued that Oregon Administrative Rule (OAR) 291-100-0080(3)(g), which provides that time-served credit would not apply to time spent on house arrest, conflicted with O.R.S. 137.370. Given the nature of the plaintiff's argument, the Oregon Court of Appeals was presented with the opportunity to construe the term "confined" in O.R.S. 137.370(2)(a).
OAR 291-100-0080(3), the rule at issue in Curtiss, states:
(3) Pursuant to ORS 137.320(3) and 137.370:
(a) An inmate will receive time served credit only for the actual number of days confined after arrest in a county jail or other non-Department of Corrections facility (as authorized by statute) as a result of the charge or of the conduct which gave rise to the charge for which the sentence is later imposed. Credit will be given only for the presentence time the inmate was confined in the county jail or other non-Department of Corrections facility (as authorized by statute). The days must be certified by the county sheriff or other qualified certifying authority, or if the time served certification is erroneous (for example days certified when the inmate was not actually confined in that county's jail), as can be verified.
* * *
(g) An inmate will not receive time served credit for time not confined in the county jail, such as time spent on house arrest, electronic monitoring, or in a county work release program.
OAR 291-100-0080(3).
Notably, the parties in the instant case agree that this rule does not apply in this case because it was not in effect when plaintiff committed the underlying crime. They further agree that the issue here concerns the interpretation of O.R.S. 137.370, not the interpretation of an administrative rule.
The state argued that the word "confined" was used in a narrow sense, meaning "imprisoned." The plaintiff argued that a person need not be imprisoned to be confined, that is, that a person who agreed to limit his or her location may, under a broad reading of the definition of "confined," be "confined," "albeit self-confined." Id. at 46, 157 P.3d at 281. The plaintiff also argued that Oregon courts had consistently held that when incarcerated persons are lawfully outside of their correctional facilities, they are still "confined" there for purposes of the escape statutes. Id. at 47, 157 P.3d at 281.
The court held in favor of the state, "primarily based on the statutes that provide context for ORS 137.370(2)(a)[.]" Id. The court concluded that "confined," as used in O.R.S. 137.370(2)(a) "equates with 'imprisoned,' and does not encompass a situation in which a person voluntarily agrees to restrict his or her location." Id. The court also rejected the plaintiff's reading of earlier Oregon cases and explained that Oregon cases have held that "a person who is on "home detention" pretrial releasecannot, in fact, be convicted of escape for failing to comply with the conditions of the release." Id.
The court began its discussion by discussing the "statutory context" for the "confined by any authority" provision of O.R.S. 137.370(2)(a). The court first cited O.R.S. 137.370(1) which, it described, as a general matter indicates that when a person is sentenced to imprisonment in the ODOC's custody, the "term of confinement" begins when the ODOC takes custody. Id. The court then noted that O.R.S. 137.370(2) instructs the ODOC on how to compute the "term of confinement." Id. Additionally, paragraph (2)(b) includes, within the "term of confinement," time that a person is authorized by the ODOC "to spend outside a confinement facility, in a program conducted by or for" the ODOC. Id. Thus, the court explained, paragraph (2)(b) "pertains to calculation of the 'term of confinement' while a person is in DOC's custody."Id.
In contrast, the court noted, paragraph (2)(a) "applies more broadly to time that the person is confined 'by any authority' after the arrest for the crime for which the sentence is imposed." Id. Because, the court stated, "paragraph (2)(a) clearly contemplates DOC calculating a 'term of confinement' to include time that a person is 'confined' before being delivered to DOC's custody for service of the sentence," the court turned to O.R.S. 137.320 as it concerns the delivery of convicted defendants to the custody of the ODOC for service of their sentences. Id. at 47-48, 157 P.3d at 282.
The court then discussed that O.R.S. 137.320(1) and (2) "expressly direct sheriffs to report to DOC the number of days a person has been 'imprisoned' prior to delivery to DOC's custody."Id. at 48, 157 P.3d at 282. Subsection (3), the court noted, "instructs DOC, upon receipt of that information, to compute the defendant's sentence in accordance with ORS 137.370." Id. at 48-49, 157 P.3d at 282. The court then stated: "Those two statutes, in conjunction [referring to O.R.S. 137.320 and O.R.S. 137.370] indicate that DOC is to use information provided by the sheriff about 'the number of days the defendant was imprisoned, ORS 137.320(1), (2) (emphasis added), to establish the 'term ofconfinement," ORS 137.370(2) (emphasis added)." Id. at 49, 157 P.3d at 282.
Finally, the court disposed of the plaintiff's "escape" argument. The plaintiff argued that persons outside of correctional facilities can be prosecuted for escape crimes and thus, persons outside of correctional facilities on conditional release should be deemed to be "confined" for purposes of O.R.S. 137.370(2). Id. at 49, 157 P.3d at 283.
The court first noted that the argument was "inapt" because the escape statutes do not use the term "confined." Id. at 50, 157 P.3d at 283. Rather, the crime of "escape" involves the "'unlawful departure of a person from custody or a correctional facility.'" Id. (quoting O.R.S. 162.135(5), emphasis added inCurtiss). Further, the court noted, "'escape' expressly 'does not include failure to comply with provisions of a conditional release' agreement." Id. (quoting O.R.S. 162.135(5), emphasis added in Curtiss). Thus, the court explained
although petitioner is correct that persons outside of correctional facilities can, in some circumstances, be prosecuted for escape crimes, he is incorrect that persons on pretrial conditional release pursuant to ORS 135.230 to 135.290 can be successfully prosecuted for escape crimes by failing to abide by the conditions of their release. . . . Petitioner's contextual resort to the law of escape is unavailing.Id. (citation and footnote omitted).
In the end, the Curtiss court concluded that the term "'confined,' in O.R.S. 137.370(2)(a) means incarcerated and does not encompass pretrial conditional release, including home detention." Id. Thus, it upheld Oregon Administrative Rule (OAR) 291-100-0080(3) which, in addressing credit for time served, specifically excludes "credit for time not confined in the county jail, such as time spent on house arrest[.]" Id. at 50, 157 P.3d at 283.
Defendants argue that under O.R.S. 137.370(2)(a) and Curtiss, plaintiff was not "confined" when he participated in his work release program and thus, it is appropriate that he not be given credit for that time. Defendants suggest that under Curtiss, the essence of confinement is physical restraint to a location. They argue that time spent in a county work release center does not qualify as credit for time served because it is not incarceration or imprisonment.
In his Second Amended Complaint, plaintiff's own allegations demonstrate that he was not confined to the work release center twenty-four hours per day, seven days per week. Second Am. Compl. at ¶ 6 (plaintiff worked for approximately eight hours per day, six days per week, and was confined during the remaining 120 hours of each week).
Moreover, in his response memorandum, plaintiff concedes that "[g]ranted, an inmate on work release is not confined when he is working — at least not in the same sense that one is confined in a jail or in a restitution center." Pltf's Resp. at p. 6. He continues by noting that "during work hours . . . [h]e is restricted to just going to and from work[,] . . . in the end,work release is arguably a hybrid: it is part confinement and part less so." Id. (emphasis added).
In a "Statement Under Penalty of Perjury," plaintiff makes clear that when he was not at work, he was not housed in the County jail, but in a separate "Restitution Center" in downtown Portland. Pltf's Stmt. at ¶ 3. He describes the center as run by the MCSO, staffed by two uniformed guards, twenty-four hours each day. Id. He does not say that they were armed. There was a mandatory 10 pm bedtime. The windows were alarmed to alert the guards if opened more than six inches. Id. The exit doors were locked, except for the front, which may have been locked at night. Id. The exit doors were alarmed and there were video cameras around the outside of the building. Id.
There were classes or groups in the evenings, such as Narcotics Anonymous, Alcoholics Anonymous, Anger Management and others. Id. There were counselors and inmates had to obtain a counselor's permission to accept a particular job if not already employed when entering the work release program. Id.
If not working, one was not free to leave the Restitution Center. Id. at ¶ 4. Plaintiff had to sign in and sign out to go to work. Id. He was pat searched upon returning from work each day. Id. He was told that if he failed to timely return from work, he would be charged with the crime of escape. Id.
If not employed outside the Restitution Center, an inmate was required to work at jobs inside the Center. Id. at ¶ 5. It was a male only facility. Id.
Given the construction of the statute in Curtiss, I agree with defendants that the time plaintiff spent in the Restitution Center was not "imprisonment" for the purposes of O.R.S. 137.370, and thus, defendants appropriately refused to credit plaintiff for the days he spent there. While certainly there are more hallmarks of imprisonment in the work release Restitution Center than the plaintiff in Curtiss faced in home detention, other notable hallmarks of imprisonment are absent in the work release setting, most notably the fact that imprisonment is not for a twenty-four hour period. Additionally, a work release defendant has the ability to maintain, or gain, employment at a paid job in the regular community, and there is no corrections or sheriff department supervision during work hours, supplying the "freedom," so to speak, to fail to return from work each day.
None of plaintiff's arguments is persuasive. First, none of the four cases cited by plaintiff offers the kind of in-depth analysis of the controlling statute as found in Curtiss. In Plumb v. Prinslow, 847 F. Supp. 1509 (D. Or. 1994), the plaintiff brought an action alleging that county and state officials had delayed in crediting his sentence for eight-three days served in the county jail, resulting in his being wrongly imprisoned after the date on which he should have been released from custody.
In a footnote, Judge Panner explained that during litigation, the defendants maintained that the certification was erroneous and that the plaintiff should have been credited with only forty-eight days, on the basis that thirty-five days spent at a work center should not be credited as time served. Id. at 1515 n. 2. Judge Panner concluded that the plaintiff had a liberty interest in credits for time served based on at least the forty-eight days that the plaintiff was at the county jail. Id. at 1518. But, Judge Panner left unresolved the dispute about the actual number of days the plaintiff should be credited because it was irrelevant to the legal issue on summary judgment which was whether there was a liberty interest. Id. at 1515 n. 2. Later in the opinion, Judge Panner concluded that the state defendants were entitled to qualified immunity. Id. at 1522. There is no later opinion resolving the claims as to the county defendants. Thus, there was no determination in Prinslow that time spent on work release is to be credited by the ODOC as credit for previous confinement under O.R.S. 137.370.
State v. Johnston, 176 Or. App. 418, 31 P.3d 1101 (2001) is not applicable because the central issue in that case was whether costs of confinement could be assessed by the sentencing court as a general condition of probation. The trial judge had ordered the defendant, who was convicted of criminal nonsupport and felony failure to appear, to probation and further ordered that he serve sixty days in the county jail as a condition of probation, with credit for time served. Finally, the trial court ordered, as a special condition of probation, that the defendant pay a per diem of $39.75 for each day served in the county jail. The defendant appealed, arguing that the trial court lacked authority to order him to pay the described amount as a special condition of probation.
The appellate court focused on the authority provided by O.R.S. 169.151, and O.R.S. 137.540(1) and (2), none of which are at issue in the instant case. Id. at 420-21, 31 P.3d at 1102. The court determined that the fee assessed by the trial court was initially permitted by O.R.S. 137.540(1)(a). Id. at 1104, 31 P.3d at 423. It then cited other statutes in support of its conclusion. Id. As part of its discussion, the court noted that O.R.S. 137.520 expressly authorized a court to order one subcategory of offender (offenders sentenced to probation, ordered to serve time in the county jail as a condition of probation, and placed on work release), to pay at least one category of cost (board) incurred by a county jail on behalf of the offender. Id. at 424-25, 31 P.3d at 1104-05. In this discussion, the court noted that the work release statute, O.R.S. 137.520, generally provided that an offender placed on work release is confined in the jail during the hours in which the offender is not employed. Id. at 424, 31 P.3d at 1104.
In contrast, plaintiff in the instant case was not confined in jail during his non-work hours while on work release but rather, in the less restrictive Restitution Center. More notably,Johnston never interpreted O.R.S. 137.370(2)(a) regarding whether time spent on work release should be credited toward a defendant's sentence. Thus, the case provides no authority for plaintiff's conclusion.
Next, plaintiff relies on two 1988 cases regarding escapes made by a work release defendant. In State v. Ratliff, 89 Or. App. 483, 749 P.2d 616 (1988), an inmate was considered to have been constructively confined at the Multnomah County Correctional Facility during the time when he had been released from actual physical custody there and told to report to a work release center, to which he never reported. Thus, under the escape statute criminalizing escape from "custody" or from a "correctional facility," he was considered to have been confined or incarcerated in a correctional facility and his actions constituted an unlawful departure from a correctional facility within the meaning of the escape statute.
In State v. Scott, 94 Or. App. 250, 764 P.2d 976, the court cited Ratliff and held that the defendant who fled while being transported to a work release facility, was under the county's constructive custody and thus, could be charged with escape from a correctional facility.
The problem with plaintiff's reliance on these cases is that neither case construed O.R.S. 137.370(2)(a). Rather, both were concerned with the escape statutes, and whether there had been an escape from "custody" or from a "correctional facility." By concluding that the defendant in each case was, in the particular circumstances described, in the constructive custody of the correctional facility, the issue was resolved in favor of the state in each case.
As the Curtiss court noted, Ratliff is "no longer good law" in light of a 1989 amendment to the escape statutes. Curtiss, 212 Or. App. 42, 50 n. 1, 157 P.2d at 283 n. 1. Additionally, as theCurtiss court explained, the "escape statutes do not use the term 'confined.'" Id. Thus, the "escape" argument in Curtiss was "inapt." Id. It is equally inapt here.
Second, plaintiff argues that O.R.S. 137.520 mandates that while on work release, plaintiff was to be housed at the county jail when not actually at work and thus, in determining whether plaintiff is to receive credit for time while on work release, the court should consider him housed at the county jail while not working instead of at the Restitution Center. As such, plaintiff continues, he was confined under O.R.S. 137.370(2)(a).
There are two problems with this argument. The statute provides that a defendant placed on work release "shall, during the hours in which not so . . . employed, be confined in the county jailunless the court by order otherwise directs or unless the sheriff otherwise directs in the absence of a contrary order by the court.." O.R.S. 137.520(4) (emphasis added). The emphasized language makes clear that the statute does not require all work release defendants to be housed at the county jail when not working. Thus, it would be inconsistent with the statute to ignore that plaintiff was housed at the Restitution Center in his off-work hours and consider him housed at the jail. The other problem with this argument is that even if plaintiff were at the jail during non-work hours, he still would have experienced a "hybrid" situation because he was not incarcerated twenty-four hours per day.
Third, plaintiff contends that a now superseded Oregon Administrative Rule (OAR), OAR 291-100-013, which he contends was effective at the time he committed his underlying crime, provides for credit for time served in a county jail or other confinement facility "on a day-for-day basis." This, plaintiff argues, supports his contention that credit be given for time spent in work release. I disagree. Even if the rule were applicable, it is easily understood as recognizing that when credit is determined to apply, it is applied on a day-for-day basis. The reference to "day-for-day" adds no meaning to the initial determination of whether credit is appropriately applied in the first instance.
Accordingly, I reject plaintiff's argument that credit given for time "confined," as that word is used in O.R.S. 137.370, and as having been interpreted in Curtiss to mean imprisoned, encompasses time spent in the work release program at the Restitution Center. With this conclusion, I need not further discuss plaintiff's negligence and false imprisonment tort claims against the county and the state, nor any of plaintiff's section 1983 claims based on a deprivation of liberty. The county and state employees appropriately followed the law in denying credit for time served for work release and thus, were not negligent, did not falsely imprison plaintiff, and did not unconstitutionally deprive him of his liberty.
Plaintiff also brings several equal protection claims, for allegedly failing to credit his work release time while crediting the same time to the sentences of other inmates. Accepting for the purposes of these motions that plaintiff could produce evidence that defendants have credited other inmates for time spent in work release, I nonetheless dismiss these claims.
After the summary judgment motions were taken under advisement, and long after the May 1, 2008 close of discovery, plaintiff moved to reconsider the denial of an earlier motion to compel in which plaintiff information from the County regarding persons similarly situated to plaintiff. Through a request for production and interrogatories, plaintiff sought the identities of persons who had served time in work release while serving a sentence of probation which was subsequently revoked, and the person was then sent to prison. Plaintiff sought to learn how the County, and then the State, treated these persons in terms of crediting or not crediting the time spent in work release. After hearing oral argument on the motion to compel in a February 12, 2008 hearing, I denied the motion.
Plaintiff fails to articulate any recognized grounds in support of reconsideration of that decision. Generally, an intervening change in the controlling law, the availability of new evidence, or the need to correct a clear error of law or prevent manifest injustice is required. Transp. Credit Serv. Ass'n v. Systran Fin. Servs. Corp., No. CV-03-1342-MO, 2004 WL 1920799, at *1 (D. Or. Aug. 26, 2004) (citing Medford Pac. v. Danmor Constr., 2 F. Supp. 2d 1322, 1323 (D. Or. 1998)). Plaintiff raises none of these bases in support of the motion for reconsideration.
More importantly, as discussed in this Opinion, even if plaintiff had such evidence, he cannot sustain his "class of one" equal protection claim. The motion for reconsideration is denied.
As the Supreme Court recognized in Village of Willowbrook v. Olech, 528 U.S. 562 (2000), there are some limited circumstances when an equal protection claim may be sustained, even if the plaintiff has not alleged class-based discrimination but instead claims that he or she has been irrationally singled out as a "class of one." Id. at 564-65. As the Ninth Circuit explained, where "state action does not implicate a fundamental right or a suspect classification, the plaintiff can establish a 'class of one' equal protection claim by demonstrating that it 'has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'" Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004), overruled on other grounds, Action Apt. Ass'n v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1025 (9th Cir. 2007) (quoting Village of Willowbrook, 528 U.S. at 564).
Additionally, "[i]n order to claim a violation of equal protection in a class of one case, the plaintiff must establish that the [defendant] intentionally, and without rational basis, treated the plaintiff differently from others similarly situated." North Pacifica, LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). "A class of one plaintiff must show that the discriminatory treatment was intentionally directed just at him, as opposed to being an accident or a random act." Id. (internal quotation and ellipsis omitted).
Here, plaintiff makes no allegation implicating a suspect classification. In his Second Amended Complaint, he makes no assertion of a fundamental right. He proffers no evidence that any discriminatory treatment was "intentionally directed just at him" as opposed to the defendants making an occasional error, just as they did in the first Statement of Imprisonment tendered by the MCSO to the ODOC. "Selective enforcement of valid laws, without more, does not make the defendants' actions irrational[.]" Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th Cir. 1995). Accordingly, plaintiff's equal protection claims are dismissed.
CONCLUSION
Defendants' motions for summary judgment (#37, #43) are granted. Plaintiff's motion for reconsideration of the denial of the motion to compel (#66), is denied.
IT IS SO ORDERED.