Rios v. Parole and Probation

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * * 9 MICHAEL JON RIOS, Case No. 3:20-cv-000438-LRH-CLB

10 Plaintiff, ORDER v. 11 STATE OF NEVADA, EX. REL. 12 DEPARTMENT OF PUBLIC SAFETY; DIVISION OF PAROLE AND 13 PROBATION; LISA BRANNON; JACOB SOMMER; CHRISTOPHER M. 14 HOHNHOLT; AND DOES 1 – 10, INCLUSIVE, 15 Defendants. 16 17 Before the Court is Defendants State of Nevada ex rel. its Department of Public Safety, 18 Division of Parole and Probation, Lisa Brannon, and Christopher Hohnholz’s (collectively, 19 “Defendants”) Motion to Dismiss Plaintiff’s Amended Complaint (ECF No. 9). Plaintiff Michael 20 Rios (“Rios”) opposed the motion (ECF No. 10), and Defendants replied (ECF No. 16). Also 21 pending before the Court is Defendant Jacob Sommer’s Motion to Dismiss Plaintiff’s Complaint 22 (ECF No. 17). The Defendants joined Sommer’s Motion to Dismiss (ECF No. 20). Rios opposed 23 the motion (ECF No. 21), and Sommer replied (ECF No. 22). 24 For the reasons articulated in this Order, the Court grants Sommer’s motion to dismiss 25 (ECF No. 17). 26 I. BACKGROUND 27 This action spans nearly twenty years and involves several different, yet connected, judicial 1 State of Nevada, pleaded guilty to sexual assault under then effective NRS 200.366.3(b)(2). ECF 2 No. 9-1, at 4. Relevant here, upon release from incarceration in 2012, the court sentenced Rios to 3 lifetime supervision under then effective NRS 176.0931. Id. Rios signed a Lifetime Supervision 4 Agreement with the Division of Parole and Probation (“P&P”) containing extra-statutory 5 conditions, which among other items, included a prohibition of possession or use of alcoholic 6 beverages. ECF No. 3 ¶ 12. 7 In early July of 2014, P&P filed a notice that Rios violated the terms of the Lifetime 8 Supervision Agreement by being found under the influence of alcohol. ECF No. 3 ¶ 13. After 9 having Defendant Sommer (“Sommer”) appointed as his counsel, on July 28, 2015, Rios pleaded 10 guilty to the violation. ECF No. 9-1, at 1. On October 15, 2015, the Tenth Judicial District Court 11 of the State of Nevada sentenced Rios to a suspended prison term which included a five-year period 12 of probation with a court-imposed condition further prohibiting use or possession of alcohol during 13 the term of probation. ECF No. 9, at 2–3. 14 On July 28, 2016, the Nevada Supreme Court issued its opinion in McNeill v. State, 375 15 P.3d 1022 (2016). Most relevant, the Court held that the parole board cannot impose lifetime 16 supervision conditions beyond those enumerated in NRS 213.1243. Id. at 1025. As such, an 17 offender’s failure to comply with a non-statutory lifetime supervision condition imposed by the 18 parole board, like a prohibition of possession or use of alcoholic beverages, would no longer 19 constitute a criminal violation. Id. 20 In July 2018, Defendants Hohnholz (“Hohnholz”) and Brannon (“Brannon”) reported that 21 Rios violated his 2015 court-imposed probation terms by driving under the influence of alcohol. 22 ECF No. 9-1, at 18–19. Rios was brought before the Tenth Judicial District of Nevada, and, while 23 again being represented by Sommer, Rios admitted to the allegations contained within the violation 24 report and the court subsequently revoked his probation. Id. 25 On September 26, 2020, Rios, relying on the McNeil decision, filed his first amended 26 complaint alleging four causes of action, under 42 U.S.C. § 1983 (“§ 1983”), against P&P, Lisa 27 Brannon, Christopher Hohnholz, and Jacob Sommer. ECF No. 3. These causes of action include: 1 wrongful imprisonment (“wrongful imprisonment”); (2) P&P’s alleged violations of Rios’ Fourth, 2 Fifth, and Fourteenth Amendment for failing to properly train its officials (“failure to train”); (3) 3 Brannon and Hohnholz’s alleged violations of Rios’ Fifth and Fourteenth Amendment due process 4 rights (“substantive due process”); and (4) Sommer’s alleged malpractice during his representation 5 of Rios (“attorney malpractice”). Id. The Defendants and Sommer filed the pending motion(s) to 6 dismiss arguing that Rios’ amended complaint fails to state cognizable constitutional claims. ECF 7 Nos. 9, 17. 8 II. LEGAL STANDARD 9 A party may seek the dismissal of a complaint under Federal Rule of Civil Procedure 10 12(b)(6) for failure to state a legally cognizable cause of action. See Fed. R. Civ. P. 12(b)(6) 11 (stating that a party may file a motion to dismiss for “failure to state a claim upon which relief can 12 be granted[.]”). To survive a motion to dismiss for failure to state a claim, a complaint must satisfy 13 the notice pleading standard of Federal Rule 8(a)(2). See Mendiondo v. Centinela Hosp. Med. Ctr., 14 521 F.3d 1097, 1103 (9th Cir. 2008). Under Rule 8(a)(2), a complaint must contain “a short and 15 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 16 Rule 8(a)(2) does not require detailed factual allegations; however, a pleading that offers only 17 “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” is 18 insufficient and fails to meet this broad pleading standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 19 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 20 To sufficiently allege a claim under Rule 8(a)(2), viewed within the context of a 21 Rule 12(b)(6) motion to dismiss, a complaint must “contain sufficient factual matter, accepted as 22 true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 23 570). A claim has facial plausibility when the pleaded factual content allows the court to draw the 24 reasonable inference, based on the court’s judicial experience and common sense, that the 25 defendant is liable for the alleged misconduct. See id. at 678-679 (stating that “[t]he plausibility 26 standard is not akin to a probability requirement, but it asks for more than a sheer possibility that 27 a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with 1 to relief.”) (internal quotation marks and citations omitted). Further, in reviewing a motion to 2 dismiss, the court accepts the factual allegations in the complaint as true. Id. However, bare 3 assertions in a complaint amounting “to nothing more than a formulaic recitation of the elements 4 of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret Serv., 572 F.3d 5 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 698) (internal quotation marks omitted). The 6 court discounts these allegations because “they do nothing more than state a legal conclusion— 7 even if that conclusion is cast in the form of a factual allegation.” Id. “In sum, for a complaint to 8 survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from 9 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Id. 10 III. DISCUSSION 11 In sum, Rios’ complaint alleges that the Defendants and Sommer violated his constitutional 12 rights by failing to adhere to the Nevada Supreme Court’s McNeil decision during his 2018 13 probation revocation proceedings. According to Rios, the Defendants and Sommer violated his 14 constitutional rights by failing to take note that Rios’ 2015 violation of a non-statutory condition 15 of lifetime supervision (alcohol use) was held unconstitutional under Nevada law. Specifically, 16 Rios alleges that the Defendants and Sommer improperly reported and allowed him to plead guilty 17 to a violation of his court-imposed probation terms which were imposed because of an allegedly 18 unconstitutional 2015 conviction. As a result, pursuant to § 1983, Rios seeks to recover damages 19 for his alleged unconstitutional conviction and imprisonment. 20 The Defendants and Sommer filed separate motions to dismiss. The Defendants later joined 21 the arguments and reasoning raised in Sommer’s motion to dismiss. As articulated below, the 22 Court grants Sommer’s motion to dismiss all claims, rendering the Defendant’s original motion to 23 dismiss moot.1 A. Pursuant to Heck, the Court grants Sommer’s motion to dismiss Rios’ 24 complaint. 25 Sommer argues, citing Heck v. Humphrey, 512 U.S. 477 (1994), that Rios’ complaint fails 26 as a matter of law because Rios has not properly challenged his underlying unconstitutional 27 1 conviction. Stated differently, Sommer asserts that Rios has not had a court declare his 2015 2 violation of a non-statutory condition of lifetime supervision void following the Nevada Supreme 3 Court’s decision in McNeil. Without any authority declaring the conviction void, according to 4 Sommer, Rios’ claims fail as a matter of law. 5 Civil litigation is generally not seen as a vehicle to challenge the validity of a criminal 6 judgment. As articulated by the United States Supreme Court, “…when a state prisoner seeks 7 damages in a § 1983 suit, the district court must consider whether a judgment in favor of the 8 plaintiff would necessarily imply the invalidity of any outstanding conviction or sentence; if it 9 would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or 10 sentence has already been invalidated.” Heck, 512 U.S. at 487. As such, plaintiffs usually must 11 have their underlying conviction or sentence declared invalid before seeking a remedy pursuant to 12 § 1983. See Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (finding that the reach of Heck 13 “turns solely on whether a successful § 1983 actions would necessarily render invalid a conviction, 14 sentence, or administrative sanction that affected the length of the prisoner’s confinement.”) 15 In this case, success on Rios’ § 1983 claims—wrongful imprisonment, failure to train, and 16 substantiative due process violations—would necessarily imply the invalidity of his underlying 17 2015 conviction. However, Rios has yet to provide the Court with a direct order or formal 18 declaration indicating that the 2015 conviction is void. Under Heck and its progeny, it is normally 19 not within the province of a federal court, in a § 1983 suit, to retroactively declare a state conviction 20 void. Accordingly, Heck is directly on point and requires the dismissal of Rios’ complaint. 21 Nevertheless, in his response to Sommer’s motion to dismiss, Rios argues that, (1) Sommer does 22 not have standing to challenge the claims brought under § 1983, and (2) Heck does not bar his 23 claims for damages. 24 1. Standing 25 In his opposition, Rios argues that Sommer lacks standing to challenge the complaint 26 because Sommer is not being sued pursuant to § 1983. As he points out, Rios only brought a state 27 attorney malpractice claim against Sommer for failing to challenge the validity of his underlying 1 While Rios is correct that a state attorney malpractice claim is not cognizable under § 1983, 2 that fact alone does not require denial of Sommer’s motion to dismiss. The Defendants—who 3 clearly have standing to challenge the § 1983 claims—adopted Sommer’s same arguments and 4 grounds for dismissal in their joinder to his brief. As such, the Defendants also argue that Heck 5 bars any § 1983 action brought against them as there has not been a sufficient challenge to Rios’ 6 underlying conviction. Consequently, issues of standing do not prevent the Court from addressing 7 the arguments raised in Sommer’s motion to dismiss. 8 Nevertheless, Rios further contends that Heck does not bar claims for the attorney 9 malpractice claim brought against Sommer. While true, Heck only applies to § 1983 claims, this 10 Court does not have to exercise supplemental jurisdiction over the state attorney malpractice claim 11 after the dismissal of the § 1983 claims. See Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 12 (9th Cir. 2010) (quoting 28 U.S.C. § 1367(c)(3)) (“[a] district court ‘may decline to exercise 13 supplemental jurisdiction’ if it ‘has dismissed all claims over which it has original jurisdiction.’”) 14 Therefore, as explained below, since this Court is dismissing the federal question claims brought 15 under § 1983, the Court will decline to exercise supplemental jurisdiction over the state attorney 16 malpractice claims as well. 17 2. Exceptions to Heck 18 Rios alleges that Heck does not require dismissal of the § 1983 claims because his claims 19 fall under an exception to the general rule. Specifically, Rios argues that the Ninth Circuit in 20 Nonnette v. Small declared that Heck does not bar § 1983 claims if habeas relief to challenge an 21 underlying conviction was unavailable based upon the release of the plaintiff from custody, or, 22 according to Rios, through “no fault of his own.” 316 F.3d 872, 877 (9th Cir. 2002); see also 23 Beckway v. DeShong, 717 F.Supp.2d 908, 917 (N.D. Cal. 2010) (citing Guerrero v. Gates, 442 24 F.3d 697 (9th Cir. 2006)). 25 However, Rios’ reading of Nonnette overgeneralizes the holding, and the exception 26 announced is in fact much narrower. Nonnette concerned an inmate challenging the miscalculation 27 of his sentence by prison officials, and a revocation of good-time credits. Id. at 874. Quite 1 challenging administrative calculations surrounding his conviction. Id. The Ninth Circuit allowed 2 the inmate’s § 1983 suit to continue even though he was no longer in custody—a fact which 3 normally bars habeas relief. Id. at 875. This “no fault” exception declared by the Ninth Circuit in 4 Nonnette is for “former prisoners challenging loss of good-time credits, revocation of parole or 5 similar matters,” id. at 878 n.7, and not, as Rios is here, for “plaintiffs collaterally challenging 6 underlying criminal convictions”. El v. Crain, 560 F.Supp.2d 932, 945 (C.D. Cal. 2008) (rev’d on 7 other grounds). The Ninth Circuit made clear that “…the status of prisoners challenging their 8 underlying convictions or sentences does not change upon release, because they continue to be 9 able to petition for a writ of habeas corpus.” Id. (citing Spencer v. Kenma, 423 U.S. 1, at 7–12 10 (1998)). 11 Rios’ claims have not satisfied the Nonnette exemption from Heck. Rios, by challenging 12 his 2018 probation revocation, is tacitly declaring that his 2015 conviction for a violation of his 13 non-statutory lifetime agreement condition is void. However, Rios has not provided any evidence 14 that his 2015 conviction “has been reversed on direct appeal, expunged by executive order, 15 declared invalid by a state tribunal authorized to make such determination, or called into question 16 by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 487.2 The record is 17 clear that no court or body in the State of Nevada has declared Rios’ 2015 conviction void 18 following McNeil.3 If this Court were to allow Rios to pursue his § 1983 claims, it would 19 necessarily declare his 2015 conviction void—directly contravening the holding in Heck. Id. at 20 486. (“[w]e think the hoary principle that civil tort actions are not appropriate vehicles for 21 challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that 22 necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement…”) 23 /// 24 /// 25

26 2 While the McNeil decision calls into question the constitutionality of the 2015 conviction, no official body has formally declared the conviction void. 27 3 Rios has unsuccessfully pursued habeas relief via the state courts. Most recently, the Tenth Judicial District Court of the State of Nevada determined that Rios’ petition for habeas relief was untimely. See ECF No. 21-3, at 6 (“Although ] Therefore, because the § 1983 claims contained within Rios’ complaint implicitly 2 || challenge the validity of his underlying 2015 conviction—which served as the basis for his 2018 3 || probation revocation—the Court will grant Sommer’s motion to dismiss pursuant to Heck. || IV. CONCLUSION 5 IT IS THEREFORE ORDERED that Sommer’s motion to dismiss (ECF No. 17) is 6 || GRANTED. 7 IT IS FURTHER ORDERED that the Defendants motion to dismiss (ECF No. 9) is 8 || DENIED as moot. 10 IT IS SO ORDERED. 11 DATED this 27th day of May, 2021. .

13 LA . HICKS 4 UNITED STATES DISTRICT JUDGE

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