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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CURTIS S. THOMPSON, )

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Plaintiff, ) Case No. C05-1600RSL-MJB

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v. )

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DETECTIVE ROBERT SHILLING, et al., ) REPORT AND RECOMMENDATION

)

Defendants. )

____________________________________)

On September 19, 2005, plaintiff submitted to this Court for filing a civil rights complaint

under 42 U.S.C. § 1983. Plaintiff appeared to allege in his complaint that his constitutional rights

were violated when he was referred to the King County Prosecutor for civil commitment

proceedings under the Sexually Violent Predator Act. He further appeared to allege that his

constitutional rights were violated when, after prevailing in his civil commitment proceedings and

being released from Department of Corrections custody, psychological evaluations from the End of

Sentence Review Board, and information regarding uncharged crimes, was sent to the Seattle

Police Department and then disclosed to the public. 

After reviewing plaintiff’s complaint, this Court, on October 25, 2005, issued an Order

directing plaintiff to show cause why this action should not be dismissed pursuant to 28 U.S.C. 

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§ 1915(e)(2)(B)(ii). The Court noted therein that two of the named defendants, Richard Werner

and Anita Paulsen, were not subject to suit under § 1983 because they were acting in their capacity

as attorneys for the defender’s association at the time they allegedly violated plaintiff’s

constitutional rights. See Polk County v. Dodson, 454 U.S. 312 (1981)(a public defender does not

act under color of state law when performing a lawyer's traditional functions as counsel to a

defendant in a criminal proceeding). 

The Court further noted in its Order to Show Cause that plaintiff’s claims against the

remaining two defendants, Governor Christine Gregoire and Detective Robert Shilling, appeared

to challenge the validity of the state statutes which permitted the state to prosecute plaintiff under

the Sexually Violent Predator Act, and to notify the public of his status as a sex offender once

plaintiff was released from custody. Plaintiff was advised that, to the extent he intended to

challenge the validity of those state statutes, his claims appeared to be foreclosed by prior court

decisions which have held various portions of the Washington Community Protection Act

constitutional. See Young v. Weston, 192 F.3d 870 (9th Cir. 1999) (stating that the United States

Supreme Court’s decision in Hendricks v. Kansas, 521 U.S. 36 (1997), forecloses the claim that

the Washington civil commitment statute, on its face, violates the ex post facto clause); Russell v.

Gregoire, 124 F.3d 1079 (holding that registration and notification provisions of the Act do not

violate the Ex Post Facto Clause, the right to privacy, or the Due Process Clause.) 

On November 21, 2005, plaintiff filed a response to the Order to Show Cause. Plaintiff

appears to indicate in his response that his intent is to challenge the notification provisions of the

Washington Community Protection Act on the grounds that those provisions violate the Ex Post

Facto and Due Process Clauses. However, as noted above, it appears that such constitutional

challenges have been foreclosed by prior decisions of the Ninth Circuit Court of Appeals. Plaintiff

makes no showing to the contrary. Accordingly, this Court recommends that plaintiff’s complaint,

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REPORT AND RECOMMENDATION

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and this action, be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). This Court

further recommends that plaintiff’s pending request for appointment of counsel be denied. A

proposed order accompanies this Report and Recommendation.

DATED this 25th day of January, 2006.

AMONICA J. BENTON

United States Magistrate Judge

Case 2:05-cv-01600-RSL Document 11 Filed 01/25/06 Page 3 of 3