Johnson v. Garofalo

• Decision Date: 11 March 2020
• Docket Number: Case No.: 2:16-cv-01889-GMN-DJA
• Parties: LAUSTEVEION JOHNSON, Plaintiff, v. GAROFALO, et al., Defendants.
• Court: U.S. District Court — District of Nevada

LAUSTEVEION JOHNSON, Plaintiff, v. GAROFALO, et al., Defendants.

Case No.: 2:16-cv-01889-GMN-DJA

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

March 11, 2020

ORDER

Pending before the Court is the Partial Motion for Summary Judgment, (ECF No. 104), filed by pro se Plaintiff Lausteveion Johnson ("Plaintiff").¹ Defendants Connie Bisbee, Board of Parole Commissioner, Darla Foley, Michael Keeler, Lucille Monterde (collectively, "Parole Board Defendants") filed a Response, (ECF No. 113). Defendants Catherine Cortez Masto, James Cox, James Dzurenda, Micaela Garofalo, Adam Laxalt, Offender Management Division, Office of the Attorney General, Brian Sandoval, Howard Skolnik, Brian Williams, and Gregory Yates (collectively, "NDOC Defendants"), filed a Joinder, (ECF No. 116), to the Response. Plaintiff did not file a reply.

Also pending before the Court is Parole Board Defendants' Countermotion for Summary Judgment, (ECF No. 114). NDOC Defendants, filed a Joinder, (ECF No. 117). Plaintiff filed a Response, (ECF No. 124), to the Motion for Summary Judgment. Parole Board Defendants filed a Reply, (ECF No. 127), and NDOC Defendants filed a Joinder, (ECF No. 129), to the Reply.

Also pending before the Court is Plaintiff's Motion for Oral Arguments on Dispositive Motion, (ECF No. 130). Defendants filed non-oppositions, (ECF Nos. 131, 132). Plaintiff filed a Reply, (ECF No. 133).

Also pending before the Court is the Motion for Summary Judgment, (ECF Nos. 135), filed by NDOC Defendants.² Parole Board Defendants filed a Joinder, (ECF No. 143). Plaintiff filed a Response, (ECF No. 146), and NDOC Defendants filed a Reply, (ECF No. 149).

Also pending before the Court are Plaintiff's Partial Motions to Strike Defendant's Motion for Summary Judgment, (ECF Nos. 144, 148). NDOC Defendants filed Responses, (ECF Nos. 147, 151). Plaintiff did not file a reply.

Also pending before the Court are Plaintiff's Motions for Status Check, (ECF Nos. 150, 181).

I. BACKGROUND

Plaintiff is a prisoner in the custody of the Nevada Department of Corrections (NDOC) and currently housed at Southern Desert Correctional Center. (Pl.'s Notice of Change of Address, ECF No. 180); (see also NDOC Defs.' Mot. Summ. J. 2:3-4 ("NDOC MSJ"), ECF No. 135).

In 2004, Plaintiff was convicted of sexual assault pursuant to Nevada Revised Statutes ("NRS") 200.364 and 200.366, and sentenced to life with the possibility of parole after ten years. (First Am. Compl. ("FAC") at 9, ECF No. 11). The sentencing court additionally issued Plaintiff a consecutive sentence of eight to twenty years for attempted sexual assault with use of a deadly weapon in violation of NRS 193.330 and 193.165. (Id.); (Pl.'s Mot. Partial Summ. J.("Pl.'s MSJ") at 3, ECF No. 104). Plaintiff was nineteen years old when he was charged, and his victim was sixteen-years-old. (FAC at 9).

Plaintiff's first parole hearing occurred on February 20, 2013. (2013 Parole Bd. Order and Risk Assessment, Ex. D to Pl.'s MSJ, ECF No. 104). The Parole Board denied Plaintiff parole, stating the following reasons for denial: repetitive criminal conduct, nature of the criminal record is increasingly more serious, and impact to victim and/or community. (See id.). The Order initially noted that Plaintiff's victim was 13 years old at the time of the offense, but was corrected to indicate that the victim was 16 years old. (Oct. 10, 2013 Parole Commissioners Board Letter, Ex. I to Pl.'s MSJ, ECF No. 104); (Corrected 2013 Parole Risk Assessment, Ex. E to Pl.'s MSJ, ECF No. 104). However, the decision of the Parole Board denying Plaintiff parole remained unchanged. (Id.).

Plaintiff's second parole hearing occurred on March 16, 2016. (2016 Parole Order and Risk Assessment, Ex. F to Pl.'s MSJ, ECF No. 104). The Parole Board denied Plaintiff parole, stating the following reasons for denial: prior conviction for a sexual offense (which was crossed out), prior conviction for a violent offense (robbery), repetitive criminal conduct, nature of the criminal record is increasingly more serious, impact to victim and/or community, and crime was targeted against a child. (See id.). The Board further noted that the "[v]ictim was sexually assaulted by the inmate on two separate occasions, once a knife point, threatened to kill her, feared for life. Inmate broke into victim's residence" (Id.). The Order also noted that the victim was under 14 years old at the time of the offense. (Id.).

Plaintiff appealed requesting a new parole hearing. The Parole Board issued a corrected order removing the prior conviction for a sexual offense, removing the "nature of the criminal record is increasingly more serious" aggravating factor, and changing the victim's age to 16. (Corrected 2016 Parole Order, Ex. 7 to Mot. Dismiss, ECF No. 47-7). However, the decisionof the Parole Board to deny Plaintiff parole remained unchanged and a new hearing was denied. (See id.).

On October 24, 2016, Plaintiff filed his Amended Complaint seeking monetary damages and injunctive relief. (FAC at 32, 37). On June 10, 2017, the Court issued its Screening Order, (ECF No. 16), indicating the following claims survived: (1) a retaliation claim against Defendants Brian Williams, Micaela Garofalo, Yates, the Office of the Attorney General, Skolnik, Laxalt, the Offender Management Division, and Sandoval; (2) an equal protection claim against Defendants Garofalo, Williams, Monterde, Dzurenda, Board of Parole Commissioners, Yates, Foley, Keeler, and Las Vegas Metropolitan Police Department (LVMPD)³; (3) a due process claim against Defendants Keeler, Garofalo, Williams, Yates, the Attorney General's Office, Masto, Dzurenda, the Board of Parole Commissioners, Bisbee, Sandoval, Skolnik, Foley, Cox, Laxalt, the Offender Management Division, LVMPD, Keeler, and Monterde; and (4) an ex post facto claim against Defendants Garofalo, Williams, Monterde, Dzurenda, the Board of Parole Commissioners, Yates, Foley, Keeler, Sandoval, Masto, and Bisbee. (Screening Order 9:6-10:28, ECF No. 16). On August 22, 2018, the Court dismissed Plaintiff's claims against Parole Board Defendants with prejudice. (Order 17:7-9, ECF No. 88).

Plaintiff's third parole hearing occurred on February 20, 2019. (2019 Parole Order and Risk Assessment, Ex. 1 to Parole Board Defs.' MSJ, ECF No. 114-1). The Parole Board granted Plaintiff parole to his consecutive sentence. (Id.). Plaintiff's "effective parole date" was May 1, 2019. (Id.).

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/// On February 25, 2019, the Court granted in part and denied in part Plaintiff's Motion to Alter or Amend Order, (ECF No. 93).⁴ In the Order, the Court indicated that

Plaintiff's due process claim is based, in part, on allegations that the Parole Board Defendants applied improper procedures and inapplicable aggravating factors during Plaintiff's parole board hearings. . . . These allegations align with the Nevada Supreme Court's holding in Anselmo v. Bisbee, and thus may serve as a viable basis for a due process claim due to alleged application of inapplicable aggravating factors during consideration of parole.⁵

(Order 5:17-25, ECF No. 103). The Court also reaffirmed its earlier ruling that Parole Board Defendants are "absolutely immune from Plaintiff's due process claim to the extent that Plaintiff seeks monetary damages." (Id. 6:7-10). However, the Court found that "absolute immunity does not extend to injunctive relief against the Parole Board Defendants." (Id.) (citing Thornton v. Brown, 757 F.3d 834, 840 (9th Cir. 2013); Tripp v. Bisbee, 670 F. App'x 494, 495 (9th Cir. 2016)).

Plaintiff, Parole Board Defendants, and NDOC Defendants subsequently filed summary judgment motions, (ECF Nos. 104, 114, 135).⁶ Additionally, Plaintiff filed several motions seeking various forms of relief, (ECF Nos. 121, 130, 144, 148, 150, 181). This Order now follows.

II. LEGAL STANDARD

The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

In determining summary judgment, a court applies a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment...