Petition for Writ of Certiorari — Nevada Department of Corrections, et al., Petitioners v. Philip Roy Galanti

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Ninth Circuit

(April 25, 2023) . . . . . . . . . . . . . . . App. 1

Appendix B Order in the United States District

Court for the District of Nevada

(October 27, 2020) . . . . . . . . . . . . App. 16

Appendix C Judgment in a Civil Case in the

United States District Court for the

District of Nevada

(October 28, 2020) . . . . . . . . . . . . App. 25

App. 1

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 20-17332

D.C. No. 2:19-cv-01044-GMN-EJY

[Filed April 25, 2023]

____________________________________

PHILIP ROY GALANTI,

)

Plaintiff-Appellant,

)

)

v.

)

)

NEVADA DEPARTMENT OF

)

CORRECTIONS; CLARK COUNTY )

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.

)

___________________________________ )

App. 2

OPINION

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

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

*

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.

App. 3

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 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.

App. 4

The panel affirmed the dismissal of the equal

protection claim because plaintiff had not alleged facts

supporting discrimination.

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.

App. 5

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, 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

App. 6

was still incarcerated and complaints from his mother.

He further alleges they denied him access 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

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.

App. 7

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 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

App. 8

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 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.”).

App. 9

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, 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

App. 10

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.

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

App. 11

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.

§§ 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

App. 12

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 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.

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:

…

(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.

App. 13

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 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

App. 14

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 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

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.

App. 15

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.

App. 16

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Case No.: 2:19-cv-01044-GMN-EJY

[Filed October 27, 2020]

___________________________

PHILIP ROY GALANTI,

)

Plaintiff,

)

)

vs.

)

)

NEVADA DEPT. OF

)

CORRECTIONS, et al.,

)

Defendants.

)

__________________________ )

ORDER

Pending before the Court is the Motion to Dismiss,

(ECF No. 22), filed by Defendants Nevada Department

of Corrections (“NDOC”), James Dzurenda, Brian

Williams, Alessia Moore, Jennifer Nash, Kim Peterson,

and Anthony Ritz, (collectively, “NDOC Defendants”).

Pro se Plaintiff Philip Roy Galanti (“Plaintiff”) filed a

Response, (ECF No. 30), and the NDOC Defendants

filed a Reply, (ECF No. 31).

Also pending before the Court is Defendant Clark

County School District’s (“CCSD’s”) Motion to Dismiss,

(ECF No. 24). Plaintiff did not file a Response.

App. 17

Also pending before the Court is Plaintiff’s Motion

for Ruling, (ECF No. 34), on NDOC Defendants’ Motion

to Dismiss.

Also pending before the Court is NDOC Defendants’

Motion to Stay Discovery, (ECF No. 44).

For the reasons discussed below, the Court

GRANTS the NDOC Defendants’ Motion to Dismiss,

GRANTS CCSD’s Motion to Dismiss, and DENIES

Plaintiff’s Motion for Ruling and NDOC Defendants’

Motion to Stay Discovery as moot.

I.

BACKGROUND

This is a civil rights case arising under 42 U.S.C.

§ 1983 with Plaintiff alleging that Defendants unduly

delayed his release on parole and extended his sentence

in violation of his constitutional rights. (See generally

First Am. Compl. (“FAC”), ECF No. 21). Plaintiff was

formerly an inmate at High Desert State Prison

(“HDSP”) who was paroled on June 1, 2018. (FAC at 1,

10). Plaintiff commenced this action on June 18, 2019,

alleging violations of his Fourteenth Amendment due

process and equal protection rights, as well as Fourth,

Fifth, and Eighth Amendment claims against the

NDOC, CCSD, NDOC Director James Dzurenda,

Warden Brian Williams, Associate Warden Jennifer

Nash, NDOC Administrator Kim Peterson, and HDSP

caseworkers Alessia Moore and Anthony Ritz,

(collectively, “Defendants”). (Compl. at 2–3, 6–8, ECF

No. 1). On December 19, 2019, Plaintiff filed his First

Amended Complaint, alleging the same. (See generally

FAC).

App. 18

In his First Amended Complaint, Plaintiff claims

that Defendants failed to apply the good-time education

credits that he earned pursuant to NRS 209.4465 to his

minimum sentence and parole eligibility dates,

resulting in an extended period of incarceration. (Id.).

Plaintiff calculates that he is owed “approximately

40 days” under NRS 209.4465(2), which awards

“10 days of credit each month for an offender whose

diligence in labor and study merits such credit.” (Id. at

8). Plaintiff claims an additional 150 days, supposedly

under NRS 209.4465(2)(a)–(b), for receiving his high

school diploma and completing a vocational course. See

NRS 209.4465(2)(a)–(b) (awarding offenders 90 days of

good time credits for receiving their high school

diploma, and 60 days for vocational courses); (Id. at 6).

Therefore, Plaintiff asserts that he should have been

released on parole around April 10, 2018, and that his

sentence should have expired on June 1, 2018. (Id. at

6). Instead he was paroled on June 1, 2018, and his

sentence expired in August of 2018. (Id. at 10).

II.

LEGAL STANDARD

Dismissal is appropriate under Federal Rule of Civil

Procedure 12(b)(6) where a pleader fails to state a

claim upon which relief can be granted. Fed. R. Civ.

P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007). A pleading must give fair notice of a legally

cognizable claim and the grounds on which it rests, and

although a court must take all factual allegations as

true, legal conclusions couched as a factual allegations

are insufficient. Twombly, 550 U.S. at 555. Accordingly,

Rule 12(b)(6) requires “more than labels and

conclusions, and a formulaic recitation of the elements

App. 19

of a cause of action will not do.” Id. “To survive a

motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at

570). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. This standard “asks for more

than a sheer possibility that a defendant has acted

unlawfully.” Id.

If the court grants a motion to dismiss for failure to

state a claim, leave to amend should be granted unless

it is clear that the deficiencies of the complaint cannot

be cured by amendment. DeSoto v. Yellow Freight Sys.,

Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant to

Rule 15(a), the court should “freely” give leave to

amend “when justice so requires,” and in the absence of

a reason such as “undue delay, bad faith or dilatory

motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of

allowance of the amendment, futility of the

amendment, etc.” Foman v. Davis, 371 U.S. 178, 182

(1962).

III.

DISCUSSION

In their Motion to Dismiss, the NDOC Defendants

allege that Plaintiff fails to state a claim upon which

relief can be granted. (NDOC Mot. Dismiss (“NDOC

MTD”) 1:24, ECF No. 22). The NDOC Defendants

assert several reasons for dismissal, such as: Plaintiff

cannot sue the NDOC or the NDOC Defendants in

App. 20

their official capacity for damages under 42 U.S.C.

§ 1983, Plaintiff’s claims are barred by Heck v.

Humphry, 512 U.S. 477 (1994), and Plaintiff failed to

state Fourteenth Amendment due process and equal

protection claims under Fed. R. Civ. P. 12(b)(6). (NDOC

MTD 3:18 –19, 4:1–2, 4:14, 5:20, 6:8). In its Motion,

CCSD incorporates the arguments in the NDOC

Defendants’ Motion and further claims that CCSD has

no authority over the application of education credits to

Plaintiff’s sentence or his alleged extended

incarceration. (See generally CCSD Mot. Dismiss

“CCSD MTD,” ECF No. 24). The Court first addresses

whether Plaintiff’s allegations can support a

Fourteenth Amendment claim.

A. Due Process

Plaintiff claims that the NDOC Defendants failed to

apply the good-time credits that he earned by attending

educational classes to his parole eligibility date, which

extended his period of incarceration without due

process. (FAC at 5–6). To state a Fourteenth

Amendment due process claim, a plaintiff must

adequately allege that he was denied a specific liberty

interest and that he was deprived of that liberty

interest without the constitutionally required

procedures. See Swarthout v. Cooke, 562 U.S. 216, 219

(2011). Allegations that a defendant misapplied state

law are not sufficient to state a claim for violating the

Fourteenth Amendment’s due process clause. Id. at 222

(holding that a “mere error of state law is not a denial

of due process”).

In Nevada, state prisoners do not have a liberty

interest in parole or parole eligibility. See Moor v.

App. 21

Palmer, 603 F.3d 658, 661–62 (9th Cir. 2010);

Fernandez v. Nevada, No. 3:06-CV-00628-LRH-RAM,

2009 WL 700662, at *10 (D. Nev. June 4, 2012).

Additionally, there is no liberty interest in prison

education or rehabilitation classes. See Hernandez v.

Johnson, 833 F.2d 1316, 1319 (9th Cir. 1987). Plaintiff

bases his due process claim on the fact that Defendants

failed to apply good-time education credits to his parole

eligibility date. (FAC at 5–6). As such, the Court finds

that Plaintiff fails to state a colorable due process claim

because he does not claim the deprivation of a liberty

interest. Further, Defendants alleged failure to comply

with NRS 209.4465 is an error of state law, and thus

cannot be the proper basis for a due process claim. See

Young v. Williams, No. 2:11-CV-01532-KJD, 2012 WL

1984968, at *3 (D. Nev. June 4, 2012) (holding that

alleged error in applying good-time credits was an error

of state law that did not constitute a due process

violation). Therefore, the Court dismisses Plaintiff’s

due process claim with prejudice.

B. Equal Protection

To assert his equal protection claim, Plaintiff

alleges that the NDOC Defendants treat inmate

workers and inmate students differently because

inmate workers received “10 days of sentence

reductions whether they had worked 1 day or 20 days,”

but inmate students only received “2 to 10 days per

month served and [were] given nothing for education

break periods.” (FAC at 5). Plaintiff further alleges that

his good-time credits were not applied properly because

he is a felon and a sex-offender. (Id. at 10).

App. 22

The Equal Protection Clause of the Fourteenth

Amendment requires a state to treat all similarly

situated people equally. See City of Cleburne v.

Cleburne Living Center, 473 U.S. 432, 439 (1985).

Where an inmate is not a member of a protected class,

an equal protection claim is subject to the rational

basis test. See McGinnis v. Royster, 410 U.S. 263, 270

(1973) (applying rational basis test where state law

denied certain state prisoners good-time credit toward

parole eligibility for the period of their presentence

county jail incarceration, whereas those released on

bail prior to sentencing received good-time credit for

the entire period of their prison confinement). Under a

rational basis inquiry, in order to prevail on an equal

protection claim, a plaintiff must demonstrate that

(1) he is similarly situated to others, (2) he is being

treated worse than others with whom he is similarly

situated, and (3) there is no rational basis for the

disparate treatment. More v. Farrier, 984 F.2d 269, 271

(8th Cir. 1993).

Plaintiff’s equal protection claim is based on the

alleged disparate treatment between inmate workers

and inmate students. (See FAC at 10–12). However,

inmate workers and students are not similarly

situated. For example, NRS 209.4465 treats inmate

workers and students differently for purposes of

awarding good-time credits. Under the statute, inmate

students are able to earn a lump-sum amount of credits

for completing certain educational milestones, such as

receiving a high school diploma, in addition to earning

a possible ten credits each month for study time;

inmate workers are only entitled to ten credits each

month for work time. See NRS 209.4465(2). Further,

App. 23

prison workers and students have different

responsibilities and assignments. Workers perform

prison maintenance and services by staffing positions

in the laundry, kitchen, etc., while inmate students

attend educational classes. (Resp. at 7–8, ECF No. 30).

Accordingly, inmate workers and students are not

similarly situated. While Plaintiff is similarly situated

to other inmate students, he has neither provided

evidence that he is being treated differently than them,

nor alleged that the differential treatment between

workers and students under NRS 209.4465 is facially

unconstitutional.

Further, with regards to Plaintiff’s claims of

discrimination based on his status as a felon and sexoffender, Plaintiff provides no factual allegations to

demonstrate that any other inmates were similarly

situated to Plaintiff as felon sex-offenders.1 Thus, the

Court dismisses Plaintiff’s equal protection claims

without prejudice.

1

The Court also acknowledges that NRS 209.4465(8) itself lawfully

discriminates against certain felonies committed after July 1,

2007, such as Class A and B offenses or sexual or violent offenses

punishable by felony. See Vickers v. Dzurenda, 433 P.3d 306 (Nev.

App. 2018), (holding that NRS 209.4465(8) does not violate the

equal protection clause by excluding certain offenders from

applying their good-time credits to parole eligibility and minimum

sentences). Good time credits are not applied to the parole

eligibility dates or minimum sentences for these types of offenders.

See NRS § 209.4465(8). Plaintiff does not allege his underlying

offense, only that he is a sex-offender. (FAC at 10). However,

depending on the underlying offense, it is possible that Plaintiff

was not eligible to receive good-time credits by statute.

App. 24

C. Plaintiff’s Fourth, Fifth, and Eighth

Amendment Claims

In his Response to Defendants’ Motions to Dismiss,

Plaintiff “agree[s] with the Defendants that the Fourth

and Fifth Amendments do not apply to [his] situation”

and “agrees to dismiss the 8th Amendment claim.”

Therefore, the Court dismisses Plaintiff’s Fourth, Fifth,

and Eighth Amendment claims with prejudice.

IV.

CONCLUSION

IT IS HEREBY ORDERED that Defendants’

Motions to Dismiss, (ECF Nos. 22, 24), are GRANTED.

IT IS FURTHER ORDERED that Plaintiff’s

Motion for Ruling, (ECF No. 34), in DENIED as moot.

IT IS FURTHER ORDERED that NDOC

Defendants’ Motion to Stay Discovery, (ECF No. 44), is

DENIED as moot.

DATED this 27 day of October, 2020.

/s/ Gloria M. Navarro

Gloria M. Navarro, District Judge

United States District Court

App. 25

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Case Number: 2:19-cv-01044-GMN-EJY

[Filed October 28, 2020]

_________________________________

Philip Roy Galanti

)

Plaintiff,

)

)

v.

)

)

Nevada Dept of Corrections, et al., )

Defendants.

)

________________________________ )

JUDGMENT IN A CIVIL CASE

___

Jury Verdict. This action came before the

Court for a trial by jury. The issues have been

tried and the jury has rendered its verdict.

___

Decision by Court. This action came to trial or

hearing before the Court. The issues have been

tried or heard and a decision has been rendered.

X

Decision by Court. This action came for

consideration before the Court. The issues have

been considered and a decision has been

rendered.

App. 26

IT IS ORDERED AND ADJUDGED

pursuant to the Order Granting the Motions to

Dismiss, this matter is now closed. Judgment is

entered for Defendants.

10/28/2020

Date

DEBRA K. KEMPI

Clerk

[SEAL]

/s/ D. Reich-Smith

Deputy Clerk