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Quintero v. Bisbee

United States District Court, D. Nevada

September 10, 2019

CONNIE BISBEE, et al., Defendants.




         Pro se Plaintiff John Quintero, currently incarcerated and in the custody of the Nevada Department of Corrections (“NDOC”), alleges violations of his constitutional rights under 42 U.S.C. § 1983 against correctional facility and parole board employees and officials generally arising from a parole board's decision to deny him parole. Before the Court are two Reports and Recommendations (“R&Rs” or “Recommendations”) of United States Magistrate Judge Carla B. Carry (ECF Nos. 114 (“First R&R”), 116 (“Second R&R)). Plaintiff filed an objection to Judge Carry's Recommendations.[1] (ECF No. 117.) As further explained below, the Court will overrule Plaintiff's objection because the Court agrees with Judge Carry's analysis of the underlying motions, and will fully adopt the R&Rs, resolving this case in Defendants' favor.


         The Court incorporates by reference Judge Carry's recitation of the factual background of this case (see, e.g., ECF No. 116 at 1-2), and does not recite it here.[2] As relevant to Plaintiff's objection, Judge Carry issued two R&Rs primarily directed at two underlying motions, which also denied, mostly as moot, a number of other pending motions, in light of her decision to recommend granting those two primary underlying motions. The First R&R focuses on a motion to dismiss filed by a group of Defendants that refer to themselves as the “Parole Board and DPS Defendants, ” consisting of Shawn Arruti, Connie Bisbee, Darla Foley, Ed Gray, Natalie Wood, and James Wright. (ECF No. 62 at 1; see also ECF No. 114.) The Second R&R focuses on a motion for summary judgment filed by a group of Defendants that refer to themselves as the “NDOC Defendants, ” consisting of Adam Laxalt, Joe Prieto, David Tristan, Dwayne Deal, and James Dzurenda. (ECF No. 77 at 1; see also ECF No. 116.)

         A. Plaintiff's Claims

         Following screening and motion practice on Plaintiff's motion to amend his complaint, the Court allowed six of Plaintiff's claims to proceed. (ECF Nos. 4, 42, 55, 56 (the “Complaint”).) The Court briefly describes those claims here.

         Three of the six claims are due process claims. Count I and Count V both challenge Plaintiff's inability to contest the factual content of a presentence investigation report (“PSI”) prepared before sentencing in Plaintiff's underlying criminal case during the parole process, which the parole board partially relied on in denying parole to Plaintiff. (ECF Nos. 4 at 4-5, 42 at 4-5, 55 at 8.) Count I is a procedural due process challenge, and Count V is a substantive due process challenge. (ECF Nos. 42 at 4-5, 6-9, 55 at 6.) Count VI asserts that Defendants Bisbee and Gray violated Plaintiff's Fourteenth Amendment due process rights by using an “increasingly more serious aggravator [meaning a reason for denying parole that Plaintiff's crimes became increasingly more serious over time] resulting in the denial of Plaintiff's parole.” (ECF No. 42 at 9 (internal quotation marks omitted).)

         One of Plaintiff's claims is a state law claim. In Count II, Plaintiff alleges that Defendant Parole Commissioner Bisbee created an administrative regulation, NAC § 213.516, which exceeded the scope of her rulemaking authority under NRS § 209.341. (ECF No. 56 at 10.) NAC § 213.516 provides that the parole board will begin making its determination as to whether someone is entitled to parole using a matrix that considers both the severity level assigned to the crime pursuant to NAC § 213.512 and the incarcerated person's likelihood of re-offense determined pursuant to NAC § 213.514. See NAC § 213.516.

         Plaintiff's two other claims are First Amendment challenges to the factors NDOC considers when making parole decisions. Count III alleges a First Amendment establishment clause violation-that the administrative regulations governing NDOC's parole decisions effectively prioritize secular programming over religious programming, and thus discourage incarcerated people from exercising their religion, because participation in programming that does not include religious services counts as a positive factor weighing in favor of an incarcerated person being released on parole. (ECF No. 42 at 5.) Count IV alleges a First Amendment free exercise clause violation focused on the NDOC's Sexual Treatment of Offenders in Prison (“STOP”) program. (Id. at 6; see also ECF No. 4 at 8-9.) Plaintiff alleges that it is more likely he would have been granted parole if he had completed this program. (ECF No. 56 at 15-16.) However, Plaintiff refused to participate in it because he believes it is repugnant to his Catholic faith. (Id.) Plaintiff essentially explains that the STOP program requires participants to discuss their past sexual abuse of others in a group therapy session, whereas he understands confession to be a private exchange between one person and a priest. (Id.) Plaintiff therefore argues this program burdens his free exercise of Catholicism because he would have to participate in group therapy sessions to complete the program and receive the favorable consideration such completion would entail upon consideration for parole.[3] (Id.)

         B. Judge Carry's R&Rs

         As mentioned, Judge Carry's First R&R and Second R&R are very similar. They are structured in mostly the same way, and rely on overlapping legal reasoning to reach the ultimate recommendation that the Court should dismiss all of Plaintiff's claims or otherwise resolve this case by granting summary judgment in Defendants' favor.[4] The Court briefly summarizes the reasoning of Judge Carry's R&Rs below.

         First, Judge Carry found that all of Plaintiff's claims are barred to the extent he seeks money damages resulting from his confinement by the doctrine expressed in Heck v. Humphrey, 512 U.S. 477 (1994), and its progeny (the “Heck bar”). (ECF Nos. 114 at 3-5, 116 at 4-6.) She reached this conclusion because she found Plaintiff would obtain immediate or earlier release from confinement were he to succeed in obtaining the relief he seeks in this case-damages along with an injunction requiring a new parole hearing, and the imposition of new parole procedures on NDOC intended to make it more likely for Plaintiff to be released on parole. (ECF Nos. 114 at 4-5, 116 at 4-6.) Second, Judge Carry generally found that Plaintiff cannot state a claim for a due process violation because he cannot, as a matter of law, establish a protected liberty interest in parole under either federal or Nevada law. (ECF Nos. 114 at 5-6, 116 at 6-7.)

         As to Plaintiff's First Amendment claims, Judge Carry found that the challenged practices did not constitute substantial burdens on the exercise of Plaintiff's religion sufficient to state a claim. (ECF Nos. 114 at 7-8, 116 at 7-10.) In addition, as to Plaintiff's free exercise clause claim, Judge Carry found that the STOP program did not substantially burden the exercise of Plaintiff's religion because it is voluntary, nonreligious, and he was not denied parole because he declined to participate in it. (ECF No. 116 at 8.) Further, Judge Carry made the alternative finding that the STOP program was constitutionally permissible even if it substantially burdened Plaintiff's religious exercise because it had a rational connection to a legitimate penological interest-preventing recidivism in sex offenders. (Id. at 8-9.)

         Finally, because there is no right to parole in Nevada, and therefore there could be no violation of Plaintiff's constitutional rights even if Plaintiff could establish all of his alleged violations, Judge Carry found that all Defendants are entitled to qualified immunity. (ECF Nos. 114 at 9-10, 116 at 10-11.) This finding provides an alternative basis for Judge Carry's recommendation that the Parole Board and ...

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