Benitez v. Dzurenda

— 2 — 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JESUS O. BENITEZ, Case No. 3:19-cv-00190-MMD-WGC 7 Plaintiff, ORDER v. — 8 — JAMES DZURENDA, et al., — 9 — Defendants. — 10 — 11 Plaintiff, who is an incarcerated person in the custody of the Nevada Department 12 of Corrections (“NDOC”), previously submitted a civil rights complaint pursuant to 42 13 U.S.C. § 1983 . (ECF No. 1-1.) On December 16, 2019, the Court screened Plaintiff’s 14 Complaint. (ECF No. 6.) In its screening order, the Court dismissed Plaintiff’s Fourteenth 15 Amendment due process claim with prejudice for failure to state a claim. (Id. at 9.) Plaintiff 16 has now moved for reconsideration of that ruling. (ECF No. 8.) 17 A motion to reconsider must set forth “some valid reason why the court should 18 reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to 19 persuade the court to reverse its prior decision.” Frasure v. United States, 256 F.Supp.2d 20 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented 21 with newly discovered evidence, (2) committed clear error or the initial decision was 22 manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 23 1J v. Acands, Inc., 5 F.3d 1255 , 1263 (9th Cir. 1993). 24 Plaintiff appears to be arguing that the Court committed clear error in its screening 25 order. In its screening order, the Court explained that to state a colorable due process 26 claim, Plaintiff was required to adequately allege that he had been denied a liberty interest, 27 and the Court determined that Plaintiff had not adequately alleged a liberty interest in his 28 parole eligibility date. (ECF No. 6 at 6.) In his motion for reconsideration, Plaintiff relies on 2 right to be considered for parole. (ECF No. 8 at 2-3.) He reasons that, on three separate 3 occasions, under Nevada law, he had a right to be considered for parole at an earlier date 4 and that he therefore had a liberty interest and a due process right to earlier consideration 5 for parole. (Id. 8 at 2.) 6 Plaintiff is incorrect. Anselmo has no bearing on Plaintiff’s case and did not concern 7 parole eligibility dates. In Anselmo, the Nevada Supreme Court recognized that Nevada 8 prisoners had no liberty interest in parole but ruled that eligible Nevada inmates do have 9 a statutory right to have the Parole Board’s internal guidelines concerning aggravating 10 factors interpreted correctly when the Parole Board is determining whether to grant or 11 deny them parole. Anselmo, 396 P.3d at 849-51. 12 Here, neither the internal guidelines nor the denial of parole are at issue. Plaintiff 13 contends that officials failed to comply with NRS § 209.4465(7)(b) regarding the 14 calculation of his parole eligibility dates. (ECF No. 8 at 2.) As the Court previously 15 explained to Plaintiff in its screening order, allegations that a defendant violated state law 16 are not sufficient to state a claim for violation of the Fourteenth Amendment’s Due Process 17 Clause. Swarthout v. Cooke, 562 U.S. 216 , 222 (2011); see also Young v. Williams, No. 18 2:11-cv-01532-KJD, 2012 WL 1984968 , at *3 (D. Nev. June 4, 2012) (holding that alleged 19 error in applying good time credits to sentence was an error of state law that did not 20 constitute a due process violation). 21 In order to state a Fourteenth Amendment due process claim, a plaintiff must 22 adequately allege that he was denied a specified liberty interest and that he was deprived 23 of that liberty interest without the constitutionally required procedures. Swarthout, 562 U.S. 24 at 219 . The Supreme Court has held that, even when a state statute uses mandatory 25 language, a state can create a liberty interest that invokes procedural protections under 26 the Due Process Clause only if the state's action "will inevitably affect the duration of his 27 sentence" or if there are prison conditions that impose "atypical and significant hardship 28 /// 1 || on the inmate in relation to the ordinary incidents of prison life." /d. at 484, 487 (emphasis 2 || added). 3 The issue here is whether the incorrect calculation of Plaintiff's parole eligibility date 4 || inevitably affects the duration of his sentence. It does not. As the Court explained in its 5 || screening order, under Nevada’s statutory parole scheme, parole is discretionary, not 6 || mandatory. See Moor v. Palmer, 603 F.3d 658, 661-62 (9th Cir. 2010). Therefore, the 7 || minimum term affects only when Plaintiff would be considered for parole, not when he 8 || would be entitled to be released. An earlier parole eligibility date does not inevitably affect 9 || the duration of a prisoner's sentence. See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) 10 || (holding that speeding up consideration for parole does not necessarily imply the invalidity 11 || of the duration of the prisoner's sentence); Klein v. Coblentz, 1997 WL 767538, *4 (10th 12 || Cir. 1997) (relying on Sandin to hold that, where good time credits applied under state law 13 || only to determine the prisoner’s parole eligibility date and not to a sentence reduction, the 14 || loss of credits did not inevitably increase the duration of the sentence and there was no 15 || liberty interest giving rise to due process protections); Dodge v. Shoemaker, 695 F. Supp. 16 |} 2d 1127, 1139 (D. Colo. 2010). Therefore, Plaintiff does not adequately allege a liberty 17 || interest and does not and cannot state a due process claim. 18 Plaintiff has not shown that the Court committed clear error in its screening order. 19 It is therefore ordered that the motion for reconsideration (ECF No. 8) is denied. — 20 — DATED THIS 22" day of January 2020. 22 LZ Cho _ IRANDA M. DU 23 CHIEF UNITED STATES DISTRICT JUDGE — 24 — — 25 — — 26 — — 27 — — 28 —