Enoma Igbinovia v. James Dzurenda

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 18, 2021
• Docket: 20-16259
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED NOV 18 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ENOMA IGBINOVIA, No. 20-16259

Plaintiff-Appellant, D.C. No. 2:19-cv-00588-RFB-VCF

v. MEMORANDUM* JAMES DZURENDA; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

Submitted November 8, 2021**

Before: CANBY, TASHIMA, and MILLER, Circuit Judges.

Former Nevada state prisoner Enoma Igbinovia appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging

constitutional violations arising from a failure to apply statutory good time and

work/education credits to his minimum and maximum sentences. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to

state a claim under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Byrd v. Maricopa

County Bd. of Supervisors, 845 F.3d 919, 922 (9th Cir. 2017); Barren v.

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm in part, vacate

in part, and remand.

The district court properly dismissed without prejudice Igbinovia’s equal

protection, retaliation, and Ex Post Facto Clause claims because Igbinovia failed to

allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338,

341-42 (9th Cir. 2010) (although pro se pleadings are liberally construed, a

plaintiff must allege facts sufficient to state a plausible claim); see also Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (elements of an

equal protection “class of one” claim); Lynce v. Mathis, 519 U.S. 433, 441 (1997)

(to fall within ex post facto prohibition, a law must be retrospective and must

disadvantage the offender affected by it by increasing his punishment); Rhodes v.

Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (elements of a First Amendment

retaliation claim in the prison context).

The district court properly dismissed with prejudice Igbinovia’s due process

and Eighth Amendment claims based on deprivation of parole eligibility because

Igbinovia possessed no constitutionally protected liberty interest in parole

eligibility in Nevada. See Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983) (if a

2 20-16259 substantive interest is left to the state’s unfettered discretion, then state statutes

creating formal procedures surrounding that discretion do not create a liberty

interest); Moor v. Palmer, 603 F.3d 658, 661-62 (9th Cir. 2010) (Nevada law does

not create liberty interest in parole).

However, to the extent that the district court dismissed Igbinovia’s due

process and Eighth Amendment claims challenging the statutory deductions to his

maximum sentences on the ground that they were barred under Wilkinson v.

Dotson, 544 U.S. 74, 78 (2005), we vacate the judgment on these claims because

the record shows that Igbinovia is no longer in prison, and thus habeas relief may

no longer be available to him. We remand for consideration in light of our

decision in Nonnette v. Small, 316 F.3d 872, 877, 878 n.7 (9th Cir. 2002) (holding

that plaintiff could proceed with § 1983 action because habeas relief was no longer

available).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED in part, VACATED in part, and REMANDED.

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