Quintero v. Aranan

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JOHN QUINTERO, Case No. 3:16-cv-00673-MMD-CBC 7 Plaintiff, ORDER v. 8 CONNIE BISBEE, et al., 9 Defendants. 10 11 I. INTRODUCTION 12 Pro se Plaintiff John Quintero, currently incarcerated and in the custody of the 13 Nevada Department of Corrections (“NDOC”), alleges violations of his constitutional rights 14 under 42 U.S.C. § 1983 against correctional facility and parole board employees and 15 officials generally arising from a parole board’s decision to deny him parole. Before the 16 Court are two Reports and Recommendations (“R&Rs” or “Recommendations”) of United 17 States Magistrate Judge Carla B. Carry (ECF Nos. 114 (“First R&R”), 116 (“Second R&R)). 18 Plaintiff filed an objection to Judge Carry’s Recommendations.1 (ECF No. 117.) As further 19 explained below, the Court will overrule Plaintiff’s objection because the Court agrees with 20 Judge Carry’s analysis of the underlying motions, and will fully adopt the R&Rs, resolving 21 this case in Defendants’ favor. 22 II. BACKGROUND 23 The Court incorporates by reference Judge Carry’s recitation of the factual 24 background of this case (see, e.g., ECF No. 116 at 1-2), and does not recite it here.2 As 25 26 1The Court also reviewed Defendants’ responses. (ECF Nos. 118, 121.) 27 2In both R&Rs Judge Carry refers to ECF No. 21 when she cites to Plaintiff’s 28 operative complaint, but the operative complaint is ECF No. 56. ECF No. 21 is Plaintiff’s 1 relevant to Plaintiff’s objection, Judge Carry issued two R&Rs primarily directed at two 2 underlying motions, which also denied, mostly as moot, a number of other pending 3 motions, in light of her decision to recommend granting those two primary underlying 4 motions. The First R&R focuses on a motion to dismiss filed by a group of Defendants that 5 refer to themselves as the “Parole Board and DPS Defendants,” consisting of Shawn 6 Arruti, Connie Bisbee, Darla Foley, Ed Gray, Natalie Wood, and James Wright. (ECF No. 7 62 at 1; see also ECF No. 114.) The Second R&R focuses on a motion for summary 8 judgment filed by a group of Defendants that refer to themselves as the “NDOC 9 Defendants,” consisting of Adam Laxalt, Joe Prieto, David Tristan, Dwayne Deal, and 10 James Dzurenda. (ECF No. 77 at 1; see also ECF No. 116.) 11 A. Plaintiff’s Claims 12 Following screening and motion practice on Plaintiff’s motion to amend his 13 complaint, the Court allowed six of Plaintiff’s claims to proceed. (ECF Nos. 4, 42, 55, 56 14 (the “Complaint”).) The Court briefly describes those claims here. 15 Three of the six claims are due process claims. Count I and Count V both challenge 16 Plaintiff’s inability to contest the factual content of a presentence investigation report 17 (“PSI”) prepared before sentencing in Plaintiff’s underlying criminal case during the parole 18 process, which the parole board partially relied on in denying parole to Plaintiff. (ECF Nos. 19 4 at 4-5, 42 at 4-5, 55 at 8.) Count I is a procedural due process challenge, and Count V 20 is a substantive due process challenge. (ECF Nos. 42 at 4-5, 6-9, 55 at 6.) Count VI 21 asserts that Defendants Bisbee and Gray violated Plaintiff’s Fourteenth Amendment due 22 process rights by using an “increasingly more serious aggravator [meaning a reason for 23 denying parole that Plaintiff’s crimes became increasingly more serious over time] 24 resulting in the denial of Plaintiff’s parole.” (ECF No. 42 at 9 (internal quotation marks 25 omitted).) 26 27 complaint in detail, the Court construes Judge Carry’s references to ECF No. 21 as references to ECF No. 56. 28 1 One of Plaintiff’s claims is a state law claim. In Count II, Plaintiff alleges that 2 Defendant Parole Commissioner Bisbee created an administrative regulation, NAC § 3 213.516, which exceeded the scope of her rulemaking authority under NRS § 209.341. 4 (ECF No. 56 at 10.) NAC § 213.516 provides that the parole board will begin making its 5 determination as to whether someone is entitled to parole using a matrix that considers 6 both the severity level assigned to the crime pursuant to NAC § 213.512 and the 7 incarcerated person’s likelihood of re-offense determined pursuant to NAC § 213.514. See 8 NAC § 213.516. 9 Plaintiff’s two other claims are First Amendment challenges to the factors NDOC 10 considers when making parole decisions. Count III alleges a First Amendment 11 establishment clause violation—that the administrative regulations governing NDOC’s 12 parole decisions effectively prioritize secular programming over religious programming, 13 and thus discourage incarcerated people from exercising their religion, because 14 participation in programming that does not include religious services counts as a positive 15 factor weighing in favor of an incarcerated person being released on parole. (ECF No. 42 16 at 5.) Count IV alleges a First Amendment free exercise clause violation focused on the 17 NDOC’s Sexual Treatment of Offenders in Prison (“STOP”) program. (Id. at 6; see also 18 ECF No. 4 at 8-9.) Plaintiff alleges that it is more likely he would have been granted parole 19 if he had completed this program. (ECF No. 56 at 15-16.) However, Plaintiff refused to 20 participate in it because he believes it is repugnant to his Catholic faith. (Id.) Plaintiff 21 essentially explains that the STOP program requires participants to discuss their past 22 sexual abuse of others in a group therapy session, whereas he understands confession 23 to be a private exchange between one person and a priest. (Id.) Plaintiff therefore argues 24 this program burdens his free exercise of Catholicism because he would have to 25 participate in group therapy sessions to complete the program and receive the favorable 26 consideration such completion would entail upon consideration for parole.3 (Id.) 27 3As to both of these claims, Plaintiff expresses frustration that NDOC prioritizes 28 1 B. Judge Carry’s R&Rs 2 As mentioned, Judge Carry’s First R&R and Second R&R are very similar. They 3 are structured in mostly the same way, and rely on overlapping legal reasoning to reach 4 the ultimate recommendation that the Court should dismiss all of Plaintiff’s claims or 5 otherwise resolve this case by granting summary judgment in Defendants’ favor.4 The 6 Court briefly summarizes the reasoning of Judge Carry’s R&Rs below. 7 First, Judge Carry found that all of Plaintiff’s claims are barred to the extent he 8 seeks money damages resulting from his confinement by the doctrine expressed in Heck 9 v. Humphrey, 512 U.S. 477 (1994), and its progeny (the “Heck bar”). (ECF Nos. 114 at 3- 10 5, 116 at 4-6.) She reached this conclusion because she found Plaintiff would obtain 11 immediate or earlier release from confinement were he to succeed in obtaining the relief 12 he seeks in this case—damages along with an injunction requiring a new parole hearing, 13 and the imposition of new parole procedures on NDOC intended to make it more likely for 14 Plaintiff to be released on parole. (ECF Nos. 114 at 4-5, 116 at 4-6.) Second, Judge Carry 15 generally found that Plaintiff cannot state a claim for a due process violation because he 16 cannot, as a matter of law, establish a protected liberty interest in parole under either 17 federal or Nevada law. (ECF Nos. 114 at 5-6, 116 at 6-7.) 18 As to Plaintiff’s First Amendment claims, Judge Carry found that the challenged 19 practices did not constitute substantial burdens on the exercise of Plaintiff’s religion 20 sufficient to state a claim. (ECF Nos. 114 at 7-8,116 at 7-10.) In addition, as to Plaintiff’s 21 free exercise clause claim, Judge Carry found that the STOP program did not substantially 22 philosophical argument that science is just another type of religion—equally unbelievable 23 to those, like him, who do not believe. (ECF No. 117 at 22-24.) 24 4Two sections of the First R&R are not mirrored in the Second R&R, because they both relate only to the Parole Board and DPS Defendants. Specifically, Judge Carry 25 recommends dismissal of Plaintiff’s claim that Defendant Bisbee exceeded her rulemaking authority in implementing NAC § 213.516 because Bisbee was explicitly given authority to 26 implement NAC § 213.516 in NRS § 213.10855—not the inapplicable NRS § 209.341 upon which Plaintiff’s claim is based. (ECF No. 114 at 6-7.) In addition, Judge Carry 27 recommends dismissal of all Parole Board and DPS Defendants on the alternative basis they are entitled to quasi-judicial immunity because Plaintiff’s allegations against them 28 1 burden the exercise of Plaintiff’s religion because it is voluntary, nonreligious, and he was 2 not denied parole because he declined to participate in it. (ECF No. 116 at 8.) Further, 3 Judge Carry made the alternative finding that the STOP program was constitutionally 4 permissible even if it substantially burdened Plaintiff’s religious exercise because it had a 5 rational connection to a legitimate penological interest—preventing recidivism in sex 6 offenders. (Id. at 8-9.) 7 Finally, because there is no right to parole in Nevada, and therefore there could be 8 no violation of Plaintiff’s constitutional rights even if Plaintiff could establish all of his 9 alleged violations, Judge Carry found that all Defendants are entitled to qualified immunity. 10 (ECF Nos. 114 at 9-10, 116 at 10-11.) This finding provides an alternative basis for Judge 11 Carry’s recommendation that the Parole Board and DPS Defendants’ motion to dismiss 12 be granted, along with the NDOC Defendants’ motion for summary judgment. 13 III. LEGAL STANDARDS 14 A. Review of the Magistrate Judge’s Recommendations 15 This Court “may accept, reject, or modify, in whole or in part, the findings or 16 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 17 timely objects to a magistrate judge’s report and recommendation, then the Court is 18 required to “make a de novo determination of those portions of the [report and 19 recommendation] to which objection is made.” Id. Because of Plaintiff’s objection to the 20 R&Rs, the Court has undertaken a de novo review of both R&Rs, including the underlying 21 briefs relating to the two key pending motions. 22 B. 12(b)(6) Motion to Dismiss Standard 23 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 24 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a 25 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 26 R. Civ. P. 8(a)(2); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While 27 Rule 8 does not require detailed factual allegations, it demands more than “labels and 28 conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. 1 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). “Factual allegations 2 must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to 3 survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a 4 claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal citation omitted). 5 In Iqbal, the Supreme Court clarified the two-step approach district courts are to 6 apply when considering motions to dismiss. First, a district court must accept as true all 7 well-pled factual allegations in the complaint; however, legal conclusions are not entitled 8 to the assumption of truth. See id. at 678-79. Mere recitals of the elements of a cause of 9 action, supported only by conclusory statements, do not suffice. See id. at 678. Second, 10 a district court must consider whether the factual allegations in the complaint allege a 11 plausible claim for relief. See id. at 679. A claim is facially plausible when the plaintiff’s 12 complaint alleges facts that allow a court to draw a reasonable inference that the 13 defendant is liable for the alleged misconduct. See id. at 678. Where the complaint does 14 not permit the court to infer more than the mere possibility of misconduct, the complaint 15 has “alleged—but it has not show[n]—that the pleader is entitled to relief.” Id. at 679 16 (internal quotation marks omitted). When the claims in a complaint have not crossed the 17 line from conceivable to plausible, the complaint must be dismissed. See Twombly, 550 18 U.S. at 570. 19 C. Summary Judgment Standard 20 “The purpose of summary judgment is to avoid unnecessary trials when there is no 21 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 22 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 23 the discovery and disclosure materials on file, and any affidavits “show there is no genuine 24 issue as to any material fact and that the movant is entitled to judgment as a matter of 25 law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there is 26 a sufficient evidentiary basis on which a reasonable fact-finder could find for the 27 nonmoving party and a dispute is “material” if it could affect the outcome of the suit under 28 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where 1 reasonable minds could differ on the material facts at issue, however, summary judgment 2 is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a 3 genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ 4 differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th 5 Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In 6 evaluating a summary judgment motion, a court views all facts and draws all inferences in 7 the light most favorable to the nonmoving party. See Kaiser Cement Corp. v. Fishbach & 8 Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 9 The moving party bears the burden of showing that there are no genuine issues of 10 material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 11 the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting 12 the motion to “set forth specific facts showing that there is a genuine issue for trial.” 13 Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings 14 but must produce specific evidence, through affidavits or admissible discovery material, to 15 show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 16 1991), and “must do more than simply show that there is some metaphysical doubt as to 17 the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting 18 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 19 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” 20 Anderson, 477 U.S. at 252. 21 IV. DISCUSSION 22 Following a de novo review of the R&Rs, relevant briefs, and other records in this 23 case, the Court finds good cause to accept and adopt Judge Carry’s R&Rs in full. The 24 Court addresses below Plaintiff’s objection after first addressing the preliminary matter of 25 Plaintiff’s unauthorized reply briefs. 26 A. Plaintiff’s Reply Briefs 27 Plaintiff has filed reply briefs (ECF Nos. 122, 123) where none are permitted without 28 the Court’s leave. See LR IB 3-2(a) (“Replies [in support of objections] will be allowed only 1 with leave of court.”). Because Plaintiff filed replies in support of his objection in violation 2 of LR IB 3-2(a), and the Court moreover finds these replies to be unnecessary given the 3 opportunities Plaintiff has had to brief these issues, the Court will strike these reply briefs. 4 (ECF Nos. 122, 123.) The Court advises Plaintiff to refrain from filing reply briefs where 5 none are permitted by the Court’s local rules. 6 B. Plaintiff’s Objection and the R&Rs 7 The majority of Plaintiff’s arguments in his objection (ECF No. 117) are too frivolous 8 to merit discussion here.5 But the Court will briefly address Plaintiff’s contention that Judge 9 Carry improperly converted the Parole Board and DPS Defendants’ motion to dismiss into 10 a motion for summary judgment without first giving him the requisite notice. (Id. at 3-4.) 11 The Court is unpersuaded Judge Carry impermissibly made such a conversion. The First 12 R&R cites to Plaintiff’s Complaint, appears to take the facts in it as true, and rests its 13 recommendations on conclusions of law. (ECF No. 114.) Thus, it appears to the Court that 14 Judge Carry treated the motion to dismiss under Rule 12(b)(6)’s standard and did not 15 convert it into a motion for summary judgment. The Court also agrees with the Parole 16 Board and DPS Defendants that Plaintiff is not prejudiced by dismissal here because 17 discovery would not help him—his claims fail as a matter of law. (ECF No. 118 at 3.) 18 In general, the Court is persuaded to adopt Judge Carry’s R&Rs because it agrees 19 with her key decisions therein. First, Plaintiff’s claims are Heck-barred to the extent he 20 seeks damages or the remedy he seeks is based on seeking an earlier release from 21 confinement in challenging the parole board’s decisions.6 (ECF Nos. 114 at 4-5, 116 at 5- 22 5For example, Plaintiff objects to the fact that Judge Carry’s captions for both R&Rs 23 are “Report and Recommendation of U.S. Magistrate Judge.” (ECF No. 117 at 1-2.) He argues it would be clearer if the captions stated which motions each R&R was addressing. 24 (Id.) But Plaintiff cites to no federal or local rule, or case law, to support his objection— because there is no such rule or law. There is nothing improper about the captions of the 25 R&Rs. 26 6In Heck, the Supreme Court held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose 27 unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by 28 1 6.) Second, Plaintiff has no liberty interest in parole. (ECF Nos. 114 at 5-6, 116 at 6-7.) 2 Third, none of the parole-related practices Plaintiff challenges in his First Amendment 3 claims sufficiently burden his religious rights to violate his constitutional rights. (ECF Nos. 4 114 at 7-8, 116 at 7-10.) Fourth, and also because Plaintiff has no liberty interest in parole, 5 Defendants are entitled to qualified immunity here because Plaintiff cannot establish a 6 constitutional violation. (ECF Nos. 114 at 9-10, 116 at 10-11.) 7 In sum, the Court overrules Plaintiff’s objection to both the First R&R and the 8 Second R&R. The Court will therefore grant Defendants’ dispositive motions, and deny 9 the other pending motions, mostly as moot, and resolve this case in Defendants’ favor. 10 V. CONCLUSION 11 The Court notes that the parties made several arguments and cited to several cases 12 not discussed above. The Court has reviewed these arguments and cases and determines 13 that they do not warrant discussion as they do not affect the outcome of the issues before 14 the Court. 15 It is therefore ordered that the Reports and Recommendations of Magistrate Judge 16 Carla B. Carry (ECF Nos. 114, 116) are accepted and adopted in full. 17 It is further ordered that that Defendants’ motion to dismiss (ECF No. 62) is granted 18 as to all claims against Defendants Shawn Arruti, Connie Bisbee, Darla Foley, Ed Gray, 19 Natalie Wood, and James Wright. 20 It is further ordered that Defendants’ motion for summary judgment (ECF No. 77) 21 is granted as to all claims against Defendants Adam Laxalt, Joe Prieto, David Tristan, 22 Dwayne Deal, and James Dzurenda. 23 It is further ordered that Defendants Laxalt and Prieto’s motions to extend time 24 (ECF Nos. 89, 90) are granted nunc pro tunc. 25 determination, or called into question by a federal court’s issuance of a writ of habeas 26 corpus[.]” 512 U.S. at 486-87 (footnote omitted). However, “if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any 27 outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Id. at 487 (emphasis in original and 28 1 It is further ordered that Plaintiff’s motion to strike (ECF No. 81), and Plaintiff’s 2 motion for leave to file supplemental evidence (ECF No. 98) are denied. 3 It is further ordered that Plaintiff’s motion for a temporary restraining order (ECF 4 No. 47), Plaintiff’s motion for preliminary injunction (ECF No. 48), Plaintiff’s motion 5 requesting submission (ECF No. 58), Defendants’ motion to stay discovery (ECF No. 64), 6 Plaintiff’s motion to strike (ECF No. 66), Plaintiff’s motion seeking a protective order (ECF 7 No. 74), Plaintiff’s motion for partial summary judgment (ECF No. 84), and Plaintiff’s 8 motion to extend time (ECF No. 86) are all denied as moot. 9 The Clerk of Court is directed to strike Plaintiff’s reply briefs (ECF Nos. 122, 123) 10 filed in response to Defendants’ responses to his objection to Judge Carry’s R&Rs. 11 The Clerk of Court is further directed to enter judgment in accordance with this 12 order, and in Defendants’ favor, and close this case. 13 DATED THIS 10th day of September 2019. 14 15 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28