Williams v. Hutchings ( 2021 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 RONALD WILLIAMS, Case No. 2:21-cv-00123-KJD-DJA 7 Plaintiff, ORDER v. 8 WILLIAM HUTCHINGS, et al., 9 Defendants. 10 Plaintiff, who is incarcerated in the custody of the Nevada Department of 11 Corrections (“NDOC”), has submitted a second amended1 civil rights complaint pursuant 12 to 42 U.S.C. § 1983, and has filed an application to proceed in forma pauperis and a 13 motion for appointment of counsel. (ECF Nos. 4, 14, 25, 26). Plaintiff’s application to 14 proceed in forma pauperis (ECF No. 4 is granted). Based on the information regarding 15 Plaintiff’s financial status, the Court finds that Plaintiff is not able to pay an initial 16 installment payment toward the full filing fee pursuant to 28 U.S.C. § 1915. Plaintiff will, 17 however, be required to make monthly payments toward the full $350.00 filing fee when 18 he has funds available. The Court now screens Plaintiff’s second amended civil rights 19 complaint under 28 U.S.C. § 1915A and addresses the motion for appointment of counsel. 20 I. SCREENING STANDARD 21 Federal courts must conduct a preliminary screening in any case in which an 22 incarcerated person seeks redress from a governmental entity or officer or employee of 23 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify 24 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 25 claim upon which relief may be granted, or seek monetary relief from a defendant who is 26 27 28 1 An amended complaint replaces an earlier complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989). Therefore, the 2 be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 3 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 4 elements: (1) the violation of a right secured by the Constitution or laws of the United 5 States; and (2) that the alleged violation was committed by a person acting under color 6 of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 7 In addition to the screening requirements under § 1915A, under the Prison 8 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 9 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 10 to state a claim on which relief may be granted, or seeks monetary relief against a 11 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a 12 complaint for failure to state a claim upon which relief can be granted is provided for in 13 Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under 14 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 15 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 16 the complaint with directions as to curing its deficiencies, unless it is clear from the face 17 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 18 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 19 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 20 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to 21 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 22 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 23 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all 24 allegations of material fact stated in the complaint, and the Court construes them in the 25 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 26 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 27 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 28 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 2 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 3 insufficient. See id. 4 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 5 that, because they are no more than mere conclusions, are not entitled to the assumption 6 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can 7 provide the framework of a complaint, they must be supported with factual allegations.” 8 Id. “When there are well-pleaded factual allegations, a court should assume their veracity 9 and then determine whether they plausibly give rise to an entitlement to relief.” Id. 10 “Determining whether a complaint states a plausible claim for relief . . . [is] a context- 11 specific task that requires the reviewing court to draw on its judicial experience and 12 common sense.” Id. 13 Finally, all or part of a complaint filed by an incarcerated person may be dismissed 14 sua sponte if that person’s claims lack an arguable basis either in law or in fact. This 15 includes claims based on legal conclusions that are untenable (e.g., claims against 16 defendants who are immune from suit or claims of infringement of a legal interest which 17 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 18 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); 19 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 20 II. SCREENING OF SECOND AMENDED COMPLAINT 21 In his Second Amended Complaint (“SAC”), Plaintiff sues Sherry Williams for 22 events that allegedly took place while Plaintiff was incarcerated by the Nevada 23 Department of Corrections. (ECF No. 26 at 1-2). Plaintiff brings three counts, and he 24 seeks monetary damages as well as injunctive relief in the form of a transfer to a prison 25 in California.2 (Id. at 16-21). 26 27 2 Under the Prison Litigation Reform Act (“PLRA”), preliminary injunctive relief must be “narrowly drawn,” must “extend no further than necessary to correct the harm the court 28 finds requires preliminary relief,” and must be “the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). There “must be a relationship between the 2 all three claims together. 3 Claim 1 alleges the following: Defendant Shelly Williams, a records 4 specialist/program officer at O.M.D., has caused Plaintiff “to do excessive prison time by 5 not applying the proper credits to Plaintiff’s minimum and maximum sentences. (ECF No. 6 26 at 5). The NDOC takes six days a month from Plaintiff “without notice or due process 7 of law” even when Plaintiff does not have any serious violations of the prison rules. (Id.) 8 Plaintiff has not been given the 20 days of deductions from his sentences each month 9 that is due to him under Nevada statutes.3 (Id.) For each month Plaintiff does not work 10 or go to school, he “loses” 6 days a month without “due process of law,” resulting in a 11 longer stay in prison. (Id.) 12 Plaintiff asserts that Shelly Williams knows that a “policy” would “subject Plaintiff 13 to a liberty interest” by not applying good time credits or recalculating Plaintiff’s sentence 14 in the proper fashion. (Id. at 6). Plaintiff asserts that, under NRS 209.4465, he is entitled 15 to good time/work time credits even if the NDOC does not have enough jobs and 16 programs for every prisoner. (Id.) Although Plaintiff’s allegations are not clear, he 17 appears to be alleging that he is being subjected to cruel and unusual punishment 18 because he has to spend most of his time alone in his cell with no programs, so he cannot 19 earn “good time/work time credits” and will stay in prison longer. (Id. at 7-8). 20 21 22 injury claimed in the motion for injunctive relief and the conduct asserted in the underlying complaint. This requires a sufficient nexus between the claims raised in a motion for 23 injunctive relief and the claims set forth in the underlying complaint itself.” Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 635–36 (9th Cir. 2015). Based on 24 these legal requirements, it is apparent from the allegations in the Second Amended Complaint that Plaintiff could not obtain a transfer to a California prison as relief in this 25 case. 26 3 Although it is not entirely clear, Plaintiff’s reference to 6 days per month appears to be a reference to credits for work and study that may be allowed under NRS 27 209.4465(2), and his reference to 20 days appears to be about good time credits earned under NRS 209.4465(1). Prior to an amendment to the law, the statutory good time 28 credits were 10 days per month, but while Plaintiff was in prison, on July 1, 2007, the statutory good time credits then increased to 20 days per month. 2007 Nev. Stat., ch. 2 he maintains that the “policy” of the NDOC should be rendered unconstitutional because 3 prisoners have a right to address the court under the due process guarantees of the Fifth 4 and Fourteenth Amendments. (Id. at 8). According to Plaintiff, this means that he has a 5 due process right not to have his § 1983 complaint dismissed.4 (Id.) 6 Plaintiff maintains that he has exhausted all administrative remedies through the 7 NDOC grievance procedures. (Id. at 9). The grievance procedures do not work, and 8 Plaintiff appears to conclude that he has a “liberty interest” associated with the grievance 9 procedures. (Id.) Shelly Williams had 17 years to correct the “violations of this liberty 10 interest,” and the Fourteenth Amendment prohibits a state from depriving any person of 11 liberty without due process of law. (Id.) 12 Plaintiff concludes that the denial of “access to work and education to earn good 13 time” is a violation of due process because Plaintiff must be provided notice or a hearing 14 before “the prison” does anything that harms life or liberty. (Id.) Plaintiff further concludes 15 that this has caused him atypical hardship or excessive confinement. (Id.) 16 Plaintiff also asserts that he was sentenced to consecutive prison terms from a 17 single incident and that the “redundant charges” are a violation of the Double Jeopardy 18 Clause and the Fifth and Fourteenth Amendments. (Id.) 19 Based on these allegations in Claim 1, Plaintiff concludes that his Fifth 20 Amendment, Eighth Amendment, and Fourteenth Amendment rights have been violated. 21 (Id. at 5). 22 Claim 2 alleges the following: Shelly Williams has been employed as a record 23 specialist/program officer for the NDOC since 1998 and knew that the violations were 24 illegal and would subject Plaintiff to “excessive prison time.” (ECF No. 26 at 11). Plaintiff 25 asserts that, under NRS 209.4465, he is entitled to good time/statutory credits and that 26 he is being penalized by the NDOC without due process of law or any notice, in violation 27 28 4 To the extent Plaintiff is alleging that he has a due process right not to have this action dismissed by the Court, he is incorrect. Moreover, any such claim would not 2 “Taking” 6 days per month is causing Plaintiff to do “excessive prison time.” (Id. at 12). 3 Plaintiff further alleges that NRS 209.4465 provides that earned credits of 20 days must 4 be deducted from Plaintiff’s minimum and maximum terms of imprisonment. (Id.) He 5 concludes that Defendant violated his Fourteenth Amendment right to due process. (Id. 6 at 13). 7 In addition, Plaintiff alleges that his Fourteenth Amendment right to equal 8 protection has been violated. He makes the conclusory assertion that Defendant “acted 9 with intent and purpose to discriminate” against Plaintiff “based upon membership in a 10 protected class” and that Defendant purposely treated him “differently than similarly 11 situated individuals without any rational basis.” (Id.) However, he alleges no facts at all 12 that would show that he is a member of a protected class. Rather, Plaintiff appears to be 13 pursuing a class of one equal protection claim and explicitly asserts that the Supreme 14 Court has recognized that there can be class of one equal protection claims. (Id. at 14, 15 15). Plaintiff alleges that he received responses from “N.D.O.C. case workers” stating 16 that they would not apply the Nevada Supreme Court’s decision in Vonseydewitz v. 17 Legrand, Dkt No. 66159, 2015 WL 3936827 (Nev. June 24, 2015) (unpublished 18 disposition) to inmates other than Vonseydewitz without a court order. (Id. at 13). In 19 Vonseydewitz, the Nevada Supreme Court held that good time credits should be applied 20 to Vonseydewitz’s minimum sentence because the sentencing statute did not state that 21 Vonseydewitz had to serve a specified minimum sentence before becoming eligible for 22 parole. (Id. at 14). Plaintiff asserts that he is in a class of one because the defendants5 23 knew that his sentencing statute permitted good time credits to be deducted from his 24 minimum and maximum sentences in light of Vonseydewitz, but “they” refused to apply 25 credits correctly “solely because Plaintiff did not have a court order requiring them to do 26 so, as Vonseydewitz did.” (Id. at 15). Plaintiff asserts that there is no rational basis for 27 distinguishing between inmates with court orders and those without court orders. (Id.) 28 5 Although Plaintiff repeatedly refers to multiple defendants, the SAC includes just 2 Amendment, Eighth Amendment, and Fourteenth Amendment rights have been violated. 3 (Id. at 11). 4 Claim 3 alleges the following: Plaintiff committed attempted murder with the use 5 of a deadly weapon on May 19, 2002, which “falls under NRS 209.4465(7)(b) between 6 1997 and 2007.” (ECF No. 26 at 16). Plaintiff alleges that the district court6 erred and 7 violated Plaintiff’s due process rights by denying Plaintiff’s application of credits due to 8 NRS 209.4465. (Id.) 9 In addition, in Claim 3, Plaintiff alleges that there was an ex post facto violation. 10 Plaintiff alleges that he committed his crimes before the enactment of “the amendment.” 11 (Id. at 17). He further alleges: “By applying subsection 8 to Plaintiff Ronald C. Williams 12 causes me a liberty interest, which the state has increased Plaintiff punishment because 13 the statute NRS 209.4465 section 8 appears to eliminate the good time credits Plaintiff 14 suppose to earn prior to enactment.” (Id.) Plaintiff asserts that such laws are prohibited 15 by the Ex Post Facto Clause in Article 1 of the United States Constitution. (Id.) 16 Plaintiff also once again asserts that “Defendants and the N.D.O.C.” have made 17 him serve excessive prison time on all the charges that came out of a single act when he 18 should have been charged with just one count of attempt murder with the use of a deadly 19 weapon. (Id. at 18). 20 Plaintiff again asserts that he is entitled to “credits” to both minimum and maximum 21 sentences under NRS 209.4465(7)(b).7 (Id. at 18). 22 Plaintiff asserts that all his claims are supported by attached exhibits. (Id.) 23 24 25 26 6 This appears to be a reference to a Nevada state district court. Plaintiff does not allege what the error was. More importantly, the district court is not a defendant in this 27 action and cannot be a defendant in this action. 28 7 The Court notes that, by its terms, NRS 209.4465(7)(b) affects only minimum sentences and parole eligibility dates, not maximum sentences and sentence expiration 2 Amendment, and Fourteenth Amendment rights have been violated and that there has 3 been an ex post facto violation. (Id. at 16). 4 A. Heck Bar 5 Throughout the SAC, Plaintiff alleges that conduct has affected his maximum 6 sentence and that he has served excessive time in prison. As the Court previously 7 explained, such allegations must survive the Heck bar. (ECF No. 24 at 5). In Heck v. 8 Humphrey, 512 U.S. 477 (1994), the Supreme Court held that “in order to recover 9 damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm 10 caused by actions whose unlawfulness would render a conviction or sentence invalid, a 11 § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct 12 appeal, expunged by executive order, declared invalid by a state tribunal authorized to 13 make such determination, or called into question by a federal court’s issuance of a writ of 14 habeas corpus.” Id. at 486-87. “A claim for damages bearing that relationship to a 15 conviction or sentence that has not been . . . invalidated is not cognizable under § 1983.” 16 Id. at 487. “Thus, when a state prisoner seeks damages in a § 1983 suit, the district court 17 must consider whether a judgment in favor of the plaintiff would necessarily imply the 18 invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless 19 the plaintiff can demonstrate that the conviction or sentence has already been 20 invalidated.” Id. As a result, the Supreme Court has held that a state prisoner’s § 1983 21 action is barred (absent prior invalidation)–no matter the relief sought (damages or 22 injunctive relief) if success in that action necessarily would demonstrate the invalidity of 23 confinement or its duration. Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).8 24 25 8 However, if a civil claim merely would speed up the plaintiff’s consideration for parole and would not necessarily imply the invalidity of the duration of confinement, then 26 that claim may proceed in a § 1983 action. Id. at 82. Thus, to the extent Plaintiff is merely challenging the calculation of his parole eligibility date only and that any such claim would 27 not necessarily directly or indirectly affect the fact or duration of his confinement, such a claim is not barred by Heck and Wilkinson. That does not mean, however, that Plaintiff 28 has stated a colorable claim against any of the named defendants concerning his parole eligibility date. As discussed below, he has not. 2 that explicitly or implicitly necessarily challenge the fact or duration of his confinement, 3 then any second amended complaint must show that a court already has invalidated the 4 fact or duration of confinement. (ECF No. 24 at 6). The Court explicitly informed Plaintiff 5 that invalidation or recalculation of a parole eligibility date would not be sufficient to permit 6 Plaintiff to raise any claim that necessarily calls into question the fact or duration of his 7 confinement, regardless of whether such a claim relates to past, current, or pending 8 sentences. (Id.) 9 Plaintiff has not shown that the fact or duration of his confinement already has 10 been invalidated by a court. Although the SAC includes documents concerning a state 11 court habeas matter, that matter concerned the calculation of Plaintiff’s minimum 12 sentence and parole eligibility date. (ECF No. 26-1 at 5-15). Despite the Court’s previous 13 advisement, Plaintiff has not shown that a court has ruled that Plaintiff impermissibly was 14 charged, convicted, and sentenced9 in violation of the Double Jeopardy Clause and has 15 not shown that any court has ruled that the length of any of his sentences have had 16 improper expiration dates or that he otherwise has spent too much time in prison. 17 Accordingly, all of the claims in the SAC that explicitly or implicitly challenge the fact of 18 Plaintiff’s convictions or the duration of his confinement are barred. This includes all 19 claims that he improperly was charged, convicted, and sentenced for multiple crimes 20 arising out of the same incident and all claims that explicitly or implicitly allege that his 21 maximum sentence or expiration date were improperly calculated or affected. The Court 22 dismisses these claims with prejudice, as amendment would be futile. 23 The Court will address below any claims that necessarily challenge only the 24 application of credits to Plaintiff’s minimum sentence and parole eligibility date as such 25 claims are not barred by Heck. Because an earlier parole hearing would not necessarily 26 9 Plaintiff also has not alleged facts sufficient to show that Shelly Williams was 27 responsible for charging, convicting, or sentencing him, so he necessarily does not state a claim against Shelly Williams for such conduct. As the Court previously informed 28 Plaintiff, see ECF No. 24 at 4, a plaintiff must plead facts sufficient to show that each particular Government-official defendant, through the official’s own individual actions, has 2 duration of Plaintiff’s confinement, to the extent Plaintiff is challenging only the application 3 of credits to determine his parole eligibility date, such claims are not barred by Heck or 4 Wilkinson. The Court therefore will screen Plaintiff’s claims that concern Shelly Williams’s 5 alleged actions affecting only the application of credits to his parole eligibility date. 6 B. Fifth Amendment Due Process Claims 7 Plaintiff repeatedly asserts that his Fifth Amendment rights have been violated. 8 The Fifth Amendment's Due Process Clause applies to the federal government, not the 9 States, while the Fourteenth Amendment’s Due Process Clause applies to the states. 10 See Castillo v. McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005). Plaintiff has not 11 alleged actions by a federal employee. Therefore, to the extent Plaintiff is seeking to 12 bring any Fifth Amendment due process claim, any such claim is dismissed with 13 prejudice, as amendment would be futile. 14 C. Fourteenth Amendment Due Process Claims 15 The United States Constitution does not create a liberty interest in a job, 16 educational program, prison classification, or assignment to a particular prison. See 17 Collins v. Palczewski, 841 F.Supp. 333, 336, 340 (D. Nev. 1993) (finding that neither the 18 U.S. Constitution, Nevada statutory law, nor the state’s prison administrative regulations 19 create a protected liberty or property interest in prison employment); Moody v. Daggett, 20 429 U.S. 78, 88 n.9 (1976) (holding that prisoners have no liberty interest in their 21 classification status or in rehabilitation programs); Olim v. Wakinekona, 461 U.S. 238, 245 22 (1983) (holding that “an inmate has no justifiable expectation that he will be incarcerated 23 in any particular prison within a State”). Therefore, Plaintiff’s classification, prison 24 assignment, and lack of job and programming opportunities are not sufficient to state a 25 colorable liberty interest. 26 Allegations that a defendant violated state law are not sufficient to state a claim for 27 violation of the Fourteenth Amendment’s Due Process Clause. Swarthout v. Cooke, 562 28 U.S. 216, 222 (2011); see also Young v. Williams, No. 2:11-CV-01532-KJD, 2012 WL 2 credits to sentence was an error of state law that did not constitute a due process 3 violation). In order to state a Fourteenth Amendment due process claim, a plaintiff must 4 adequately allege that he was denied a specified liberty interest and that he was deprived 5 of that liberty interest without the constitutionally required procedures. Swarthout, 562 6 U.S. at 219. 7 Nevada state prisoners do not have a liberty interest in the grant of parole. See 8 Moor v. Palmer, 603 F.3d 658, 661-62 (9th Cir. 2010). Because the grant of parole is 9 discretionary in Nevada, state statutes creating procedures concerning the discretionary 10 grant of parole, such as parole eligibility provisions in NRS 209.4465, do not create a 11 liberty interest. Chaziza v. Stammerjohn, No. 19-17506, 2021 WL 2139080, at *1–2 (9th 12 Cir. May 26, 2021) (holding that Nevada prisoner did not establish a due process claim 13 where NDOC officials failed to properly apply NRS 209.44654 and Vonseydewitz to 14 deduct time credits and calculate his parole eligibility date); see also Olim v. Wakinekona, 15 461 U.S. 238, 250–51 (1983) (recognizing that where state officials have discretion and 16 prisoner does not a constitutional substantive right, the prisoner has no related 17 constitutional procedural right, and holding that state may choose to require certain 18 procedures but doing so does not create an independent constitutional substantive right 19 in those procedures). 20 Thus, to the extent Plaintiff is alleging that he was deprived of the ability to earn 21 credits and that credits were not properly applied to his parole eligibility date, in violation 22 of state law, he does not and cannot state a liberty interest. Accordingly, Plaintiff’s 23 allegations that Defendant Shelly Williams violated state law, including state procedures, 24 such as by not giving Plaintiff credits, jobs, and educational opportunities and by not 25 applying credits to his parole eligibility date, are not sufficient to state a due process claim. 26 In addition, to the extent Plaintiff alleges that his due process rights were violated 27 because there was not an effective grievance procedure or because he has a liberty 28 interest in a grievance procedure, he does not and cannot state a colorable due process 2 to the handling of grievances in any particular manner. See Mann v. Adams, 855 F.2d 3 639, 640 (9th Cir.1988) (holding that a state’s unpublished policy statements establishing 4 a grievance procedure do not create a constitutionally protected liberty interest because 5 there is no legitimate claim of entitlement to a grievance procedure); Ramirez v. Galaza, 6 334 F.3d 850, 860 (9th Cir. 2003) (recognizing that there is no liberty interest in the 7 processing of appeals because prisoners are not entitled to a specific grievance process); 8 Patterson v. Kane, No. 06-15781, 2006 WL 3698654, at *1 (9th Cir. Dec. 13, 2006) 9 (recognizing that denial of a grievance does not rise to the level of a constitutional 10 violation); LeBlanc v. Tabak, No. CV1603270JLSAFM, 2016 WL 6102327, at *6 (C.D. 11 Cal. Oct. 18, 2016) (holding that prisoner could not state a colorable due process claim 12 based on a defendant’s denial of a grievance or failure to adequately investigate a 13 grievance). 14 Accordingly, the Court dismisses the Fourteenth Amendment due process claims 15 with prejudice, as amendment would be futile. 16 D. Fourteenth Amendment Equal Protection Claims 17 Plaintiff brings a class of one equal protection claim, alleging that it was a violation 18 of equal protection for NDOC officials to apply the Nevada Supreme Court’s ruling in 19 Vonseydewitz v. Legrand, 131 Nev. 1360 (2015) (unpublished disposition) to Mr. 20 Vonseydewitz but not apply it to other prisoners, including Plaintiff, who did not have court 21 rulings in their own cases but had criminal sentences comparable to Mr. Vonseydewitz’s. 22 In Olech, the Supreme Court explicitly addressed “whether the Equal Protection 23 Clause gives rise to a cause of action on behalf of a ‘class of one’ where the plaintiff did 24 not allege membership in a class or group.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 25 564 (2000). The Supreme Court ruled in the affirmative and “recognized successful equal 26 protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has been 27 intentionally treated differently from others similarly situated and that there is no rational 28 basis for the difference in treatment.” Id.; see also Engquist v. Oregon Dep't of Agr., 553 2 some circumstances even if the plaintiff does not allege class-based discrimination, “but 3 instead claims that she has been irrationally singled out as a so-called ‘class of one’”). 4 Where a class of one equal protection claim is at issue, the Plaintiff must allege 5 facts sufficient to identify the group of individuals with whom he is similarly situated, 6 identify the allegedly intentional and disparate treatment, and allege that there was no 7 rational basis for the different treatment. Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 8 1022 (9th Cir. 2011); Chappell v. Bess, No. 2:01-CV-01979 KJN P, 2012 WL 3276984, at 9 *19–21 (E.D. Cal. Aug. 9, 2012). “Similarly situated” persons are those “who are in all 10 relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). 11 The Court finds that Plaintiff does not state a colorable equal protection claim. As 12 was allegedly the case with Plaintiff, NDOC officials took the position that Mr. 13 Vonseydewitz was not entitled under the law to have earned credits applied to his 14 minimum sentence under NRS 209.4465(7)(b). Vonseydewitz, 131 Nev. 1360 at *1. 15 However, in the unpublished disposition in Mr. Vonseydewitz’s case, the Nevada 16 Supreme Court ruled that NDOC officials had misinterpreted NRS 209.4465(7)(b) and 17 reversed and remanded for proceedings consistent with the unpublished disposition. Id. 18 at *3. Plaintiff alleges that the NDOC did not apply the Nevada Supreme Court’s 19 unpublished Vonseydewitz disposition to Plaintiff. However, under Nevada Rule of 20 Appellate Procedure 36(c), an unpublished disposition by the Nevada Supreme Court in 21 one person’s case establishes mandatory precedent in that particular person’s case but 22 does not establish mandatory precedent for another person’s case. Thus, although this 23 understandably would be frustrating for Plaintiff, under the law, the Nevada Supreme 24 Court’s unpublished disposition in Vonseydewitz was mandatory precedent for Mr. 25 Vonseydewitz, but the unpublished decision was not mandatory precedent for any NDOC 26 official’s decisions regarding Plaintiff. Plaintiff therefore has not alleged facts sufficient to 27 show that Mr. Vonseydwitz was in all relevant respects alike. Accordingly, Plaintiff does 28 2 the equal protection claim with prejudice, as amendment would be futile. 3 E. Eighth Amendment 4 Plaintiff appears to be alleging that his Eighth Amendment rights were violated 5 because he was not given a job and programming such as educational opportunities and 6 because he did not have credits applied to his minimum sentence or minimum sentences 7 when calculating his parole eligibility date. 8 As the Court explained in its previous screening order10, a plaintiff must plead facts 9 sufficient to show that each Government-official defendant, through the official’s own 10 individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 11 (2009). Although the SAC vaguely alleges that Defendant Shelly Williams did not apply 12 the proper credits to his sentences, the SAC does not allege that she denied him a job or 13 programming. Even if the SAC did include such allegations, this would not be sufficient 14 to state a colorable Eighth Amendment claim against her. It is not an Eighth Amendment 15 violation to deny a prisoner a job, education, or other programming. See Rhodes v. 16 Chapman, 452 U.S. 337, 348 (holding that deprivation of rehabilitation and educational 17 programs does not violate Eighth Amendment); Baumann v. Arizona Dept. of Corrections, 18 754 F.2d 841, 846 (9th Cir.1985) (holding that general limitation of jobs and educational 19 opportunities is not considered punishment); Hoptowit v. Ray, 682 F.2d 1237, 1254–55 20 (9th Cir.1982) (holding that “there is no constitutional right to rehabilitation”). 21 To the extent Plaintiff alleges that failing to apply the proper credits to his parole 22 eligibility date violated his Eighth Amendment rights, Plaintiff fails to state a colorable 23 Eighth Amendment claim. Because imprisonment is punitive, officials who detain a 24 person beyond the termination of a sentence may violate that person's rights under the 25 Eighth Amendment if they act with deliberate indifference to the prisoner's liberty interest. 26 Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985). For the reasons discussed 27 28 2 and Plaintiff has not adequately alleged a liberty interest and cannot do so. 3 Accordingly, the Court dismisses the Eighth Amendment claims with prejudice, as 4 amendment would be futile. 5 F. Ex Post Facto Claim – Parole Eligibility Dates 6 Although his theory is not clear, it appears that Plaintiff is alleging that there was 7 an ex post facto violation as a result of NRS 209.4465(8). It may be that Plaintiff is alleging 8 that he did not have any credits applied to his minimum sentences and parole eligibility 9 dates after July 1, 2007 due to the enactment of NRS 209.4465(8). Or, it may be that he 10 is alleging that he has received only ten good time credits per month for the time before 11 the enactment of NRS 209.4465(8). The Court therefore will address both theories. 12 Article I of the United States Constitution prohibits states from passing Ex Post 13 Facto laws. U.S. Const. Art. I, § 10, cl. 1. The Ex Post Facto Clause “forbids the 14 imposition of punishment more severe than the punishment assigned by law when the 15 act to be punished occurred.” Weaver v. Graham, 450 U.S. 24, 30 (1981); see also 16 Garner v. Jones, 529 U.S. 244 (2000). The Ex Post Facto Clause does not forbid changes 17 in the law. To fall within the ex post facto prohibition, a law must be applied 18 retrospectively, which means that it must apply to events occurring before its enactment. 19 Lynce v. Mathis, 519 U.S. 433, 441 (1997). Thus, the incorrect interpretation and 20 misapplication of a law that does not apply retrospectively to a person does not constitute 21 a violation of the Ex Post Facto Clause. See, e.g., Vonseydewitz, 2015 WL 3936827 at 22 *3 (rejecting ex post facto claim where official incorrectly applied NRS 209.4465(b), which 23 was not applied retroactively). 24 Plaintiff refers to NRS 209.4465(8) in his allegations of an ex post facto violation. 25 In 2002, when Plaintiff alleges that he committed his offense, NRS 209.4465(7) provided: 26 “Credits earned pursuant to this section: 27 (a) Must be deducted from the maximum term or the maximum aggregate term 28 imposed by the sentence, as applicable; and 2 statute which specifies a minimum sentence that must be served before a person 3 becomes eligible for parole.” NRS 209.4465(7) (emphasis added). 4 NDOC prison officials interpreted the limiting language in NRS 209.4465(7)(b) 5 narrowly. In Vonseydewitz v. Legrand, Dkt No. 66159, 2015 WL 3936827 (Nev. June 24, 6 2015) (unpublished disposition), the Nevada Supreme Court considered this limiting 7 language when addressing the issue of whether Vonseydewitz, a habeas petitioner, was 8 entitled under the language of NRS § 209.4465(7)(b) to have his earned credits applied 9 to his parole eligibility date. Id. The court interpreted the limiting language in NRS § 10 209.4465(7)(b) more broadly than NDOC officials had and held that Vonseydewitz was 11 entitled to have statutory credits applied to his parole eligibility dates because he had 12 committed an offense that required a minimum sentence but that did not explicitly require 13 the offender to serve a minimum period of time before being considered for parole. (Id. 14 at **2-3). Later, in a 2017, in a published opinion, the Nevada Supreme Court reached 15 the same conclusion regarding the proper interpretation of NRS 209.4465(7)(b) as it had 16 in Vonseydewitz. See Williams v. State Dep't of Corr., 402 P.3d 1260, 1262 (Nev. 2017). 17 The Nevada Legislature amended NRS 209.4465 in A.B. 510 and, on July 1, 2007, 18 these amendments went into effect. One of these amendments was to add subsection 19 8, which affected how earned credits were to be applied to some people. NRS 20 209.4465(8) provides: 21 8. Credits earned pursuant to this section by an offender who has not been 22 convicted of: 23 (a) Any crime that is punishable as a felony involving the use or threatened use of 24 force or violence against the victim; 25 (b) A sexual offense that is punishable as a felony; 26 (c) A violation of NRS 484C.110, 484C.120, 484C.130 or 484C.430 that is 27 punishable as a felony; or 28 (d) A category A or B felony, 2 by the sentence until the offender becomes eligible for parole and must be deducted from 3 the maximum term imposed by the sentence. 4 NRS 209.4465(8) (2007) (emphasis added). 5 At the same time that the statute was amended to add NRS 209.4465(8), NRS 6 209.4465(7) was amended to begin, “Except as otherwise provided in subsection 8.” 7 Thus, under the amended statute, category B felons (including attempted murderers) who 8 committed their offenses after the effective date of that amendment are not eligible to 9 have good time credits applied when determining their maximum terms or when 10 determining the minimum terms they are required to serve before being eligible for parole. 11 But, because of how NDOC officials were interpreting NRS 209.4465(7)(b), there 12 also were offenders, such as the petitioners in Vonseydewitz and Williams, who 13 unquestionably committed their crimes before the effective date of the amendment who 14 also were not having credits applied to their minimum eligibility parole dates, not because 15 of the amendment, but due to the way that prison officials were interpreting and applying 16 the limiting language in NRS 209.4465(7)(b), a statutory provision that was being applied 17 incorrectly but not retrospectively. In Vonseydewitz, the Nevada Supreme Court rejected 18 the petitioner’s claim that NDOC officials were retroactively applying NRS 209.4465(8) in 19 violation of the ex post facto clause. Vonseydewitz v. Legrand, Dkt No. 66159, 2015 WL 20 3936827 *3 (Nev. June 24, 2015) (unpublished). The Nevada Supreme Court found that 21 the responses to Plaintiff’s grievances showed that officials were not retroactively 22 applying NRS 209.4465(8) to deny the petitioner credits towards his parole eligibility date 23 but instead were misinterpreting and misapplying the exception in the limiting language 24 of NRS 209.4465(7)(b), which was in effect when he committed his offense.11 Id. 25 In the instant case, it may be that Plaintiff is alleging that he was not having any 26 good time credits applied to his sentence after the enactment of NRS 209.4465(8) 27 because NRS 209.4465(8) was applied to him even though he committed his crimes 28 2 Clause was violated, cites to NRS 209.4465(8), and refers to the exhibits attached to the 3 SAC. Merely amending the law is not a violation of the Ex Post Facto Clause. The new 4 law must be applied to him retrospectively by the defendant. Plaintiff does not allege any 5 facts that would show that Shelly Williams found Plaintiff ineligible to ever have good time 6 credits applied to his parole eligibility date because she applied NRS 209.4465(8) to him 7 and did not apply 209.4465(7)(b). In fact, Plaintiff appears to be alleging that she was 8 applying NRS 209.4465(7)(b) to him, but that she was applying it incorrectly, and he 9 alleges that NDOC officials refused to change this even after the Vonseydewitz decision 10 because Plaintiff did not yet have a court order comparable to the order Mr. Vonseydewitz 11 had. 12 Furthermore, although Plaintiff asserts that the exhibits to the SAC support his 13 claim, they do not. Nothing in the attachments to the SAC even mentions NRS 14 209.4465(8). Rather, the attachments support Plaintiff’s allegations that NRS 15 209.4465(7)(b), which was in effect at the time he committed his offenses, was applied to 16 him and that it was applied incorrectly. According to the exhibits, following the Nevada 17 Supreme Court’s published opinion in Williams concerning NRS 209.4465(7)(b), NDOC 18 officials conceded in a state court habeas proceeding filed by Plaintiff that Plaintiff’s 19 sentence must be recalculated in light of the Williams opinion (which did not involve any 20 ex post facto issues) and the proper interpretation of NRS 209.4465(7)(b), and Sherry 21 Williams submitted a document in that habeas case stating that Plaintiff’s parole eligibility 22 date had been adjusted. (ECF No. 26-1 at 5-15). There is nothing in the exhibits to 23 indicate that Sherry Williams refused to make the adjustment on the grounds that NRS 24 209.4465(8) applied to him and that NRS 209.4465(7)(b) did not and there is nothing that 25 to indicate that she ever applied NRS 209.4465(8) to him to find him ineligible to have 26 good time credits applied to his parole eligibility date for any period of time. Thus, there 27 12 It seems doubtful that such a claim could survive the Heck bar because the 28 retrospective application of NRS 209.4465(8) would affect not only Plaintiff’s minimum sentence but also his maximum sentence. The Court need not resolve this issue because 2 applied 209.4465(8) to find Plaintiff ineligible to have time credits applied to his parole 3 eligibility dates for any period of time. 4 In addition, Plaintiff appears to believe that because NRS 209.4465(8) was added 5 after he committed his offense, “the state” increased his punishment by eliminating his 6 good time credits. Although it is not clear, it may be that Plaintiff is alleging that he should 7 have received 20 good time credits for every month that he has been in prison but that 8 he received only ten good time credits for months prior to July1, 2007 as a result of NRS 9 209.4465(8). The exhibits to the SAC would support such a factual allegation. (See ECF 10 No. 26-1, at 17-20 showing increase in number of monthly statutory good time credits 11 from 10 to 20 beginning July 2007). The 2007 Nevada Legislature amended NRS 12 209.4465 to increase the amount of statutory good time credits that could be earned by 13 an offender, from 10 days per month to 20 days per month. 2007 Nev. Stat., ch. 525, § 14 5, at 3176. The Legislature also provided that, for offenders who had not been convicted 15 of the offenses listed in the newly adopted NRS 209.4465(8), this beneficial increase in 16 the number of credits would be applied retroactively to July 1, 2000. 2007 Nev. Stat., ch. 17 525, § 21, at 3196. Thus, Plaintiff, who alleges that he was convicted of attempted 18 murder, would not be eligible to have this benefit applied retroactively. See Wellington v. 19 State, 238 P.3d 865 at *1 (unpublished disposition). 20 However, to the extent Plaintiff is alleging that the failure to retroactively apply this 21 increase in good time credits was a violation of the Ex Post Facto Clause, he is incorrect.13 22 As discussed above, the Ex Post Facto Clause forbids the imposition of punishment more 23 severe than the punishment assigned by law when the act to be punished occurred. 24 Although Plaintiff may not have been treated as favorably as others with the increase in 25 the number of credits, his punishment after the amendment was not more severe than 26 the law that was in effect at the time he committed his offenses. Therefore, Plaintiff does 27 28 13 In addition, if the increase in the number of credits necessarily would affect both 2 claim is dismissed with prejudice, as amendment would be futile. 3 Accordingly, Plaintiff fails to state a colorable ex post facto claim. The Court 4 therefore dismisses this claim with prejudice, as amendment would be futile. 5 III. MOTION FOR APPOINTMENT OF COUNSEL 6 Like many prisoners, Plaintiff has limited library access and has filed a motion for 7 appointment of counsel. (ECF No. 25). Because the Court is dismissing this action, the 8 Court denies the motion as moot. 9 IV. CONCLUSION 10 It is therefore ordered that Plaintiff's application to proceed in forma pauperis (ECF 11 Nos. 4, 14) without having to prepay the full filing fee is granted. Plaintiff will not be 12 required to pay an initial installment fee. Nevertheless, the full filing fee will still be due, 13 pursuant to 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act. The 14 movant herein is permitted to maintain this action to conclusion without the necessity of 15 prepayment of fees or costs or the giving of security therefor. 16 It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the Prison 17 Litigation Reform Act, the Nevada Department of Corrections will forward payments from 18 the account of Ronald C. Williams, # 87832 to the Clerk of the United States District Court, 19 District of Nevada, 20% of the preceding month's deposits (in months that the account 20 exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk of 21 the Court will send a copy of this order to the Finance Division of the Clerk’s Office. The 22 Clerk will send a copy of this order to the attention of Chief of Inmate Services for the 23 Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 24 It is further ordered that, even if this action is dismissed, or is otherwise 25 unsuccessful, the full filing fee will still be due, pursuant to 28 U.S.C. §1915, as amended 26 by the Prison Litigation Reform Act. 27 It is further ordered that the operative complaint is the Second Amended Complaint 28 (ECF No. 26). 1 It is further ordered that the entire Second Amendment complaint is dismissed with 2 || prejudice, as amendment would be futile. 3 It is further ordered that the motion for appointment of counsel (ECF No. 25) is 4 || denied. 5 It is further ordered that this Court certifies that any in forma pauperis appeal from 6 || this order would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). 7 It is further ordered that the Clerk of the Court shall enter judgment accordingly 8 || and close this case. 9 DATED THIS 13 dayof August 2021. NN 10 LAC 11 1 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 954