Philip Galanti v. Ndoc

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILIP ROY GALANTI, No. 20-17332

Plaintiff-Appellant, D.C. No.

2:19-cv-01044-

v. GMN-EJY

NEVADA DEPARTMENT OF

CORRECTIONS; CLARK COUNTY OPINION

SCHOOL DISTRICT; JAMES

DZURENDA, Director; BRIAN

WILLIAMS, Warden, Warden;

MOORE, Caseworker; RITZ,

Caseworker; NASH, Associate

Warden; KIM PETERSON, NDOC

Administrator; J. CAVIN, School

Counselor; ROLAND; HOWELL,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

Gloria M. Navarro, District Judge, Presiding

Argued and Submitted March 28, 2023

San Francisco, California

Filed April 25, 2023

2 GALANTI V. NEVADA DEP’T OF CORRECTIONS

Before: MILAN D. SMITH, JR. and JOHN B. OWENS,

Circuit Judges, and XAVIER RODRIGUEZ, * District

Judge.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY **

Prisoner Civil Rights

The panel affirmed in part and reversed in part the

district court’s dismissal of an action brought pursuant to 42

U.S.C. § 1983 against the Nevada Department of

Corrections and several Department officials alleging that

they violated plaintiff’s constitutional rights by failing to

deduct education-credits he earned from his sentence, and

remanded.

While incarcerated, plaintiff completed several

education courses which entitled him to sentence deductions

under Nevada law. After he was released and his parole

ended, plaintiff sued, asserting that defendants’ failure to

apply earned credit-deductions to his sentence deprived him

of liberty without due process and denied him equal

protection of the law by targeting him for the denial of

credits because he is a sex offender.

*

The Honorable Xavier Rodriguez, United States District Judge for the

Western District of Texas, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GALANTI V. NEVADA DEP’T OF CORRECTIONS 3

The panel first rejected defendants’ argument that

plaintiff’s claims were barred by Heck v. Humphrey, 512

U.S. 477 (1994), because they necessarily implied that the

duration of his sentence was invalid. The panel held that

Heck did not apply in this case. Plaintiff was no longer in

custody and was thus unable to raise claims for credit-

deductions in a petition for habeas corpus. As such, this case

fell within the limited exception to Heck this court

recognized in Nonnette v. Small, 316 F.3d 872, 875–76 (9th

Cir. 2002).

The panel held that the district court erred by interpreting

plaintiff’s due process claim as asserting only a deprivation

of minimum-sentence deductions affecting his parole

eligibility date and ignoring his claim for maximum-

sentence deductions. Despite being instructed to brief the

issue, defendants did not respond to plaintiff’s argument that

Nev. Rev. Stat. § 209.4465 contains the mandatory language

necessary to create a constitutionally protected liberty

interest in maximum-sentence deductions, similar to good-

time statutes this court previously found to create liberty

interests. Accordingly, the panel reversed and remanded

with respect to plaintiff’s due process claim.

The panel affirmed the dismissal of the equal protection

claim because plaintiff had not alleged facts supporting

discrimination.

4 GALANTI V. NEVADA DEP’T OF CORRECTIONS

COUNSEL

Rizelle Dizon (argued) and Justine Chang, Certified Law

Students; Leah Spero, Gary A. Watt, and Stephen Tollafield,

Supervising Attorneys; University of California, Hasting

College of the Law, Hastings Appellate Project; San

Francisco, California; for Plaintiff-Appellant.

Sabrena K. Clinton (argued), Deputy Attorney General;

Gregory L. Zunino, Deputy Solicitor General; Frank A.

Toddre II, Senior Deputy Attorney General; D. Randall

Gilmer, Chief Deputy Attorney General; Aaron D. Ford,

Attorney General of Nevada; Office of the Nevada Attorney

General; Las Vegas, Nevada; Patrick J. Murch, McDonald

Carano LLP, Las Vegas, Nevada; for Defendants-Appellees.

OPINION

M. SMITH, Circuit Judge:

Philip Roy Galanti sued the Nevada Department of

Corrections (NDOC) and several NDOC officials pursuant

to 42 U.S.C. § 1983, claiming that they violated his

constitutional rights by failing to deduct education-credits he

earned from his sentence. Defendants argue that Galanti’s

claims are barred by Heck v. Humphrey, 512 U.S. 477

(1994), because they necessarily imply that the duration of

his sentence was invalid.

We hold that Heck does not apply in this case. Galanti

is no longer in custody and is thus unable to raise claims for

credit deductions in a petition for habeas corpus. As such,

GALANTI V. NEVADA DEP’T OF CORRECTIONS 5

this case falls within the limited exception to Heck we

recognized in Nonnette v. Small, 316 F.3d 872, 875–76 (9th

Cir. 2002). Because Heck does not bar this lawsuit, we

reverse and remand with respect to Galanti’s due process

claim, which the district court misconstrued as challenging

only the denial of credit-deductions from his parole date.

We affirm the dismissal of the equal protection claim, as

Galanti failed to allege discrimination.

BACKGROUND

Philip Roy Galanti is a former Nevada state prisoner.

While incarcerated, he completed several education courses,

which entitled him to sentence deductions under Nevada

law. He alleges that, with the deductions he earned from

obtaining his high school diploma and two vocational

certificates, his sentence should have expired on June 1,

2018. However, because NDOC officials did not apply the

deductions, his sentence did not expire until August 22,

2018.

After he was released and his parole ended, Galanti sued

NDOC and several NDOC officials pro se. In his First

Amended Complaint (FAC), Galanti raises two claims.

First, he asserts that Defendants’ failure to apply earned

credit-deductions to his sentence deprived him of liberty

without due process. Second, he claims Defendants denied

him equal protection of the law by targeting him for the

denial of credits because he is a sex offender. Galanti alleges

that NDOC officials failed to rectify the situation despite his

complaints while he was still incarcerated and complaints

from his mother. He further alleges they denied him access

6 GALANTI V. NEVADA DEP’T OF CORRECTIONS

to his credit and sentence reports, which prevented him from

verifying his credit calculations while incarcerated. 1

Defendants moved to dismiss, arguing that Galanti failed

to state any constitutional violations, Heck bars his claims,

qualified immunity shields the officer-defendants from

liability, and NDOC is not a proper party. The district court

granted the motion. Construing Galanti’s due process claim

as being based on the failure to apply credit-deductions to

his “minimum sentence,” or parole eligibility date, the

district court dismissed the claim with prejudice on the

ground that Nevada law does not create a constitutionally

protected liberty interest in parole. The court dismissed the

equal protection claim for failure to plead discrimination and

declined to reach the remaining issues.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review a decision on a motion to dismiss for failure to state

a claim de novo, accepting the allegations in the complaint

as true and viewing them in the light most favorable to the

plaintiff. Gonzalez v. Google LLC, 2 F.4th 871, 885 (9th Cir.

2021). Pro se pleadings are construed liberally. Thompson

v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

ANALYSIS

Although the district court did not reach the issue,

Defendants assert that all of Galanti’s claims are barred by

Heck because a judgment in his favor would necessarily

1

The FAC also contains an equal protection claim based on allegations

that Defendants awarded fewer discretionary credits to inmate students

compared to inmate workers, as well as Fourth, Fifth, and Eight

Amendment claims, which are not at issue in this appeal.

GALANTI V. NEVADA DEP’T OF CORRECTIONS 7

imply the invalidity of the duration of his sentence. Galanti

argues that his claims fall under an exception to Heck

recognized by our court in Nonnette because he is no longer

incarcerated and thus cannot bring his claim for credit

deductions in a habeas petition. Defendants contend that

Nonnette is inapplicable because Galanti did not timely

pursue habeas relief while in custody.

Apart from Heck, Galanti argues that the district court

misconstrued his due process claim as challenging the denial

of minimum-sentence deductions—in which he concedes

that he lacks a liberty interest—and ignored his interest in

maximum-sentence deductions. With respect to his equal

protection claim, Galanti argues that he sufficiently alleged

discrimination. Defendants endorse the district court’s

analysis of both claims. We address each argument in turn.

I. Heck v. Humphrey Does Not Bar Galanti’s Claims

In Heck, the Supreme Court held that to recover

damages pursuant to § 1983 for an unconstitutional

conviction or sentence, the plaintiff “must prove that the

conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called

into question by a federal court’s issuance of a writ of

habeas corpus.” 512 U.S. at 486–87. If a “judgment in

favor of the plaintiff would necessarily imply the invalidity

of his conviction or sentence” and that conviction or

sentence has not been invalidated, the claim is not

cognizable under § 1983. Id. at 487. The Court has since

clarified that the Heck rule applies to claims for

unconstitutional deprivation of good-time credits, if a

favorable judgment would imply the invalidity of such

8 GALANTI V. NEVADA DEP’T OF CORRECTIONS

deprivation. See Edwards v. Balisok, 520 U.S. 641, 648

(1997).

After Heck, five Justices in Spencer v. Kemna, 523 U.S.

1 (1998), “suggested that Heck’s scope might be narrower

than Heck itself indicated.” Lyall v. City of Los Angeles,

807 F.3d 1178, 1190 (9th Cir. 2015). The Court held that,

while an ex-prisoner’s habeas petition challenging his

underlying conviction does not become moot upon his

release due to the continuing consequences of a criminal

record, the petitioner’s challenge to his parole revocation

was mooted by his release from custody. See Spencer, 523

U.S. at 7–13. But five Justices noted that the petitioner

could bring such a claim under § 1983 without satisfying

Heck’s favorable-termination requirement, as “it would be

impossible as a matter of law for him to satisfy” that

requirement due to the unavailability of habeas relief. Id.

at 21 (Souter, J., concurring); see id. at 25 n.8 (Stevens, J.,

dissenting); see also Guerrero v. Gates, 442 F.3d 697, 704

(9th Cir. 2006) (“The Spencer concurrence suggests that a

plaintiff’s inability to pursue habeas relief after release from

incarceration should create an exception to Heck’s bar.”).

Then in Nonnette, we applied this reasoning in holding

that Heck did not preclude an ex-prisoner’s § 1983 claim

challenging denial of good-time credits because he could no

longer bring that claim in a habeas petition. See 316 F.3d

at 875–76. Nonnette filed his § 1983 suit while in custody,

alleging that prison officials miscalculated his sentence and

unlawfully revoked his credits. Id. at 874. The district

court dismissed pursuant to Heck because a judgment in

Nonnette’s favor would imply the invalidity of his sentence.

Id. After that decision was entered, he was released from

custody. Id. at 875. We reasoned that because Nonnette’s

release rendered habeas relief unavailable under Spencer,

GALANTI V. NEVADA DEP’T OF CORRECTIONS 9

his § 1983 action could be maintained. See id. at 875–76.

We also “emphasize[d] that [the] holding affects only

former prisoners challenging loss of good-time credits,

revocation of parole or similar matters”—not challenges to

underlying convictions, because ex-prisoners continue to be

able to challenge their underlying convictions in habeas

after their release. Id. at 878 n.7 (citing Spencer, 523 U.S.

at 7–12); see also Lyall, 807 F.3d at 1192 (holding that the

plaintiff’s claim “d[id] not come within the narrow

exception recognized in Spencer and Nonnette” because it

challenged his underlying conviction).

We have since recognized potential limits to Nonnette.

In Guerrero, we held that Heck barred the plaintiff’s § 1983

suit even though he was no longer in custody and habeas

relief was unavailable, distinguishing the case from

Nonnette on two grounds. See 442 F.3d 702–05. First,

Guerrero’s claims attacked his conviction, not “loss of

good-time credits, revocation of parole or similar matters,”

and thus they were plainly outside Nonnette’s purview. Id.

at 705 (quoting Nonnette, 316 F.3d at 878 n.7). Second,

Guerrero did not “timely pursue[] appropriate relief.” Id.

(emphasis added). We noted that the plaintiff in Nonnette

“immediately pursued relief after the incident giving rise to

[his] claims and could not seek habeas relief only because

of the shortness of his prison sentence.” Id. In contrast,

Guerrero waited three years to file suit, allowing the statute

of limitations on his habeas claim to expire. Id.; see 28

U.S.C. § 2244(d)(1) (establishing one-year deadline for

filing federal habeas corpus petitions). As such, “[h]is

failure to timely achieve habeas relief [wa]s self-imposed”

and not a reason for him to avoid the Heck bar. Guerrero,

442 F.3d at 705.

10 GALANTI V. NEVADA DEP’T OF CORRECTIONS

This case is much more like Nonnette than Guerrero.

First, Galanti challenges the deprivation of credit-

deductions, not his underlying sentence. Second, to the

extent that Guerrero imposes a diligence requirement on

§ 1983 plaintiffs under Nonnette, it does not bar Galanti’s

claim. Given the timeline Galanti alleges, he had little time

to obtain habeas relief. Galanti earned the credits at issue

on April 1, 2018, he was released on June 1, 2018, and his

parole expired on August 22, 2018, giving him only a few

months during which he could have filed a habeas petition.

And if his sentence expired during the pendency of his case,

which is very likely given the timeframe, it would have

been dismissed as moot. This differs from the situation in

Guerrero, in which the plaintiff allowed the habeas statute

of limitations to lapse and then attempted to “use his failure

to timely pursue habeas remedies as a shield against the

implications of Heck.” Id. at 705 (cleaned up). Moreover,

Galanti alleges that he made complaints and took other

efforts to rectify the situation while in custody, unlike

Guerrero, who waited years before taking “any action at

all.” Id. Accordingly, Heck does not bar this suit.

II. The District Court Erred by Ignoring Galanti’s

Due Process Claim for Maximum-Sentence

Deductions

The district court dismissed Galanti’s claims on grounds

other than Heck, which we now address. Galanti argues that

the court misconstrued his due process claim as asserting the

deprivation of deductions to his minimum sentence alone

and ignored his claim related to maximum-sentence

deductions. Nevada prisoners are generally sentenced to a

minimum term, after which they are eligible for parole, and

a maximum term, after which they are released if

incarcerated or their parole expires. See Nev. Rev. Stat.

GALANTI V. NEVADA DEP’T OF CORRECTIONS 11

§§ 213.120(2), 213.1215. The district court interpreted

Galanti’s FAC as asserting “that the NDOC Defendants

failed to apply the good-time credits that he earned by

attending educational classes to his parole eligibility date,”

or minimum sentence, “which extended his period of

incarceration without due process.” The court did not

consider whether Galanti stated a claim for deprivation of

maximum-sentence deductions.

Galanti now concedes that, to the extent his FAC asserts

a claim for minimum-sentence deductions, that claim fails

because Nevada prisoners do not have a liberty interest in

parole, see Moor v. Palmer, 603 F.3d 658, 661–62 (9th Cir.

2010), and he is not statutorily eligible for such deductions

in any event because he has been convicted of a felony sex

crime. 2 However, he argues that his FAC also contains a due

2

Under Nevada law, all prisoners are eligible for maximum-sentence

deductions, but those convicted of certain enumerated offenses including

felony sex crimes—like Galanti—are ineligible for minimum-sentence

deductions. See Nev. Rev. Stat. § 209.4465. The relevant provisions

provide that:

7. Except as otherwise provided in subsection[] 8 … credits earned

pursuant to this section:

(a) Must be deducted from the maximum term or the

maximum aggregate term imposed by the sentence, as

applicable; and

(b) Apply to eligibility for parole unless the offender

was sentenced pursuant to a statute which specifies a

minimum sentence that must be served before a person

becomes eligible for parole.

8. Credits earned pursuant to this section by an offender who

has not been convicted of:

12 GALANTI V. NEVADA DEP’T OF CORRECTIONS

process claim for deprivation of maximum-sentence

deductions, in which he has a liberty interest and for which

he was eligible, and the district court erred by ignoring that

claim.

Construed liberally, Galanti’s FAC contains a claim for

deprivation of maximum-sentence deductions. He alleges

that his sentence “should have expired on or about June 1st,

2018 [rather than August 22, 2018], and he should not have

had to be on parole for 2 months and bear costs associated

with it”—referencing his maximum sentence. In his

response to Defendants’ Motion to Dismiss, Galanti

continued to assert that he was entitled to deductions from

his “maximum term” and that his sentence should have

“expired” earlier. Moreover, throughout his filings, Galanti

referenced Nev. Rev. Stat. § 209.4465, which addresses both

types of deductions. Accordingly, the district court erred by

interpreting Galanti’s due process claim as asserting only

deprivation of minimum-sentence deductions and ignoring

his claim for maximum-sentence deductions.

Defendants’ remaining arguments related to due process

are premised on the district court’s erroneous interpretation

and do not address maximum-sentence deductions. Despite

being instructed by our court to brief the issue, Defendants

…

(b) A sexual offense that is punishable as a felony;

…,

apply to eligibility for parole and … must be deducted from the

minimum term or the minimum aggregate term imposed by the

sentence, as applicable, until the offender becomes eligible for

parole and must be deducted from the maximum term or the

maximum aggregate term imposed by the sentence, as applicable.

GALANTI V. NEVADA DEP’T OF CORRECTIONS 13

do not respond to Galanti’s argument that Nev. Rev. Stat.

§ 209.4465 contains the mandatory language necessary to

create a constitutionally protected liberty interest in

maximum-sentence deductions, similar to good-time

statutes we have previously found to create liberty interests.

See Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir. 1989)

(holding Washington statute creates liberty interest);

McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986)

(same for similar Arizona statute). Rather, Defendants argue

that Galanti did not have a liberty interest in parole, which

he does not dispute and is irrelevant to his maximum-

sentence claim in any event. 3 Similarly, Defendants argue

that Galanti is not statutorily eligible for deductions to his

parole date, which is neither disputed nor relevant. 4

Accordingly, we reverse and remand with respect to

Galanti’s due process claim.

III. Galanti Failed to State an Equal Protection Claim

Finally, Galanti claims that Defendants violated the

Equal Protection Clause by treating him less favorably with

respect to applying credit-deductions due to animus against

sex offenders. This claim fails because Galanti has not

alleged facts supporting discrimination. See Ariz. Dream Act

Coal. v. Brewer, 855 F.3d 957, 966 (9th Cir. 2017) (“To

prevail on an Equal Protection claim, plaintiffs must show

that a class that is similarly situated has been treated

disparately.” (cleaned up)). He asserts that Defendants did

3

Relatedly, Defendants argue that the officer-defendants are entitled to

qualified immunity because “Nevada law does not provide inmates with

a clearly established liberty interest in parole eligibility,” which is also

irrelevant to Galanti’s maximum-sentence deductions claim.

4

In their Supplemental Answering Brief, Defendants concede that

Galanti is eligible for maximum-sentence deductions.

14 GALANTI V. NEVADA DEP’T OF CORRECTIONS

not apply deductions to his sentence “in a manner equal to

the deductions given to various other inmate[s]” because

Defendants “‘hate’ sex offenders.” But this conclusory

statement does not support his claim. See Ventura

Mobilehome Comms. Owners Ass’n v. City of San

Buenaventura, 371 F.3d 1046, 1055 (9th Cir. 2004)

(affirming dismissal of equal protection claim because

“[a]side from conclusory allegations, Appellant has not . . .

alleged how [similarly situated individuals] are treated

differently”).

CONCLUSION

For these reasons, the district court’s decision granting

Defendants’ motion to dismiss is AFFIRMED in part,

REVERSED in part, and REMANDED. 5

5

In light of the issues in this case, the district court should carefully

consider appointing counsel for Galanti in future proceedings.