Milazzo v. Conant et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ADAM M. MILAZZO,
Plaintiff,
v.
JOHN CONANT, et al.,
Defendants. 	Case No. 3:15-cv-00230-SLG
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
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
1 Docket 56 (Defs.’ Opp’n to Mot. for Partial Summ. J.); Docket 81 (Pl.’s Reply); Docket 55 (Pl.’s
Opp’n to Mot. for Summ. J.); Docket 69 (Defs.’ Reply).
2 Docket 46-1 (Anchorage Police Department Report) at 1.
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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
3 See Docket 46-1 at 2.
4 Docket 46-2 (Change of Plea Hr’g) at 2.
5 Docket 1-1 at 14; see also Docket 48 (Milazzo Aff.) at 5–6, ¶ 14.
6 Docket 1-1 (Request for Interview) at 17.
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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
7 Docket 1-1 (Prisoner Grievance) at 25–27.
8 See Docket 19-1 (Original Compl.) at 1; Docket 19-3 at 2 (Summons).
9 Docket 1-1 (Request for Interview) at 30.
10 Docket 1-1 (Milazzo Aff.) at 32; Docket 47 (Martin Decl.) at 1–2, ¶ 3.
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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
11 See Docket 1-1 (Am. Compl.).
12 See Docket 1 (Not. of Removal).
13 Docket 46-5 (Mot. for Enforcement of Am. J. and Commitment).
14 Docket 46-6 (Status Hr’g Tr.) at 5. See also Docket 46-6 at 5–6:
Mr. Milazzo: [T]he issue as to what DOC can and cannot look at in their—in their
evaluation [of whether an inmate should be treated as a sex offender] is currently
in front of the federal court [ . . . ]
Sentencing judge: [Federal court is] the proper venue for [this issue]—it’s not a
proper venue for me.
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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.”
15 Docket 55 (Pl. Opp’n) at 6 (citing Docket 48-1 (Order of Mandatory Parole) at 129); Docket 81
(Pl. Reply) at 12–13.
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(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.
16 See Docket 1-1 (Am. Compl.).
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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
17 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
19 Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
20 Id. at 248.
21 Id. at 249.
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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
22 In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).
23 Id.
24 Docket 46 (Defs.’ Mot. for Summ. J.) at 11. Mr. Milazzo’s motion for partial summary judgment
and his response to Defendants’ motion for summary judgment indicate that he may have
intended to seek injunctive relief from the alleged violation of his federal constitutional rights and
not only pursuant to the state constitution. See Docket 45 at 4–7; Docket 55 at 2–6. Such a claim
would not be viable against the State because the State is not a “person” under § 1983. 	See,
e.g., Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989). But even if Mr. Milazzo had
adequately pleaded such a federal cause of action against Defendant Conant, see Ex Parte
Young, 209 U.S. 123 (1908), it too would have become moot upon Mr. Milazzo’s release from
Goose Creek.
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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
25 Docket 1-1 (Am. Compl.) at 12, ¶ c.
26 Docket 1-1 (Am. Compl.) at 12–13, ¶¶ d, g, h, j.
27 Docket 44-1 (Pl.’s Proposed Order) at 6.
28 Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995).
29 See Fed. R. Civ. P. 23(a); Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) (“[A] litigant
appearing in propria persona has no authority to represent anyone other than himself.”).
30 Docket 55 (Pl. Opp’n) at 6 (citing Docket 48-1 at 129).
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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 at the Farm.”32 	Therefore, the Court will not
address the special conditions of parole in this case as they are not properly before the
Court.
Finally, the Court will construe Mr. Milazzo’s Complaint as seeking injunctive relief
with respect to his right to rehabilitation under the Alaska Constitution.33 	But even
construing the Complaint as such, the claim is moot because Mr. Milazzo is no longer in
31 See Wiggins v. Rushen, 760 F.2d 1009, 1011 (9th Cir. 1985) (“This case neither challenges a
court order which, by its own terms, expires in a few days nor raises questions which are mooted
by the termination of a nonjudicial activity that is of short duration.”).
32 Docket 44-1 (Proposed Order) at 2.
33 See Docket 1-1 at 12, ¶¶ c, d (requesting injunctive relief ordering that practice of treating those
charged with sex offenses as sex offenders cease for purposes of Farm employment); Docket 45
at 13 (“In light of the rehabilitative aspects of placement at the Farm, Mr. Milazzo has a right to a
fair and impartial consideration for such placement that he was denied.”).
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custody and no longer subject to DOC’s policies or practices that allegedly bar him from
participating 	in 	rehabilitative 	programs.34 	Accordingly, 	Defendants 	are 	entitled 	to
summary judgment on Mr. Milazzo’s Claims 6 through 10 that sought injunctive relief from
Defendant State of Alaska, DOC, and Defendant Conant.
IV. Claims for Damages
In addition to his claims for injunctive relief, Mr. Milazzo brings five federal claims
seeking damages against Defendants Chynoweth, Garner, and Bialka.35 	Defendants
argue that they are entitled to qualified immunity on these claims. 	Qualified immunity
shields public officials performing discretionary functions from liability for civil damages
under § 1983 so long as their conduct does not “violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”36 “A right is clearly
established for purposes of qualified immunity if, at the time the right was allegedly
violated, its contours were sufficiently clear that a reasonable official would understand
that what he is doing violates that right.”37 “[C]learly established law should not be defined
34 The Alaska Supreme Court has held that “the right to rehabilitation does not create a right to
furlough for all prisoners.” Hertz v. Macomber, 297 P.3d 150, 158 (Alaska 2013). Rather, DOC
is granted broad discretion to determine which prisoners are entitled to furlough, and such
discretion can only be overcome by a showing that the prisoner was “denied fair and impartial
consideration and that DOC was motivated to impose particular furlough release conditions for
an improper purpose.” Id. at 159. Mr. Milazzo’s denial of furlough was due to the police reports
which contain allegations of sexual misconduct, a factor DOC may properly consider when
determining whether an inmate is entitled to early release. Accordingly, even if the claim was not
moot at this time, it would fail on the merits.
35 See supra at 5–6, Claims 1–5.
36 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
37 May v. Baldwin, 109 F.3d 557, 561 (9th Cir. 1997) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)) (internal quotation marks omitted).
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at a high level of generality . . . . [It] must be particularized to the facts of the case.”38 Mr.
Milazzo bears the burden of demonstrating that his rights to procedural due process and
equal protection under the U.S. Constitution were clearly established.39
1. Federal Right to Procedural Due Process
Mr. Milazzo asserts that Defendants are not entitled to qualified immunity because
the Ninth Circuit’s decision in Neal v. Shimoda clearly established “that before inmates
could be stigmatized and labeled [as sex offenders,] the inmate was entitled to procedural
due process on par with that afforded in a disciplinary hearing and as set forth in Wolff v.
McDonnell.”40 	Mr. Milazzo asserts that Defendants had sufficient notice of this right
because Neal was decided by the Ninth Circuit nearly 20 years ago, and federal courts
since Neal have held that violations of this type violate clearly established law.41 	To
prevail on this argument, Mr. Milazzo must demonstrate that Neal presents similar
circumstances to his case, such that Defendants Chynoweth, Garner, and Bialka were
clearly on notice that their failure to provide Mr. Milazzo with a hearing violated Mr.
Milazzo’s right to due process.
In Neal, the Ninth Circuit addressed two cases in which inmates were compelled
to participate in Hawaii’s Sex Offender Treatment Program (“SOTP”), a program which
38 White v. Pauly, 137 S.Ct. 548, 552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)
and Anderson, 483 U.S. at 640 (internal quotation marks omitted)).
39 May, 109 F.3d at 561.
40 Docket 55 (Pl. Opp’n) at 3, 9–10 (citing Wolff v. McDonnell, 418 U.S. 539, 558 (1974) and Neal
v. Shimoda, 131 F.3d 818, 822 (9th Cir. 1997)); see also Docket 44-1 (Pl.’s Proposed Order) at
12; Docket 81 (Pl.’s Reply) at 2.
41 Docket 55 (Pl. Opp’n) at 10 (citing Coleman v. Dretke, 395 F.3d 216, 224 (5th Cir. 2004)).
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required inmates to successfully complete sex offender treatment and admit to the sexual
offenses charged against them as a pre-condition of parole release. One of the prisoners,
Mr. Neal, had been indicted for a sex offense, and the presentence report contained
allegations of sexual misconduct. 	However, pursuant to a plea agreement, the State
dismissed the sex offense charges and Mr. Neal pleaded guilty to robbery, among other
violent felonies. 	Nevertheless, Mr. Neal was classified by the Hawaii Department of
Public Safety (“DPS”) as a “sex offender” based on a review of his records. 	Mr. Neal
asserted that DPS’s classification implicated a liberty interest subject to the protections
of procedural due process, which had not been accorded to him.
The Ninth Circuit held that “the stigmatizing consequences of the attachment of
the ‘sex offender’ label coupled with the subjection of the targeted inmate to a mandatory
treatment program whose successful completion is a precondition for parole eligibility
create 	the 	kind 	of 	deprivations 	of 	liberty 	that 	require 	procedural 	protections.”42
Accordingly, the Ninth Circuit held that Mr. Neal was entitled to notice of the reason for
the sex offender classification, as well as “a hearing at which he must be allowed to call
witnesses and present documentary evidence in his defense” before the state could
require his participation in the SOTP as a condition to parole eligibility.43 But in the case
of the other prisoner, who had been convicted of a sex crime in a prior criminal
42 Neal, 131 F.3d at 830; see also Vitek v. Jones, 445 U.S. 480, 490–91 (1980) (“[I]f the State
grants a prisoner a right or expectation that adverse action will not be taken against him except
upon the occurrence of specified behavior, ‘the determination of whether such behavior has
occurred becomes critical, and the minimum requirements of procedural due process appropriate
for the circumstances must be observed.’” (quoting Wolff, 418 U.S. at 558)).
43 Neal, 131 F.3d at 831.
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proceeding, the Ninth Circuit held that he had already received the minimum procedural
protections required by due process.44
Mr. Milazzo also cites a Fifth Circuit case, Coleman v. Dretke, to support his
assertion that he was entitled to an evidentiary hearing before being treated as a sex
offender for Farm employment and furlough purposes. In Coleman, the inmate was also
charged with a sex offense and the underlying police reports contained allegations of
sexual misconduct, but pursuant to a plea agreement, Mr. Coleman was convicted only
of misdemeanor assault.45 	When Mr. Coleman was released from prison, the parole
panel required him to attend sex offender therapy, without according any procedural
protections to Mr. Coleman before imposing that requirement. 	Mr. Coleman failed to
enroll or participate in therapy, as a result of which his parole was revoked. 	The Fifth
Circuit held that “the Due Process Clause . . . provides Coleman with a liberty interest in
freedom from the stigma and compelled treatment on which his parole was conditioned,
and the state was required to provide procedural protections before imposing such
conditions.”46
In this case, DOC determined that the facts surrounding Mr. Milazzo’s Coercion
conviction constituted an offense that was sexual in nature based on its review of the
relevant documents from the underlying criminal case. 	As a result, Mr. Milazzo was
deemed ineligible for Farm employment and furlough. 	But the Court finds there is a
44 Id.
45 Coleman, 395 F.3d at 219.
46 Coleman, 395 F.3d at 223.
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significant distinction between the liberty interests at stake in Neal and Coleman (“highly
invasive” mandatory sex offender treatment as a condition of parole eligibility) and the
interests at stake in Mr. Milazzo’s case (a prison employment opportunity and furlough
eligibility).47 	Moreover, based on the evidence presented, the Court finds a substantial
difference 	between 	the 	stigmatizing 	effect 	in 	both 	Neal 	and 	Coleman 	and 	any
stigmatization that resulted from DOC’s internal treatment of Mr. Milazzo as a sex
offender for employment and furlough purposes. 	For unlike in Neal, Mr. Milazzo was
never publicly identified as a sex offender; he was not required to complete sex offender
treatment while in prison; and he was not required to admit to being a sex offender as a
condition of parole eligibility. 	And unlike the prisoner in Coleman, Mr. Milazzo was not
potentially subject to psychiatric medication and treatment with plethysmographs.48 While
Mr. Milazzo has filed declarations from other inmates who opined based on circumstantial
evidence that DOC was treating Mr. Milazzo as a sex offender because he was not hired
for the electrician job on the Farm;49 any such stigmatization is limited in scope and
distinguishable from the far more concrete and public stigmatization the prisoners
experienced in Neal and Coleman.
The other cases Mr. Milazzo cites in support of his assertion that he had a liberty
interest in Farm employment and furlough eligibility are also factually distinct from Mr.
47 Mr. Milazzo acknowledges that “[he] was not placed into a program similar to the State of
Hawaii’s SOTP program.” Docket 44-1 (Proposed Order) at 5.
48 Coleman, 395 F.3d at 223 n.28.
49 See Docket 81-1 (Wiglesworth Decl.), 81-2 (Van Camp Decl.), 81-3 (Gamber Decl.).
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Milazzo’s case.50 	And Defendants cite to cases that support their assertion that Mr.
Milazzo had no constitutionally protected liberty interest in eligibility for Farm employment
or furlough.51 For example, in Hertz v. Macomber, the Alaska Supreme Court explicitly
held that a prisoner does not have a federally protected liberty interest in furlough release
and cited several federal circuit and district court decisions that had reached the same
conclusion.52 	In sum, the Court finds that Mr. Milazzo does not have a constitutionally
protected 	liberty 	interest 	in 	Farm 	employment 	or 	furlough. 	Indeed, 	Mr. 	Milazzo
acknowledged that to be the case at oral argument, but argued that even without a
constitutionally protected liberty interest he is still entitled to procedural due process
protections.53 	But the Due Process Clause of the 14th Amendment only constrains
governmental decisions when a liberty or property interest is at stake.54 Accordingly, Mr.
50 See Chambers v. Colorado Dep’t of Corr., 205 F.3d 1237 (10th Cir. 2000) (holding that by
removing the benefit of good time credit from those labeled sex offenders, CDOC created a liberty
interest in inmate not being labeled a sex offender) (emphasis added); Kirby v. Siegelman, 195
F.3d 1285, 1291 (11th Cir. 1999) (per curiam) (holding that prisoner who was not convicted of a
sex offense is entitled to procedural due process before state declares him sex offender and
requires him to undergo sex offender treatment in prison that involves admitting to past sexual
misconduct as a precondition of parole eligibility).
51 Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004) (“[T]he Due Process Clause of the
Fourteenth Amendment does not create a property or liberty interest in prison employment.”)
(internal quotation marks omitted); Baumann v. Arizona Dep’t of Corr., 754 F.2d 841, 843–44 (9th
Cir. 1985) (“A prisoner has no independent constitutional right to conditional release before the
expiration of a valid sentence.” (citing Greenholtz v. Inmates of the Nebraska Penal and
Correctional Complex, 442 U.S. 1, 7 (1979))).
52 See Hertz v. Macomber, 297 P.3d 150, 157 n.27 (Alaska 2013); see also Capoeman v. Reed,
754 F.2d 1512, 1514 (9th Cir. 1985) (considering out-of-circuit cases, including district court and
state court cases from other circuits, to determine whether a right was clearly established in the
absence of Ninth Circuit precedent); Wilson v. Layne, 526 U.S. 603, 617 (1999) (noting that in the
absence of “a consensus of cases of persuasive authority” a rule was not “clearly established”).
53 Docket 83 (Minute Entry for Oral Argument).
54 See Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (“Procedural due process imposes
constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests
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Milazzo’s acknowledged lack of a liberty interest in Farm employment and furlough
eligibility is fatal to his federal due process claims. Moreover, even if Mr. Milazzo has a
liberty interest in Farm employment or furlough eligibility, any such right was not clearly
established at the time of the alleged violation. 	Therefore, Defendants Chynoweth,
Garner, and Bialka are entitled to qualified immunity on Claims 1 through 3.
2. State Right to Procedural Due Process
Defendants correctly observe that Mr. Milazzo’s state law claims in his Complaint
seek only injunctive relief. 	And, as discussed above, Mr. Milazzo’s claims for injunctive
relief against DOC and Defendant Conant will be dismissed.55
3. Federal Right to Equal Protection
In Claims 4 and 5, Mr. Milazzo argues that Defendants have violated his right to
equal protection under the U.S. Constitution. But rather than argue that he belongs to a
protected class, Mr. Milazzo argues that he has not been treated the same as other
inmates who also were not convicted of a sex offense. 	Federal law recognizes a
within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”); Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 569–70 (1972) (“The requirements of procedural
due process apply only to the deprivation of interests encompassed by the Fourteenth
Amendment’s protection of liberty and property.”).
55 Moreover, even if Mr. MIlazzo had sought damages for alleged state constitutional violations,
Defendants Chynoweth, Garner, and Bialka would be entitled to discretionary immunity under
state law. See Latham v. Palin, 251 P.3d 341 (Alaska 2011) (applying Alaska Statute 09.50.250
to plaintiff’s due process claims and holding that the challenged government action was entitled
to discretionary function immunity which “protects government decisions entailing planning or
policy formation”). 	Any state due process claim for damages would also fail on its merits, as
Alaska law makes clear that Mr. Milazzo does not have a protected liberty interest under Alaska
law in either Farm employment or furlough. See Ferguson v. Dep’t of Corr., 816 P.2d 134, 139
(Alaska 1991) (“Under Alaska law, however, prisoners have an enforceable interest in continued
participation in rehabilitation programs.” (emphasis added)); Hertz, 297 P.3d at 157 (“[T]he right
to rehabilitation does not create a right to furlough for all prisoners.”).
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cognizable equal protection claim brought by a “class of one,” if a plaintiff demonstrates
“that []he has been intentionally treated differently from others similarly situated and that
there is a no rational basis for the difference in treatment.”56 The Court finds that here,
the decision to treat inmates where there has been a probable cause finding of sexual
misconduct 	differently 	from 	inmates 	with 	no 	such 	finding 	for 	purposes 	of 	Farm
employment and furlough eligibility is rationally related to the goal of protecting the
general public, and more specifically the families and communities that live close to the
Farm. 	Accordingly, Mr. Milazzo cannot show that Defendants’ conduct violated his
federal right to equal protection. 	Thus, Defendants Chynoweth, Garner, and Bialka are
entitled to summary judgment on Mr. Milazzo’s federal equal protection claims.57
CONCLUSION
For the foregoing reasons, the Court finds that Mr. Milazzo’s claims for injunctive
relief will be dismissed against Defendants Conant and the State of Alaska, Department
of Corrections. 	Defendants Chynoweth, Garner, and Bialka are entitled to summary
judgment on each of Mr. Milazzo’s claims for damages under the U.S. Constitution. The
Court will not address Defendants’ other arguments regarding the merits of Mr. Milazzo’s
claims, 	res 	judicata, 	or 	failure 	to 	exhaust 	administrative 	remedies 	as 	they 	are
unnecessary for the resolution of this action. 	Because Defendants are entitled to
56 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
57 Any claim for equal protection under the Alaska Constitution would also not survive summary
judgment, because the policy of treating inmates charged with sex offenses differently for
purposes of Farm employment and furlough eligibility is substantially related to the legitimate goal
of public safety. 	See Pub. Emps.’ Ret. Sys. v. Gallant, 153 P.3d 346, 349 (Alaska 2007);
Gonzalez v. Safeway Stores, Inc., 882 P.2d 389, 396 (Alaska 1994).
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summary judgment on all claims, Mr. Milazzo’s motion for partial summary judgment will
be denied.
IT IS ORDERED:
1. Plaintiff’s motion for partial summary judgment at Docket 44 is DENIED;
2. Defendants’ motion for summary judgment at Docket 46 is GRANTED; and
3. The Clerk of Court is directed to enter a judgment accordingly.
DATED this 21st day of April, 2017.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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