                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 14 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL PINA,                                    No. 08-35328

              Plaintiff - Appellant,             D.C. No. 2:06-cv-01547-BHS

  v.
                                                 MEMORANDUM *
HAROLD CLARKE, Secretary, DOC;
THEODORE LEWIS, CCO, DOC; CLY
F. EVANS, RAPM, DOC; DAVID
GIKLEY, RAPM; PATRICIA TURNER,
CCO; GARY RINK, CCO; TROY
DUXBURY, CCO; RAYMOND
BROOKS, CCO; DAVID V. MCNEILL;
ROBERT B. LITTLEJOHN; RICK L.
MINNICH; MARTY GUNDERSON;
ROBERT SCHILLING; CHARLES L.
MALONE, DOC Risk Mitigation
Manager,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                        Argued and Submitted May 4, 2011
                               Seattle, Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

      Michael Piña appeals the district court’s dismissal of his 42 U.S.C. § 1983

action alleging violations of his constitutional rights by Department of Corrections

(DoC) and Seattle Police Department officials in implementing Washington’s sex

offender registration and community custody programs. We affirm.

      Piña argues that he was entitled to due process before his sex offender risk

level status was elevated because he had a constitutionally protected liberty interest

at stake. The district court properly dismissed the DoC defendants as to this claim

because Piña failed to allege personal involvement by any DoC defendants with

respect to elevation of his risk status. See Jones v. Williams, 297 F.3d 930, 934

(9th Cir. 2002) (to state a claim under 42 U.S.C. § 1983, plaintiff must allege

“personal participation in the alleged rights deprivation”). Any statements by DoC

officials regarding Piña’s risk level separate from the official elevation did not rise

to the level of constitutional violations. See Paul v. Davis, 424 U.S. 693, 698

(1976) (Even if state officials’ acts were to qualify as defamation under state law,

such “action is [not] . . . transmuted into one for deprivation by the State of rights

secured under the Fourteenth Amendment.”).

      The district court properly found that Detective Robert Schilling was entitled

to qualified immunity. We have not previously addressed whether an individual


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has a liberty interest at stake in risk level classification under Washington law. We

have, however, held that individuals do not have a privacy right at stake in the

statute’s notification provisions. See Russell v. Gregoire, 124 F.3d 1079, 1094

(9th Cir. 1997) (“The collection and dissemination of information under the

Washington Law does not violate any protected privacy interest, and does not

amount to deprivation of liberty or property.”). The Washington Supreme Court

has interpreted Russell to hold generally that the Washington sex offender

registration statute does not implicate a protected interest, although that case did

not address the elevation claim made here. See In Re Meyer, 16 P.3d 563, 618

(Wash. 2001). In line with these cases, we are unpersuaded that Piña was entitled

to a hearing prior to the elevation of his risk level status. In any event, a

reasonable official in Schilling’s position would lack notice of any protected

interest. Schilling is therefore entitled to qualified immunity. See Pearson v.

Callahan, 555 U.S. 223, 129 S. Ct. 808, 815 (2009) (An official is entitled to

qualified immunity if the “conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” (internal

quotation marks and citation omitted)).

      Piña argues that DoC officials violated his Fourth, Fifth, and substantive due

process rights during implementation of the polygraph testing required by Piña’s


                                            3
community custody conditions. Piña failed to allege an unlawful search or a

Fourth Amendment violation before the district court, and that claim is therefore

waived. See White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010) (per curium)

(“Generally, arguments not raised before the district court are waived on appeal.”).

      To the extent Piña argues that his exercise of Fifth Amendment rights was in

fact used against him, he limits that argument to the moments at which he refused

to sign the polygraph waiver forms, expressly declining to argue that his

incarceration for failure to abide by community custody conditions constituted the

basis of his Fifth Amendment claim. As noted in his reply brief, “Piña merely

takes issue with the way the process was actually applied, challenging . . . the DoC

Appellees’ effort to get him to preemptorily waive his Fifth Amendment rights.”

Piña has thus failed to allege that his exercise of Fifth Amendment rights was used

against him as required to sustain a 42 U.S.C. § 1983 action. See Chavez v.

Martinez, 538 U.S. 760, 769 (2003) (“[M]ere coercion does not violate the text of

the Self-Incrimination Clause absent use of the compelled statements in a criminal

case against the witness.”); see also Image Technical Serv., Inc. v. Eastman Kodak

Co., 136 F.3d 1354, 1356 (9th Cir. 1998) (matters “not specifically and distinctly

argued in appellant’s opening brief” are ordinarily waived).




                                          4
      Because Piña’s substantive due process claim relies on the alleged Fourth

and Fifth Amendment violations, the claim is properly brought under those

amendments and not the Fourteenth Amendment. See Patel v. Penman, 103 F.3d

868, 874 (9th Cir. 1996), (“[W]here a particular amendment provides an explicit

textual source of constitutional protection against a particular sort of government

behavior, that Amendment, not the more generalized notion of substantive due

process, must be the guide for analyzing a plaintiff’s claims.” (citations, internal

quotations, and brackets omitted)), overruled in part on other grounds as

recognized by Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2007).

      Piña also argues that his risk level elevation was based on facts not found by

a jury and thus violated the Sixth Amendment. We have previously held that “the

registration provisions of [Washington’s sex offender statute] do not amount to

punishment subject to the Ex Post Facto clause,” and in doing so we applied the

factors relevant for determining whether an act constitutes punishment under the

Sixth Amendment. See Russell, 124 F.3d at 1089. Accordingly, Piña’s Sixth

Amendment claim is foreclosed by Russell.

      AFFIRMED.




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