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Montalto v. Mississippi Department of Corrections

United States District Court, S.D. Mississippi, Northern Division

September 29, 2017




         The Court considers six items pending in the above styled case. Petitioner has filed two contempt motions, a motion seeking sanctions, and a motion to correct his request for sanctions; respondents have filed a motion to dismiss; and the Magistrate Judge has filed a Report and Recommendation.

         These submissions have been allowed to remain on this Court's docket due to the extraordinary and distressing nature of the facts underlying the case, including the obstinate refusal by correctional officials and their attorneys to comply with orders of this Court. Having held two hearings to uncover-as best is possible-the truth of the matter, the Court is now ready to rule.

         I. Facts and Procedure

         A. Background

         On November 4, 2006, Stephen Montalto suffered a mental and emotional breakdown due to stress and untreated mental illness. Docket No. 41-6 at 194-96. In search of a pond he had visited in the past, he drove his car off the road, through a barbed wire fence and entered a Rankin County residential subdivision through the wrong end of a cul-de-sac. Id. at 199. There, he saw a woman and her two-year-old child with whom he had no previous contact. He asserts that due to his mental state he perceived the child to be in danger. Id. at 195. He exited his vehicle, grabbed the child, returned to his vehicle, and despite a continued fight from the child's mother, drove away. Id. at 199. Montalto insists that he was looking for help. He drove to a neighbor's home and, after no answer at the door, flagged down a police car less than a mile from where he had abducted the child. Id. Montalto was arrested and charged with a variety of offenses related to the incident. Docket No. 41-7 at 74.

         In September 2008, Montalto pleaded guilty to aggravated assault and kidnapping. State v. Montalto, Nos. 17, 937 and 18, 213 (Rankin Cty. Cir. Ct. 2008). He was sentenced to serve 20 years in the custody of Mississippi Department of Corrections (“MDOC”), and ordered to register as a sex offender upon his release. Id.; Docket No. 41-7 at 76; see also Montalto v. State, 119 So.3d 1087 (Miss. Ct. App. 2013). Kidnapping of a minor is a sex offense in Mississippi, despite the possibility-as is the case here-of conviction without proof of any element of sexual misconduct. Miss. Code Ann. § 45-33-23(h) (“‘Sex offense' or ‘registrable offense' means any of the following offenses: . . . kidnapping, if the victim was below the age of eighteen (18).”).[1]

         In October 2008, MDOC conducted an initial psychological evaluation of Montalto and found that he experienced delusional or paranoid thinking. Docket No. 41-7 at 108. Montalto was also diagnosed with bipolar disorder, anxiety, and depression. Id.

         By all accounts Montalto was a model prisoner. By working several jobs as a “trusty, ” attending drug and alcohol classes, participating in therapy sessions, and taking advantage of other self-improvement opportunities offered by MDOC, Docket No. 41-7 at 122-56, Montalto earned more than 11 years of time toward his 20 year sentence.

         As his release date drew closer, Montalto asserts, and the State does not dispute, that his mother's address was approved to serve as his post-release residence. MDOC issued a certificate approving his mother's house in Brandon on December 5, 2014. Docket No. 2 at 41-43. He was released 15 days later on Saturday, December 20, 2014. Docket No. 41-2 at 5.

         The following Monday, December 22, 2014, Montalto attempted to officially register his mother's residence as his address on the Sex Offender Registry. That same day, he was notified that his mother's residence would not be approved and that he had until that evening to obtain and register a new residence. Respondents have not provided an explanation for the pre-approval then denial of this residence. Nevertheless, Montalto complied. Amazingly, he found new addresses in Jackson within the absurdly short deadline imposed by the State, moving to and registering his residence as the Billy Brumfield House that day, then the Exodus House on January 7, 2015.

         Notwithstanding Montalto's apparent compliance, Rankin County Field Officer Glen McCoy issued Montalto a Rule Violation Report (“RVR”). He cited Montalto's failure to obtain an approved address and ordered his arrest on January 9, 2015.[2] Docket No. 23-2 at 1.

         Twenty days later, MDOC disciplinary hearing officer Katrina Cooper says she held a hearing concerning the alleged housing violation. The evidence presented and testimony taken during the RVR hearing remain a mystery, as respondents repeatedly failed to comply with Court Orders to produce transcripts of the proceeding. But Officer Cooper apparently found Montalto guilty “based on the reporting officer's report and evidence presented at hearing.” Id. at 2. She recommended revoking Montalto's earned time and reclassifying him within MDOC as a sex offender. MDOC policy mandates that Inmates serving time for sex offenses are not eligible to earn time toward early release.

         B. This Suit

         Montalto filed this suit in April 2015, claiming that his re-incarceration and reclassification were unlawful. He specifically alleged that his conviction of kidnapping had been changed to kidnapping of a minor-making him ineligible for early release-and his earned time was revoked without due process. He requested reinstatement of his earned time and his immediate release.

         On September 23, 2015, Magistrate Judge Ball ordered respondents to file within 20 days an answer or other responsive pleading, to include “full and complete transcripts of all proceedings arising from the charge of violation of Earned Release Supervision against Petitioner, as well as the revocation of Petitioner's earned time credits.” Docket No. 10 at 2. Six days after the deadline passed, without requesting any extension of time, respondents filed their motion to dismiss. They argued that Montalto had failed to state a claim for relief and, in the alternative, had failed to exhaust his state remedies. Absent was any mention of hearings revoking petitioner's earned time or resulting in his re-incarceration, much less transcripts of those proceedings.[3]

         In November 2015, Montalto filed his first motion for contempt. He asserted that respondents failed to follow Judge Ball's Order to produce transcripts because either those transcripts do not exist or their content is “unfavorable to the State's position, and the State is attempting to conceal these facts.” Docket No. 13 at 2. The State did not respond to Montalto's allegations.

         Nine months later, in August 2016, Judge Ball entered his Report and Recommendation, advising that respondents' motion for dismissal be granted and petitioner's motion for contempt be denied. Docket No. 17. Montalto timely filed objections to the Report and Recommendation. Docket No. 19.

         In October 2016, noting respondents' failure to comply with Judge Ball's Order of September 2015, this Court ordered respondents to “file full and complete transcripts of all proceedings arising from the charge of violation of Earned Release Supervision against Petitioner, as well as the revocation of Petitioner's earned time credits.” Docket No. 21 at 1. Respondents again did not comply. Instead, they filed a one-page response and attached a list of the time petitioner had earned toward his early release[4] and a rule violation report. Docket Nos. 23, 23-1, and 23-2.

         In light of the State's repeated failure to produce any transcripts of any proceedings, Montalto filed his second motion for contempt on November 8, 2016. He attached the MDOC policy providing that “Hearings, which may result in an offender being demoted and/or earned time taken away, will be taped, ” and “[s]uch tapes will be maintained for at least three years.” Docket No. 24-1 at 3. Again, the State chose not to respond to petitioner's motion.

         This Court scheduled an omnibus hearing for January 20, 2017. It again directed respondents to comply with its Order of October 2016 by filing the requested transcripts or, if none existed, bringing persons responsible for making the requested records to the hearing.

         The State chose the latter option. Officer Cooper testified about how her hearings generally proceed:

Q: What is your -- I'm confused. You said you are a hearing officer.
A: Yes, sir.
Q: Right?
A: Yes, sir.
Q: Was there a hearing?
A: Yes, sir.
Q: If you don't remember this particular hearing, tell me what is a hearing like. I mean but if you remember Mr. Montalto's particular hearing, tell me what that was.
Was it a hearing?
A: Yes, it was a hearing, but I can't -- I can tell you what ...

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