1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Raul E.Gonzalez, Case No.: 2:19-cv-00214-JAD-VCF 4 Plaintiff 5 v. Order Screening Complaintand Dismissing Case 6 A.G. Adam Laxalt,et al., 7 Defendants 8 9 Plaintiff Raul E.Gonzalezbrings this civil-rights action under

, 10 claiming that his Fourteenth Amendment due-process and equal-protection rights were violated 11 during his incarcerationat High Desert State Prison (HDSP). Because Gonzalez applies to 12 proceed in forma pauperis,1 I screen his complaint under 28 U.S.C. § 1915A. Though Gonzalez 13 has demonstratedthat he qualifies for pauper status, I find that he cannot plead a due-process 14 claim and has not pled an equal-protection claim, so I grant the application to proceed in forma

15 pauperis but dismiss the complaint in its entirety without leave toamend. 16 I. Screening standard 17 Federal courts must conduct a preliminary screening in any case in which a prisoner 18 seeks redress from a governmental entity or an officer or employee of a governmental entity.2 In 19 its review, the court must identify any cognizable claims and dismiss any claims that are 20 frivolous or malicious, or that fail to state a claim upon which relief may be granted or seek 21 22 23 1 ECF No. 1. 2 See 28 U.S.C. § 1915A(a). 1 monetary relief from a defendant who is immune from such relief.3 All or part of the complaint 2 may be dismissed suasponteif the prisoner’s claims lack an arguable basis in law or fact. This 3 includes claims based on legal conclusions that are untenable, like claims against defendants who 4 are immune from suit or claims of infringement of a legal interest which clearlydoes not exist, as 5 well as claims based on fanciful factual allegations or fantastic or delusional scenarios.4

6 Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot 7 prove any set of facts in support of the claim that would entitle him or her to relief.5 In making 8 this determination, the court takes all allegations of material fact as true and construes them in 9 the light most favorable to the plaintiff.6 Allegations of a pro se complainant are held to less 10 stringent standards than formal pleadings drafted by lawyers,7but a plaintiff must provide more 11 than mere labels and conclusions.8 “While legal conclusions can provide the framework of a 12 complaint, they must be supported with factual allegations.”9 “Determining whether a complaint 13 states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court 14 to draw on its judicial experience and common sense.”10

15 16 17 3 See28 U.S.C. § 1915A(b)(1)(2). 18 4 See Neitzke v. Williams,

, 327–28 (1989); see alsoMcKeever v. Block,

(9th Cir. 1991). 5 See Morley v. Walker,

(9th Cir. 1999). 20 6 See Warshaw v. Xoma Corp.,

(9th Cir. 1996). 21 7 Hughes v. Rowe,

(1980); see also Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990) (recognizing that pro se pleadings must be liberally construed). 22 8 Bell Atlantic Corp. v. Twombly,

(2007). 23 9 Ashcroft v. Iqbal,

(2009). 10

1 II. Screening Gonzalez’s complaint 2 Gonzalezsues multiple defendants for events that took place while Gonzalez was 3 incarcerated at HDSP.11 Gonzalezsues Defendants Warden Brian Williams, NDOC Director 4 James Dzurenda, Attorney General Adam Laxalt, Attorney General Aaron Ford, and Associate 5 Warden Jennifer Nash.12 He alleges one count and seeks monetary damages.13

6 In his complaint, Gonzalezalleges the following: Gonzalez was sentenced on May 7, 7 2007, when NRS § 209.4465(7) was in effect.14 The NDOC sent Gonzalezto the parole board 8 prematurely in 2014 due to his aggregated sentences.15 The parole board instructed the NDOC 9 to recalculate Gonzalez’s parole date to sometime in 2016 but the NDOC failed to bring 10 Gonzalezbefore the parole board in 2016.16 Gonzalezcomplained to Williams but Williams 11 failed to respond.17 Gonzalezsubmitted a grievance to Nash but she denied his request as 12 untimely.18 Dzurenda ignored Gonzalez’s notice.19 Laxalt and Ford were required to inform the 13 NDOC of the good time credit requirement under NRS § 209.4465(7).20 Gonzalez alleges that 14 this conduct violated his Fourteenth Amendment rights todue process and equal protection.21

15 16 11 ECF No. 1-1 at 1. 17 12 Id.at 2–3. 18 13 Daryl E. Gholson helped Gonzalezprepare the complaint. ECF No. 1-1 at 4, 8. 14 Id.at 4. 19 15 Id. 20 16 Id. 21 17 Id. 18 Id. 22 19 Id.at 5. 23 20 Id. 21 Id.at 4. 1 Gonzalezis challenging the defendants’ failure to apply good-time credits to Gonzalez’s 2 minimum sentence and parole-eligibility date as directed by NRS § 209.4465(7). NRS § 3 209.4465(7) permits good-time credits to be applied to a prisoner’s minimum sentencein certain 4 circumstances, making an inmate eligible for parole sooner than he would have been without the 5 credits.22 Because Gonzalez’s lawsuit involves his parole-eligibility date and not his underlying

6 conviction or overall sentence, a§ 1983 actionis the proper vehicle to raise such a challenge.23 7 So I proceed to consider whether Gonzalez has pled any viable § 1983 claim. 8 A. Gonzalez cannot state a due-process claim because the law does not deem the 9 violation ofstate parole-eligibility requirements to bea due-process violation. 10 In order to state a Fourteenth Amendment due process claim, a plaintiff must adequately 11 allege that he was denied a specified liberty interest and that he was deprived of that liberty 12 interest without the constitutionally required procedures.24 But, in Nevada, state prisoners do not 13 have a liberty interest in parole or parole eligibility.25 Additionally, allegations that a defendant 14 violated state law are not sufficient to state a claim for violation of the Fourteenth Amendment’s 15 due-process clause.26 16 17 18 22 See NRS § 209.4465(7); Williams v. State Dep’t of Corr.,

, 1262 (Nev. 2017). 23 See Wilkinson v. Dotson,

(2005) (holding that if a civil claim merely would 19 speed up the plaintiff’s considerationfor paroleand would not necessarily imply the invalidity of the duration of confinement, then that claim may proceed in a § 1983 action). 20 24 Swarthout v. Cooke,

, 219 (2011). 21 25 SeeMoor v. Palmer,

(9th Cir. 2010); Fernandez v. Nevada, No. 3:06- CV-00628-LRH-RAM,

, at *10 (D. Nev. Mar. 13, 2009). 22 26 Swarthout, 562 U.S. at 222 (holding that “a ‘mere error of state law’ is not a denial of due process”); see also Young v. Williams, No. 2:11-CV-01532-KJD,

, at *3 (D. 23 Nev. June 4, 2012) (holding that alleged error in applying good time credits to sentence was an error of state law that did not constitute a due process violation). 1 I findthat Gonzalezfails to state a colorable due process claim based on the allegations 2 that the defendants violated NRS § 209.4465(7)(b) and deprived him of an earlier parole- 3 eligibility date. Gonzalezcannot establish a liberty interest in his parole eligibility date, and the 4 failure to properly apply NRS § 209.4465(7) constitutes an error of state law and the law does 5 not recognize such an error as a valid basis for a due-process claim. So I dismiss Gonzalez’s

6 due-process claim with prejudicebecauseit fails as a matter of law and amendment would be 7 futile. 8 B. Gonzalez has pled no facts to suggest an equal-protection violation. 9 The Equal Protection Clause of the Fourteenth Amendment requires all similarly situated 10 persons be treated equally under the law.27 In order to state an equal protection claim, a plaintiff 11 must allege facts demonstrating that defendants acted with the intent and purpose to discriminate 12 against him based upon membership in a legally recognized protected class, or that defendants 13 purposefully treated him differently than similarly situated individuals without any rational basis 14 for the disparate treatment.28 Gonzalezfails to state a colorable equal-protection claim because

15 hemakes no allegations to support such aclaim. Accordingly, I dismiss the equal-protection 16 claim without prejudice. And because Gonzalez’s allegations do not even hint at an equal- 17 protection issue, I find no basis togrant leave to amend. 18 Conclusion 19 IT IS THEREFORE ORDERED that theapplication to proceed in forma pauperis 20 without having to prepay the filing fee [ECF No. 1] is GRANTED.29 Plaintiffneed not pay an 21 27 City of Cleburne, Tex. v. Cleburne Living Ctr.,

(1985). 22 28 Lee v. City of Los Angeles,

(9th Cir. 2001); see also Vill. of Willowbrook v. Olech,

(2000). 23 29 This order granting in forma pauperis status does not extend to the issuance orservice of subpoenas at government expense. initial installment fee, prepay fees or costs or provide security for fees or costs, but he is still 2\| required to pay the full $350 filing fee under

as amended. This full filing fee remains due and owing even though this case is being dismissed. 4 In order to ensure that plaintiff pays the full filing fee, IT IS FURTHER ORDERED that 5|| the Nevada Department of Corrections must pay to the Clerk of the United States District Court, 6|| District of Nevada, 20% of the preceding month’s deposits to the account of Raul E. Gonzalez, 7|| #96597 (in months that the account exceeds $10.00) until the full $350 filing fee has been paid 8|| for this action. The Clerk is directed to SEND a copy of this order to the attention of Chief of Inmate Services for the Nevada Department of Prisons, P.O. Box 7011, Carson City, NV 10}| 89702. 11 IT IS FURTHER ORDERED that the Clerk of the Court is directed to FILE the 12|| complaint [ECF No. 1-1] and send Gonzalez a courtesy copy. 13 Having screened the complaint, IT IS FURTHER ORDERED that: 14 e The due process claim is DISMISSED with prejudice, as amendment would be 15 futile, and without leave to amend; and 16 e The equal protection claim is DISMISSED without prejudice and without leave 17 to amend. 18 IT IS FURTHER ORDERED that the Clerk of the Court is directed to CLOSE THE 19] CASE and ENTER JUDGMENT accordingly. 20 I certify that any in forma pauperis appeal from this order would not be taken in good faith as contemplated by

(a)(3). 22 Dated: November 19, 2019 23 _ U.S. District J Jennifer A, Dorsey