United States District Court, D. Alaska
ADAM M. MILAZZO, Plaintiff,
v.
JOHN CONANT, et al., Defendants.
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
Sharon
L. Gleason UNITED STATES DISTRICT JUDGE.
Before
the Court are two motions: Plaintiff's Motion for Partial
Summary Judgment at Docket 44 and Defendants' Motion for
Summary Judgment at Docket 46. Both motions have been fully
briefed.[1] Oral argument was held on March 13, 2017.
INTRODUCTION
Plaintiff
Adam Milazzo, a self-represented litigant, initiated this
action against Defendants John Conant, Jimmie Chynoweth,
Michelle Garner, Elaine Bialka, and the State of Alaska,
Department of Corrections (collectively
“Defendants”) for allegedly violating Mr.
Milazzo's federal and state constitutional rights by
treating Mr. Milazzo as a sex offender for limited purposes.
BACKGROUND
On
March 25, 2011, Adam Milazzo pleaded guilty in state court to
one count of Coercion for events that occurred on October 30,
2002.[2] The State had originally charged Mr.
Milazzo with Sexual Assault in the First Degree, and the
police report that provided the basis of Mr. Milazzo's
criminal charges stated that Mr. Milazzo had forced a victim
identified as “H.A.” to engage in sexual acts
with him.[3] However, pursuant to a plea agreement, Mr.
Milazzo pleaded guilty only to Coercion. At the change of
plea hearing, Mr. Milazzo's lawyer stated on record that
“there [was] no furlough impact implicated in [the]
agreement and there [was] no treatment requirement placed in
[the] agreement.”[4]The prosecutor voiced no disagreement or
other response to that statement. The Alaska Superior Court
then imposed the negotiated two-year sentence, and Mr.
Milazzo was incarcerated at Goose Creek Correctional Center
(GCCC) in Wasilla, Alaska.
While
incarcerated, on July 3, 2014, Mr. Milazzo submitted a
“Request for Interview” in which he stated he
sought to apply for a recent job opening at the Point
Mackenzie Correctional Farm (“the Farm”), a
minimum security facility.[5] Defendant Chynoweth responded to the
request by stating that Mr. Milazzo was “not eligible
for employment at the Farm.” When Mr. Milazzo inquired
why he was ineligible, Defendant Chynoweth explained
“you are not eligible based on the sexual assault
charges in '08. This is per agreement between the
Department of Corrections and the Families and Community who
live next to and near Point Mackenzie
Farm.”[6] Mr. Milazzo filed a grievance about the
response, asserting it constituted a violation of his federal
and state constitutional rights as well as a violation of
DOC's Policies and Procedures, but DOC personnel
determined the action was not a grievable
issue.[7]
In
September 2014, Mr. Milazzo filed a civil complaint in Alaska
Superior Court seeking money damages and injunctive relief
against Defendant Chynoweth and Defendant Conant based on
alleged violations of Mr. Milazzo's constitutional rights
by treating him as a sex offender for purposes of Farm
employment without providing him specific procedural
protections.[8]
On
February 1, 2015, Mr. Milazzo submitted another
“Request for Interview, ” asking to be moved up
the priority list for substance abuse treatment so that he
could be placed on furlough.[9] Defendant Garner responded that
Mr. Milazzo was not eligible for furlough. In a conversation
with Defendant Bialka, Mr. Milazzo learned that he was
ineligible because the police reports for his underlying
criminal offense indicated that his Coercion conviction was
“sexual in nature.”[10]
Mr.
Milazzo then amended his civil complaint and added Defendants
Garner, Bialka, and DOC, as well as additional claims,
including allegations that treating him as a sex offender for
furlough eligibility purposes violated his rights to due
process and equal protection.[11] On November 24, 2015,
Defendants filed a Notice of Removal, as a result of which
the state case was removed to federal court.[12]
Meanwhile,
on November 9, 2015, Mr. Milazzo filed a “Motion for
Enforcement of Amended Judgment and Commitment” in the
state criminal case. In the motion, he argued that in light
of the statement his attorney made about furlough during the
change of plea hearing, the subsequent imposition of a
sentence in conformity with the plea agreement constituted a
“controlling oral pronouncement” that
“prohibits Mr. Milazzo's conviction for coercion
from being used as a basis to deny Mr. Milazzo
furlough.”[13] On May 20, 2016, the sentencing judge
denied the motion and held that nothing in the Superior Court
judgment “prohibits . . . the Department of Corrections
from making a risk assessment based upon their review of the
police reports” and any other information they may have
for purposed of placement and furlough.[14]
On
August 27, 2016, Mr. Milazzo was released from incarceration.
He is now on parole until January 11, 2021 and has filed
documentation indicating that DOC currently requires him to
obtain a sex offender evaluation and participate in sex
offender treatment if ordered as conditions of his
parole.[15]
DISCUSSION
Mr.
Milazzo's Amended Complaint sets out the following ten
claims against Defendants:
(1) Defendant Chynoweth violated Mr. Milazzo's right to
due process under the 14th Amendment of the U.S. Constitution
by classifying and treating Mr. Milazzo as a sex offender
when he denied Mr. Milazzo's request for employment at
the Farm.
(2) Defendants Bialka and Garner violated Mr. Milazzo's
right to due process under the 14th Amendment of the U.S.
Constitution “by punishing Mr. Milazzo for a crime he
did not commit” when they classified and treated Mr.
Milazzo as a sex offender for purposes of furlough
eligibility.
(3) Defendants Bialka and Garner violated Mr. Milazzo's
right to due process under the 14th Amendment of the U.S.
Constitution by “deeming Mr. Milazzo furlough
ineligible without fair and impartial consideration.”
(4) Defendant Chynoweth violated Mr. Milazzo's right to
equal protection under the 14th Amendment of the U.S.
Constitution by “allowing prisoners similarly situated
to Mr. Milazzo to work at the Farm.”
(5) Defendants Bialka and Garner conspired together to
violate Mr. Milazzo's right to equal protection under the
14th Amendment of U.S. Constitution “by deeming
prisoners similarly situated to Mr. Milazzo eligible for
furlough, and Mr. Milazzo furlough ineligible.”
(6) Defendant Conant violated Mr. Milazzo's right to due
process and to rehabilitation under the Alaska Constitution
“by failing to ensure that Mr. Milazzo was afforded a
fair and impartial consideration for placement at the
Farm.”
(7) The State of Alaska, Department of Corrections (DOC),
violated Mr. Milazzo's right to due process and
rehabilitation under the Alaska Constitution “by
failing to afford Mr. Milazzo a fair and impartial
consideration for placement at the . . . Farm.”
(8) The State of Alaska, DOC, violated Mr. Milazzo's
right to due process and rehabilitation under the Alaska
Constitution “by failing to provide Mr. Milazzo a fair
and impartial consideration for furlough placement.”
(9) The State of Alaska, DOC, violated Mr. Milazzo's
right to due process and rehabilitation under the Alaska
Constitution “by not granting Mr. Milazzo the minimum
six months furlough mandated by DOC policy.”
(10) The State of Alaska, DOC, violated Mr. Milazzo's
right to equal protection under the Alaska Constitution
“by failing to treat Mr. Milazzo similar to those
situated similar to Mr. Milazzo” for purposes of Farm
placement and furlough eligibility.[16]
I.
Jurisdiction
The
Court has jurisdiction over Claims 1 through 5 pursuant to 28
U.S.C. § 1331 because each arises under the U.S.
Constitution. The Court has supplemental jurisdiction over
Claims 6 through 10 pursuant to 28 U.S.C. § 1367 because
each of those claims arises from the same transactions or
occurrences as Claims 1 through 5.
II.
Summary Judgment Standard
Federal
Rule of Civil Procedure 56(a) directs a court to “grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” The burden of showing the
absence of a genuine dispute of material fact initially lies
with the moving party.[17] If the moving party meets this
burden, the non-moving party must present specific factual
evidence demonstrating the existence of a genuine issue of
fact.[18] When considering a motion for summary
judgment, a court must accept as true all evidence presented
by the non-moving party, and draw “all justifiable
inferences” in the non-moving party's
favor.[19] To reach the level of a genuine dispute,
the evidence must be such “that a reasonable jury could
return a verdict for the non-moving
party.”[20] If the evidence provided by the
non-moving party is “merely colorable” or
“not significantly probative, ” summary judgment
is appropriate.[21]
Before
the Court are Mr. Milazzo's motion for partial summary
judgment and Defendants' motion for summary judgment.
Both motions cover substantially similar claims and present
related arguments. To prevail on his motion, Mr. Milazzo must
show that there is no genuine dispute of material fact as to
each element of each claim and that he is entitled to
judgment as a matter of law based on those undisputed facts.
Because Mr. Milazzo bears the burden of proof at trial,
Defendants may prevail if they show that “there is an
absence of evidence to support [Mr. Milazzo's]
case.”[22] If Defendants meet that burden, the
burden then shifts to Mr. Milazzo “to designate
specific facts demonstrating the existence of genuine issues
for trial.”[23] For that reason, the Court will first
address Defendants' motion; for if Defendants can show
that Mr. Milazzo lacks evidence to prove any of his claims
and that they are entitled to judgment as a matter of law,
then Mr. Milazzo's motion necessarily fails.
III.
Claims for Injunctive Relief
Defendants
argue that Mr. Milazzo's Claims 6 through 10 seeking
injunctive relief pursuant to state law against Defendant
State of Alaska, DOC, and Defendant Conant are moot because
Mr. Milazzo has been released to probation.[24] Mr. Milazzo
seeks an injunction “ordering that any policy, practice
or directive which denies access to jobs at [the Farm] or
‘outside' the Goose Creek fence to those who have
been charged, but not convicted of, a sex offense” be
amended so that only inmates who have actually been convicted
of a sex offense are denied such jobs.[25] He also seeks
an injunction ordering Defendants to afford him “fair
and impartial consideration” for placement at the Farm
and furlough.[26] And he seeks an order directing
Defendants “to purge all of their records, documents
and computer files of any reference to Mr. Milazzo as a sex
offender or as being in need of sex offender treatment and to
rely no further on any sex offender charge, police report
and/or presentence investigation report as they relate to Mr.
Milazzo having committed a sexual
offense.”[27]
“An
inmate's release from prison while his claims are pending
generally will moot any claims for injunctive relief relating
to the prison's policies unless the suit has been
certified as a class action.”[28] Here, Mr. Milazzo is no
longer in custody and this case was not certified as a class
action.[29] But Mr. Milazzo maintains that despite
being released from GCCC, he is still entitled to injunctive
relief because “[DOC] is still labeling Mr. Milazzo a
sex offender and is requiring Mr. Milazzo to participate in
sex offender treatment as a requisite to retain his liberty
on parole.”[30] Mr. Milazzo also asserts that if he does
not comply with what he maintains is an unconstitutional
requirement of his parole, he will be incarcerated and
subject to the same policies and practices he was subjected
to when he filed this complaint.
To the
extent that Mr. Milazzo argues that his claims are
“capable of repetition, yet evading review, ” the
Court is unpersuaded. Ineligibility for employment and
furlough are not the types of claims that will evade
review.[31]
As for
Mr. Milazzo's argument that he is still being treated as
a sex offender because he is required to submit to sex
offender treatment as a condition of his parole, Defendants
respond, among other arguments, that the claim was not
properly pleaded in Mr. Milazzo's Amended Complaint. Mr.
Milazzo's proposed order attached to his motion for
partial summary judgment acknowledges that “[t]he
active Complaint in this case only alleged claims regarding
Defendants' actions in denying Mr. Milazzo eligibility
for consideration for furlough and placement ...