Chaziza v. Stammerjohn

[2] 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 AHUD CHAZIZA, Case No. 3:17-cv-00247-MMD-WGC 7 Plaintiff, ORDER ACCEPTING AND ADOPTING v. REPORT AND RECOMMENDATION 8 OF MAGISTRATE JUDGE STAMMERJOHN, et al., WILLIAM G. COBB [9] Defendants. [10] 11 I. SUMMARY 12 Plaintiff Ahud Chaziza, who is an incarcerated person and represented by counsel, 13 brought this civil rights action under 42 U.S.C. § 1983 . Before the Court is the Report and 14 Recommendation of United States Magistrate Judge William G. Cobb (“R&R”), 15 recommending that the Court grant Defendants’1 motion for summary judgment (ECF No. 16 29) and deny Plaintiff’s motion for partial summary judgment (ECF No. 39). (ECF No. 44.) 17 Plaintiff has filed an objection (“Objection”) (ECF No. 45) and Defendants responded (ECF 18 No. 46). The Court overrules Plaintiff’s Objection and adopts the R&R.2 19 II. BACKGROUND 20 Plaintiff is an inmate in custody of the Nevada Department of Corrections (“NDOC”). 21 The events giving rise to this case occurred while Plaintiff was housed at Lovelock 22 Correctional Center (“LCC”). (ECF No. 9.) 23 On screening Plaintiff was allowed to proceed on two claims (Counts I and II) for 24 alleged violations of his due process rights under the Fourteenth Amendment. (ECF No. 25 /// 26 1Defendants are Deputy Dwayne Deal, Associate Warden William Sandie and Correctional Caseworker Colette Stammerjohn. [27] 2In addition to the R&R, the Court has considered the parties’ briefs (ECF Nos. 29, 28 33, 37 (substantive duplicate of ECF No. 33), 39 (substantive duplicate of ECF Nos. 33 and 37), 41, 42, 43) and accompanying exhibits. 2 to properly calculate his statutory credits under NRS § 209.4465, and the 2007 3 amendments—Assembly Bill (“A.B.”) 510—as well as case law interpreting the statute. 4 (ECF No. 8 at 4–5; ECF No. 9 at 3–14.) His claims pertain to his underlying sentences. As 5 to his first sentence, Plaintiff essentially contends that he should have received an 6 additional 85 days of statutory credits under NRS § 209.4465 and thus his date of release 7 was accordingly extended beyond expiration of his term in violation of the Fourteenth 8 Amendment (Count I). (ECF No. 9 at 3, 9.) As to his second sentence, Plaintiff asserts 9 that his parole eligibility deadline should have been advanced on the front-end resulting in 10 an earlier parole eligibility date (Count II). (E.g., id. at 14.) He seeks monetary damages. 11 (Id. at 17.) 12 Relevantly, it is undisputed that Plaintiff was arrested and has been in custody since 13 October 18, 2006. (ECF No. 39 at 2.) In May 2009, Plaintiff was sentenced to 60 to 180 14 months for count 1—first degree kidnapping and a consecutive term of the same for count 15 2—robbery. (ECF No. 38-3 at 3.) On April 26, 2014, Plaintiff was discharged from the term 16 imposed under count 1 and began serving his term under count 2. (Id.) 17 In December 2015, Plaintiff obtained a copy of his “Credit History by Sentence” and 18 noticed that he had been credited for 10 days of statutory credits from October 17, 2006 19 through June 30, 2007, for a total of 85 days, instead of 170 statutory credits to which he 20 believed he was entitled under A.B. 510.3 (ECF No. 39 at 3 (making statement about 21 obtaining copy which is not disputed).) Plaintiff filed various grievances regarding the 22 application of his statutory credits in 2016 and 2017 to which Defendants responded. (ECF 23 No. 29-4; ECF No. 38 at 3–5.) 24 Plaintiff first sought habeas relief in the Eleventh Judicial District Court of the State 25 of Nevada in and for the County of Pershing (“State Court”) in June 2016 regarding the 26 /// [27] 3Cf. 2007 Nev. Stat., ch. 525, § 20, at 3196, 2007 Leg., 74th Sess. (Nev. 2007) 28 (“This section and sections 1 to 19, inclusive, and 21 of this act become effective on July 1, 2007.”). 2 gist stated the same two claims in this action. There, Plaintiff contended that NDOC 3 violated, inter alia, his Fourteenth Amendment rights because it did not apply the full 4 amount of statutory credits earned under NRS § 209.4465 to his first sentence. (ECF No. 5 38-3 at 2.) He additionally asserted that NDOC violated, inter alia, his Fourteenth 6 Amendment rights because “it has not deducted the statutory credits earned from the 7 minimums of his terms of imprisonment pursuant to NRS [§] 209.4465(7)(b).” (Id. at 3.) 8 The State Court denied Plaintiff’s habeas petition in its entirety on September 19, 2017. 9 (See generally ECF No. 38-3.) The court concluded that there was no controversy as to 10 count 1 because Plaintiff’s term as to that count had expired. (Id. at 4 (also citing Johnson 11 v. Dir. Dep’t Prisons, 774 P.2d 1047, 1049 (Nev. 1989) for the proposition that “when 12 [Petitioner] expired his sentence[], any question as to the method of computing th[at] 13 sentence[] was rendered moot”). ) The State Court also rejected Plaintiff’s contention— 14 which he makes in this case4—that pursuant to Garlotte v. Fordice, 515 U.S. 39 (1995), 15 he is still in custody as to count 1 because he is serving consecutive terms. (Id. at 4–5.) 16 Concerning count 2, the State Court concluded that Plaintiff was not entitled to the 17 application of statutory credits towards his minimum term of incarceration under the 18 version of NRS § 209.4465(7)(b) applicable at the time of his crime because he was 19 convicted of a category B felony—robbery. (Id. at 5–6.) 20 In February 2018, the State Court reconsidered its decision to deny Plaintiff’s 21 habeas petition in light of the Nevada Supreme Court’s holding in Williams v. Nev. Dep’t 22 of Corr., et al., 402 P.3d 1260 (Nev. 2017).5 (ECF No. 29-6.) Upon reconsideration, the [23] 4(E.g., ECF No. 33 at 13–14; ECF No. 45 at 4.) [24] 5In Williams, the Nevada Supreme Court held: [25] 26 NRS [§] 209.4465(7) provides that credits earned pursuant to NRS [§] 209.4465: (a) “[m]ust be deducted from [a prisoner's] maximum term” of 27 imprisonment and (b) “[a]pply to eligibility for parole unless the offender was sentenced pursuant to a statute which specifies a minimum sentence that 28 must be served before a person becomes eligible for parole.” The first part 2 maintained its holding regarding count 1—denied as moot. (Id. at 2.) As to count 2, the 3 court found that Plaintiff was in fact entitled to statutory credits under NRS § 4 209.4465(7)(b) despite his robbery conviction and ordered that LCC recalculate Plaintiff’s 5 time served under count 2 within 30 days of its order. (Id. at 2–3.) 6 Before Plaintiff’s credits were recalculated he had a projected eligibility date of April 7 26, 2019, and a projected sentence expiration date of February 17, 2021. (ECF No. 38-9 8 at 2, 7.) After his credits were adjusted, Plaintiff’s parole eligibility date was determined to 9 be February 6, 2016. (Id. at 3, 9.) NDOC accordingly added Plaintiff to the next available 10 date for parole consideration. (Id. at 3; ECF No. 29-7 at 2.) In June 2018, Plaintiff was 11 ultimately denied parole until his mandatory parole release date. (ECF No. 29-8; ECF No. 12 38 at 6.) 13 III. LEGAL STANDARD 14 A. Review of Magistrate Judge’s Recommendation 15 This Court “may accept, reject, or modify, in whole or in part, the findings or 16 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). Where a party 17 timely objects to a magistrate judge’s report and recommendation, then the court is 18 required to “make a de novo determination of those portions of the [report and 19 recommendation] to which objection is made.” 28 U.S.C. § 636 (b)(1). 20 /// 21 /// 22 /// [23] of subsection 7(b) establishes a general rule—that credits earned pursuant 24 to NRS [§] 209.4465 apply to eligibility for parole. The second part of subsection 7(b) sets forth a limitation—the general rule does not apply if the 25 offender “was sentenced pursuant to a statute which specifies a minimum sentence that must be served before a person becomes eligible for parole.” 26 Thus, if the sentencing statute did not specify a minimum sentence that had to be served before parole eligibility, credits should be deducted from a 27 prisoner's minimum sentence, making an inmate eligible for parole sooner than he or she would have been without the credits. [28] 402 P.3d at 1262. 2 whether to adopt Magistrate Judge Cobb’s R&R. Upon reviewing the R&R, the briefs and 3 exhibits in this case, this Court finds good cause to adopt the R&R’s recommendations. 4 B. Summary Judgment Standard 5 “The purpose of summary judgment is to avoid unnecessary trials when there is no 6 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 7 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 8 the discovery and disclosure materials on file, and any affidavits “show that there is no 9 genuine issue as to any material fact and that the moving party is entitled to a judgment 10 as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is 11 “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could 12 find for the nonmoving party and a dispute is “material” if it could affect the outcome of the 13 suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 14 The moving party bears the burden of showing that there are no genuine issues of 15 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870 , 883 (9th Cir. 1982). Once the 16 moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the 17 motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 18 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must 19 produce specific evidence, through affidavits or admissible discovery material, to show 20 that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404 , 1409 (9th Cir. 1991), 21 and “must do more than simply show that there is some metaphysical doubt as to the 22 material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (quoting 23 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 24 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” 25 Anderson, 477 U.S. at 252. Moreover, a court views all facts and draws all inferences in 26 the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fischbach & 27 Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 28 /// 2 In the R&R, Judge Cobb found that Count I is barred by Heck v. Humphrey, 512 3 U.S. 477 (1994) and that as to that count and Count II Plaintiff has no protected liberty 4 interest to sustain this action under the Fourteenth Amendment. (ECF No. 44.) In his 5 Objection, Plaintiff challenges both findings. (ECF No. 45.) The Court overrules Plaintiff’s 6 Objection. 7 A. Count I 8 The Court agrees with Judge Cobb that Count I is Heck-barred. 9 In his Objection, Plaintiff argues multiple reasons why Count I is not Heck-bared. 10 (ECF No. 45 at 3–5.) First, Plaintiff argues that NDOC amounts to a state “tribunal” which 11 determined that his sentence was invalid by recalculating his sentence. (ECF No. 45 at 2.) 12 Plaintiff cites no authority supporting a contention that NDOC is in effect a tribunal and 13 therefore the Court rejects this argument. 14 Plaintiff next argues that his claim is not Heck-barred because he is only seeking 15 damages—not seeking to have his sentence shortened—and pointing out that he can no 16 longer challenge his sentence because it had expired. (ECF No. 45 at 2–3.) He also 17 contends that he did not know he was wronged until after his sentence had expired. (Id.) 18 In the R&R, Judge Cobb concluded that although Plaintiff only seeks damages, Plaintiff’s 19 claim is Heck-barred because a judgment in Plaintiff’s favor would necessarily imply the 20 invalidity of the duration of his confinement. (ECF No. 44 at 13–16.) Relying on 21 Muhammad v. Close, 540 U.S. 749 (2004), Plaintiff contends that Judge Cobb’s 22 conclusion is in error because there are situations in which a plaintiff need not establish 23 that his sentence has been invalidated to pursue relief under § 1983. (ECF No. 45 at 3– 24 4.) Judge Cobb, however, concluded that Muhammad is inapposite because the plaintiff’s 25 challenge there had no consequences for his conviction or the duration of his sentence 26 (ECF No. 44 at 14–15). See id. at 751. 27 As a preliminary matter, the Court agrees with Judge Cobb that Plaintiff implicitly 28 challenges the duration of his sentence or confinement based on Plaintiff’s contention that 2 under Garlotte he is considered to be “in custody” as he is currently serving the second 3 term of his consecutive prison sentences (ECF No. 33 at 13–14; ECF No. 45 at 4). See 4 Garlotte, 515 U.S. at 46–47 (viewing consecutive sentences in the habeas context in the 5 aggregate, “not as discrete segments”); see also Wirth v. Baker, No. 3:17-cv-00742-MMD6 CBC, 2019 WL 2552204 , at *3 (D. Nev. June 20, 2019) (reading Garlotte to mean that a 7 petitioner maintains his in custody status when serving a consecutive term). This all leads, 8 however, to the conclusion that Count I is Heck-barred. See Heck, 512 U.S. at 486–87 9 (holding that a state prisoner’s damages claims that necessarily implied the invalidity of 10 his conviction or sentence could not be maintained under § 1983 unless the prisoner 11 proved “that the conviction or sentence has been reversed on direct appeal, expunged by 12 executive order, declared invalid by a state tribunal authorized to make such 13 determination, or called into question by a federal court's issuance of a writ of habeas 14 corpus”). The Court finds that Plaintiff’s first sentence has not been invalidated and thus 15 Plaintiff cannot seek relief under § 1983. Accordingly, the Court will grant summary 16 judgment to Defendants on Count I. 17 B. Count II 18 The Court also agrees with Judge Cobb that Plaintiff has no protected liberty 19 interest to prevail on Count II,6 which undisputedly concerns Plaintiff’s contention that 20 proper application of additional credits would have made his parole eligibility date sooner. 21 (ECF No. 44 at 18–19.) Thus, Count II ultimately concerns parole eligibility (or right to a 22 parole hearing). 23 To state a Fourteenth Amendment due process claim, a plaintiff must adequately 24 allege that he was denied a specified liberty interest and that he was deprived of that 25 liberty interest without the constitutionally required procedures. Swarthout v. Cooke, 562 26 /// 27 6The Court does not consider whether Plaintiff has a liberty interest as to Count I as Judge Cobb did because the Court found Count I to be Heck-barred. [28] 2 in the discretionary grant of parole or parole eligibility. See Moor v. Palmer, 603 F.3d 658 , 3 661–62 (9th Cir. 2010); Fernandez v. Nevada, No. 3:06-CV-00628-LRH-RA, 2009 WL 4 700662, at *10 (D. Nev. Mar. 13, 2009). 5 Nonetheless, Plaintiff argues that he has a liberty interest because the system of 6 parole was authorized through the use of mandatory language and that there is a state7 created liberty interest. (ECF No. 45 at 6–8.) The Court disagrees. See NRS § 213.10705 8 (stating that “[t]he Legislature finds and declares that the release or continuation of a 9 person on parole or probation is an act of grace of the State. No person has a right to 10 parole or probation . . . and it is not intended that the establishment of standards relating 11 thereto create any such right or interest in liberty or property or establish a basis for any 12 cause of action against the State, its political subdivisions, agencies, boards, 13 commissions, departments, officers or employees”); see also Anderson v. 14 Cunningham, 319 F. App’x. 706, 710 (10th Cir. 2009) (holding that a prisoner does not 15 have a protected interest in earning good time credits because “under Colorado law, ‘good 16 time’ credits are discretionary”). 17 Additionally, under Sandin v. Conner, a state may create a liberty interest using 18 mandatory language only if the state’s action “will inevitably affect the duration of [a 19 plaintiff’s] sentence” or if there are prison conditions that impose “atypical and significant 20 hardship on the inmate in relation to the ordinary incidents of prison life.” 515 U.S. 472 , 21 484, 487 (1995). Here, the alleged miscalculation of Plaintiff’s credit did not affect the 22 duration of his sentence; it affected only when he would be considered for parole. To be 23 sure, an earlier parole eligibility date does not inevitably invalidate the duration of a 24 prisoner’s sentence. See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (holding that 25 /// [26] 7See also Swarthout, 562 U.S. at 222 (holding that “a ‘mere error of state law’ is 27 not a denial of due process”); 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 28 credits to sentence was an error of state law that did not constitute a due process violation). 1 || speeding up consideration for parole does not necessarily imply the invalidity of the 2 || duration of the prisoner's sentence); Klein v. Coblentz, 132 F.3d 42 (Table), 1997 WL 3 || 767538, *4 (10th Cir. 1997) (relying on Sandinto hold that, where good time credits applied 4 || under state law only to determining the prisoner’s parole eligibility date and not to a 5 || sentence reduction, the loss of credits did not inevitably increase the duration of the 6 || sentence and there was no liberty interest giving rise to due process protections). Thus, 7 || the Court agrees with Judge Cobb’s finding that Plaintiff has no protected liberty interest 8 || with respect to Count II. 9 In sum, the Court grants summary judgment in favor of Defendants and denies 10 || Plaintiff's motion for partial summary judgment because the Court concludes Count | is 11 || Heck-barred and Plaintiff establishes no protected liberty interest to maintain Count II.° 12 || V. CONCLUSION 13 Itis therefore ordered, adjudged and decreed that the Report and Recommendation 14 || of Magistrate Judge William G. Cobb (ECF No. 44) is accepted and adopted in its entirety. 15 It is further ordered that Plaintiff's Objection (ECF No. 45) is overruled. 16 It is further ordered that Defendants’ motion for summary judgment (ECF No. 29) 17 || is granted for the reasons stated herein. 18 It is further ordered that Plaintiff's partial motion for summary judgment (ECF No. 19 || 39) is denied. 20 The Clerk of Court is directed to enter judgment in accordance with this order and 21 || close the case. 22 DATED THIS 12" day of November 2019. 24 SRAM 95 CHIEF UNITED STATES DISTRICT JUDGE [26] a7 8Because the Court adopts the recommended grounds for the granting of summary 28 || judgment, the Court does not address Defendants’ alternative arguments. (See, e.g., ECF No. 29 at 9-13.)