Enoma Igbinovia v. James Dzurenda

NOT FOR PUBLICATION FILED
NOV 18 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENOMA IGBINOVIA, No. 20-16259
Plaintiff-Appellant, D.C. No. 2:19-cv-00588-RFB-VCF
v.
MEMORANDUM*
JAMES DZURENDA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Former Nevada state prisoner Enoma Igbinovia appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
constitutional violations arising from a failure to apply statutory good time and
work/education credits to his minimum and maximum sentences. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to
state a claim under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Byrd v. Maricopa
County Bd. of Supervisors, 845 F.3d 919, 922 (9th Cir. 2017); Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm in part, vacate
in part, and remand.
The district court properly dismissed without prejudice Igbinovia’s equal
protection, retaliation, and Ex Post Facto Clause claims because Igbinovia failed to
allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338,
341-42 (9th Cir. 2010) (although pro se pleadings are liberally construed, a
plaintiff must allege facts sufficient to state a plausible claim); see also Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (elements of an
equal protection “class of one” claim); Lynce v. Mathis, 519 U.S. 433, 441 (1997)
(to fall within ex post facto prohibition, a law must be retrospective and must
disadvantage the offender affected by it by increasing his punishment); Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (elements of a First Amendment
retaliation claim in the prison context).
The district court properly dismissed with prejudice Igbinovia’s due process
and Eighth Amendment claims based on deprivation of parole eligibility because
Igbinovia possessed no constitutionally protected liberty interest in parole
eligibility in Nevada. See Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983) (if a
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substantive interest is left to the state’s unfettered discretion, then state statutes
creating formal procedures surrounding that discretion do not create a liberty
interest); Moor v. Palmer, 603 F.3d 658, 661-62 (9th Cir. 2010) (Nevada law does
not create liberty interest in parole).
However, to the extent that the district court dismissed Igbinovia’s due
process and Eighth Amendment claims challenging the statutory deductions to his
maximum sentences on the ground that they were barred under Wilkinson v.
Dotson, 544 U.S. 74, 78 (2005), we vacate the judgment on these claims because
the record shows that Igbinovia is no longer in prison, and thus habeas relief may
no longer be available to him. We remand for consideration in light of our
decision in Nonnette v. Small, 316 F.3d 872, 877, 878 n.7 (9th Cir. 2002) (holding
that plaintiff could proceed with § 1983 action because habeas relief was no longer
available).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED in part, VACATED in part, and REMANDED.
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