The opinion
FILED
NOT FOR PUBLICATION MAY 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES RAY DAVIS, No. 10-35827
Plaintiff - Appellant, D.C. No. 3:07-cv-00635-AC
v.
MEMORANDUM *
STATE OF OREGON; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted May 7, 2012
Portland, Oregon
Before: TASHIMA, TALLMAN, and IKUTA, Circuit Judges.
Even assuming that James Ray Davis’s § 1983 claims are not precluded by
the settlement agreement in Davis’s habeas action or Heck v. Humphrey, 512 U.S.
477 (1994), such claims fail because Davis does not raise a genuine issue of
material fact that his constitutional rights were violated. Davis fails to raise a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
genuine issue of material fact that the appellees knew that his presentence
incarceration credits had been improperly calculated or were deliberately
indifferent to a risk of miscalculation, as needed to show a violation of his Eighth
Amendment rights. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Haygood v.
Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). Davis also fails to raise a
genuine issue of material fact that the appellees investigated his complaints
inadequately or deprived him of an opportunity to be heard in violation of his
Fourteenth Amendment due process rights. Cf. Alexander v. Perrill, 916 F.2d
1392, 1398 (9th Cir. 1990); Haygood, 769 F.2d at 1357. The calculation of
Davis’s sentence involved only an application of state law to undisputed facts, and
thus did not trigger a duty to conduct an investigation into disputed facts as in
Alexander. See Alston v. Read, 663 F.3d 1094, 1099 (9th Cir. 2011). And, unlike
in Haygood, the appellees were acting according to Oregon Department of
Corrections policies that had been developed in consultation with outside counsel.
Additional process would not have achieved anything because each side’s position
was clear.
Moreover, given the circumstances of the sentence calculation dispute,
including the fact that legal counsel assisted in drafting the policy, even assuming
that a constitutional violation can be established, the law was not clearly
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established and, thus, appellees would be entitled to qualified immunity in any
event. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (noting that an
official’s conduct violates clearly established law only when “the contours of a
right are sufficiently clear that every reasonable official would have understood
that what he is doing violates that right” (internal markings omitted)).
AFFIRMED.
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