Milazzo v. Conant

          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 ...