United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NOS. 29, 39
William G. Cobb United States Magistrate Judge.
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. The action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
the court is Defendants' Motion for Summary Judgment.
(ECF Nos. 29, 29-1 to 29-8.) Plaintiff filed a response and
Motion for Partial Summary Judgment. (ECF Nos. 37, 38, 38-1
to 38-9, 39, 40, 40-1 to 40-9). Defendants filed a reply in
support of their motion (ECF No. 41) and response to
Plaintiff's motion (ECF No. 42). Plaintiff filed a reply
in support of his motion. (ECF No. 43.)
thorough review, it is recommended that Defendants'
motion be granted, and Plaintiff's motion be denied.
is an inmate in the custody of the Nevada Department of
Corrections (NDOC). He is represented by counsel Mark Wray,
Esq., and is proceeding with this action pursuant to 42
U.S.C. § 1983. (Am. Compl., ECF No. 9.) The events
giving rise to this action took place while Plaintiff was
housed at Lovelock Correctional Center (LCC). (Id.)
Defendants are Deputy Director Dwayne Deal, Associate Warden
William Sandie and Correctional Caseworker Colette
Stammerjohn. On screening, Plaintiff was allowed to proceed
with due process claims that Defendants failed to properly
calculated his statutory credits under Nevada Revised Statute
(NRS) 209.4465 and the 2007 amendments from Assembly Bill
(AB) 510 and case law interpreting the statute. Plaintiff was
convicted under two criminal counts and was sentenced under
each to a term of imprisonment of 60 to 80 months, to run
consecutively. Plaintiff alleges that as a result of the
failure to properly calculate his statutory credits he was
imprisoned for an extra 85 days as to Count 1, and his parole
eligibility deadline should have been advanced as to Count 2.
Plaintiff alleges that he is not seeking restoration of
statutory time credits but does seek monetary damages for the
alleged constitutional violation.
move for summary judgment, arguing: (1) Plaintiff's claim
is Heck barred as he failed to obtain favorable
termination in a proceeding that would have shown he was
entitled to 85 credits applied to his first consecutive
sentence; (2) to the extent he alleges he was denied credits
applied to the front-end of his second consecutive sentence,
no state law authority clearly entitled prisoners to a
front-end application of credits in the parole-eligibility
context until late 2017, and no known court order entitled
Plaintiff to a recalculation until early 2018, which prison
officials timely complied with; (3) Plaintiff did not sustain
a cognizable injury because his allegations that he could
have been granted parole had he been seen by the board
earlier are speculative (he was seen by the parole board soon
after his credit recalculation for the front-end of his
second consecutive sentence and was denied parole); (4) Deal,
Sandie and Stammerjohn did not personally participate in the
constitutional violation because Sandie and Stammerjohn were
merely responding to Plaintiff's grievances and Deal was
not on notice of the need to recalculate Plaintiff's
credits until late 2017, and could not have been on notice of
Plaintiff's specific entitlement to recalculation until
early 2018; and (5) Defendants are entitled to qualified
immunity because Defendants were not on clear notice that
their actions violated Plaintiff's constitutional rights.
partial motion for summary judgment, Plaintiff asks the court
to enter partial summary judgment in his favor as to
liability because Defendants held him in custody on Count 1
of his sentence beyond the expiration of his sentence when
they refused to extend him statutory credits, and then
refused to extend proper statutory credits as to count 2 of
his sentence, depriving him of having his parole eligibility
date advanced and to parole hearings.
legal standard governing this motion is well settled: a party
is entitled to summary judgment when “the movant shows
that there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Cartrett, 477 U.S. 317, 330 (1986) (citing Fed.R.Civ.P.
56(c)). An issue is “genuine” if the evidence
would permit a reasonable jury to return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). A fact is “material” if
it could affect the outcome of the case. Id. at 248
(disputes over facts that might affect the outcome will
preclude summary judgment, but factual disputes which are
irrelevant or unnecessary are not considered). On the other
hand, where reasonable minds could differ on the material
facts at issue, summary judgment is not appropriate.
Anderson, 477 U.S. at 250.
purpose of summary judgment is to avoid unnecessary trials
when there is no dispute as to the facts before the
court.” Northwest Motorcycle Ass'n v. U.S.
Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994)
(citation omitted); see also Celotex, 477 U.S. at
323-24 (purpose of summary judgment is "to isolate and
dispose of factually unsupported claims");
Anderson, 477 U.S. at 252 (purpose of summary
judgment is to determine whether a case "is so one-sided
that one party must prevail as a matter of law"). In
considering a motion for summary judgment, all reasonable
inferences are drawn in the light most favorable to the
non-moving party. In re Slatkin, 525 F.3d 805, 810
(9th Cir. 2008) (citation omitted); Kaiser Cement Corp.
v. Fischbach & Moore Inc., 793 F.2d 1100, 1103 (9th
Cir. 1986). That being said, "if the evidence of the
nonmoving party "is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at
249-250 (citations omitted). The court's function is not
to weigh the evidence and determine the truth or to make
credibility determinations. Celotex, 477 U.S. at
249, 255; Anderson, 477 U.S. at 249.
deciding a motion for summary judgment, the court applies a
burden-shifting analysis. “When the party moving for
summary judgment would bear the burden of proof at trial,
‘it must come forward with evidence which would entitle
it to a directed verdict if the evidence went uncontroverted
at trial.'… In such a case, the moving party has
the initial burden of establishing the absence of a genuine
[dispute] of fact on each issue material to its case.”
C.A.R. Transp. Brokerage Co. v. Darden Rest., Inc.,
213 F.3d 474, 480 (9th Cir. 2000) (internal citations
omitted). In contrast, when the nonmoving party bears the
burden of proving the claim or defense, the moving party can
meet its burden in two ways: (1) by presenting evidence to
negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party cannot
establish an element essential to that party's case on
which that party will have the burden of proof at trial.
See Celotex Corp. v. Cartrett, 477 U.S. 317, 323-25
moving party satisfies its initial burden, the burden shifts
to the opposing party to establish that a genuine dispute
exists as to a material fact. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
opposing party need not establish a genuine dispute of
material fact conclusively in its favor. It is sufficient
that “the claimed factual dispute be shown to require a
jury or judge to resolve the parties' differing versions
of truth at trial.” T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987) (quotation marks and citation omitted). The nonmoving
party cannot avoid summary judgment by relying solely on
conclusory allegations that are unsupported by factual data.
Matsushita, 475 U.S. at 587. Instead, the opposition
must go beyond the assertions and allegations of the
pleadings and set forth specific facts by producing competent
evidence that shows a genuine dispute of material fact for
trial. Celotex, 477 U.S. at 324.
material facts are not in dispute.
offense date was in 2004. He was arrested on October 18,
2006, and has been in custody ever since (within NDOC since
2007 legislative session, AB 510, codified as amendments to
NRS 209.4465, was enacted into law. It is titled:
"Credits for offenders sentenced for crime committed on
or after July 17, 1997." As amended NRS 209.4465(1)
increased the statutory time credits for an offender
sentenced to prison for a crime committed on or after July
17, 1997 (and who does not have a serious infraction and has
performed the duties assigned in a faithful, orderly and
peaceable manner) from 10 days for each month served to 20
days for each month served. Section 7 provides: "Except
as otherwise provided in subsections 8 and 9, 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 sentence pursuant to a statute
which specifies a minimum sentence that must be served before
a person becomes eligible for parole."
11, 2009, Plaintiff was sentenced to 60 to 80 months for
Count 1 (first degree kidnapping) and 60 to 80 months for
Count 2 (robbery), to run consecutively.
April 26, 2014, Plaintiff discharged the term of
incarceration imposed under Count 1 and began serving his
consecutive term under Count 2.
December 2, 2015, Plaintiff obtained a copy of his
"Credit History by Sentence." At that point, he
noticed that his sentence for Count 1 had been credited for
10 days of statutory credits from October 17, 2006 through
June 30, 2007, for a total of 85 days. Plaintiff contends
that he should have been credited for 20 days of statutory
credit for each month served, for a total of 170 statutory
credits. He maintains he had no serious infraction and
performed his duties as a prisoner in a faithful, orderly and
peaceable manner, and so is entitled to the statutory credits
in NRS 209.4465(1).
April 11, 2016, Plaintiff sent a letter to the timekeeper at
NDOC asking that he be given his 85 days in credits toward
his first sentence under Vonseydewitz v. Warden, No.
66159, 2015 WL 3936827 (Nev. June 24, 2015); that the start
date of his second sentence be adjusted accordingly; and,
that the statutory credits also be deducted for the second
sentence for his parole eligibility date. (ECF No. 29-3 at
16-18.) NDOC's Offender Management Division (OMD) sent
him a form letter in response on April 18, 2016, stating that
the unpublished Vonseydewitz ...