NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN E. BETTYS, No. 18-35285

Plaintiff-Appellant, D.C. No. 3:16-cv-05076-RJB

v.

MEMORANDUM*

KEVIN QUIGLEY; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Washington civil detainee John E. Bettys appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging claims arising

from his pretrial detention at Washington’s Special Commitment Center (“SCC”).

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Mitchell v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Washington, 818 F.3d 436, 441 (9th Cir. 2016). We affirm.

The district court properly granted summary judgment on Bettys’s mental

health treatment and conditions of confinement claims because defendants

demonstrated that any differences between what Bettys was provided during his

pretrial detention and what was provided to criminal inmates at Washington State

Department of Corrections facilities were justified by legitimate, non-punitive

interests, and Bettys failed to raise a genuine dispute of material fact as to whether

any conditions he experienced amounted to punishment or were excessive in

relation to legitimate government interests. See Bell v. Wolfish, 441 U.S. 520, 537

(1979) (some losses of freedom of movement and choice are inherent discomforts

of confinement, and not every disability imposed during detention “amounts to

‘punishment’ in the constitutional sense”); Jones v. Blanas, 393 F.3d 918, 932, 935

(9th Cir. 2004) (a rebuttable presumption of punitive treatment arises when a

detainee awaiting civil commitment proceedings is detained in “conditions

identical to, similar to, or more restrictive than, those in which his criminal

counterparts are held”).

To the extent Bettys challenges the mental health treatment he received after

2 18-35285 his civil commitment, the district court properly granted summary judgment

because Bettys failed to raise a genuine dispute of material fact as to whether

defendants substantially departed from accepted professional judgment. See

Youngberg v. Romeo, 457 U.S. 307, 321-23 (1982) (imposing liability where a

decision is “such a substantial departure from accepted professional judgment,

practice, or standards as to demonstrate that the person responsible actually did not

base the decision on such a judgment”); Mitchell, 818 F.3d at 443-44 (at summary

judgment, a civil detainee must present evidence sufficient to rebut the Youngberg

professional judgment standard).

The district court properly dismissed Bettys’s double jeopardy claim because

his civil detention under Washington law is not unconstitutionally punitive “as

applied” to him. See Seling v. Young, 531 U.S. 250, 263 (2001) (rejecting a double

jeopardy challenge to implementation of civil confinement of persons charged with

sex offenses).

We do not consider Bettys’s due process claims concerning vendor access

privileges and facility policies because Bettys voluntary dismissed these claims.

See Fed. R. Civ. P. 41(a)(2); Seidman v. City of Beverly Hills, 785 F.2d 1447, 1448

(9th Cir. 1986) (“A plaintiff may not appeal a voluntary dismissal because it is not

3 18-35285 an involuntary adverse judgment against him”).

AFFIRMED.

4 18-35285