Gholson v. State
| Decision Date | 20 June 2019 |
| Docket Number | No. 76926-COA,76926-COA |
| Parties | DARRYL E. GHOLSON, Appellant, v. THE STATE OF NEVADA; THE STATE OF NEVADA DEPARTMENT OF CORRECTIONS; BRIAN WILLIAMS, WARDEN; GABRIELA GARCIA, CASEWORKER SPECIALIST III; GILLIAN LAMBEY, CASEWORKER, SPECIALIST II; VANZETTE LEWIS, CASEWORKER, SPECIALIST II; AND WILLIAM LLOYD, CASEWORKER, SPECIALIST 1, Respondents. |
| Court | Nevada Court of Appeals |
Darryl E. Gholson appeals from a district court order dismissing a civil rights action. Eighth Judicial District Court, Clark County; Mark B. Bailus, Judge.
In a second amended complaint and demand for jury trial filed on June 29, 2018, Gholson claimed the respondents violated his Fourteenth Amendment due process rights by taking away statutory credits he had already earned without notice and a hearing. Gholson alleged that between January 2015 and June 2015 he received credit for work he did while on an extra job work list, and in October 2015, 30 days before his prison release date, the respondents took 48 days of good time credit from him without any notice. Gholson sought an award for damages resulting from the alleged due process violation.
Respondents filed a motion to dismiss the complaint pursuant to NRCP 12(b)(5). First, respondents argued dismissal was warranted because Gholson did not make personal allegations against any defendant. Second, respondents stated Gholson's projected release date was readjusted because he was not employed during the entire period of his incarceration and, therefore, he did not earn all potential good time credit. Respondents argued, Gholson did not have a liberty interest and could not establish a due process violation based on the readjustment of his release date because there is no right to good time credit and no right to employment. Because Gholson did not oppose the motion to dismiss, respondents filed a notice asserting that pursuant to EDCR 2.20(e) the motion should be granted and Gholson's case should be dismissed.
The record indicates that, at a hearing on the motion to dismiss, the district court granted the motion without prejudice pursuant to EDCR 2.20(e) and directed respondents' counsel to prepare an order consistent with the motion. In the written order granting the motion to dismiss, the district court found there was "substantial evidence to support the [respondents'] positions" and "there was no Due Process violation regarding [Gholson] not being credited with good time credits, when [he] failed to obtain employment." The district court concluded that Gholson failed to state a claim upon which relief may be granted because he had no constitutional right to employment while in prison and he had no constitutional right to parole or classification status.
Gholson claims the district court erred by granting respondents' motion to dismiss pursuant to NRCP 12(b)(5) because he asserted a claim upon which relief can be granted. Specifically, he points out an inmate has a liberty interest in credit that he has earned and he alleged he was entitled to damages because respondents violated his constitutional rights by taking away statutory credit he had already earned without notice and a hearing.
Respondents argue the district court's order should be affirmed because the court properly granted the motion to dismiss pursuant to EDCR 2.20(e) when Gholson failed to file an opposition to the motion. Respondents argue Gholson's failure to oppose the motion was an admission that the motion was meritorious and there is nothing at the district court level to support Gholson's claim that the Nevada Department of Corrections took away any credits. Alternatively, respondents argue this court can affirm the dismissal of Gholson's petition because the district court reached the right result, even if for the wrong reason.
In reply, Gholson states respondents' argument addresses his imprisonment during 2017-18, not his imprisonment during 2015, which is the basis for the allegation in his complaint.
"We rigorously review a district court order granting an NRCP 12(b)(5) motion to dismiss, accepting all of the plaintiff's factual allegations as true and drawing every reasonable inference in the plaintiff's favor to determine whether the allegations are sufficient to state a claim for relief." Alcantara v. Wal-Mart Stores, Inc., 130 Nev. 252, 256, 321 P.3d 912, 914 (2014) (citing Buzz Stew, L.L.C. v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008)). "A complaint should be dismissed for failure to state a claim 'only if it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [the plaintiff] to relief.'" Id. (quoting Buzz Stew, 124 Nev. at 228, 181 P.3d at 672). We review the district court's legal conclusions de novo. Id. However, "a de novo standard of review does not trump the general rule that '[a] point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal." Schuck v. Signature Flight Support of Nev., Inc., 126 Nev. 434, 436, 245 P.3d 542, 544 (2010)(quoting Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). Nevertheless, "[t]he ability of this court to consider relevant issues sua sponte in order to prevent plain error is well established." Bradley v. Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986) (citation omitted). An error is "plain" if "the error is so unmistakable that it reveals itself by a casual inspection of the record." Williams v. Zellhoefer, 89 Nev. 579, 580, 517 P.2d 789, 789 (1983).
Initially, we agree the district court had discretion to grant respondents' motion to dismiss pursuant to EDCR 2.20(e) based on Gholson's failure to oppose the motion. And, we acknowledge that, by failing to file an opposition to the motion to dismiss, Gholson waived his right to challenge the district court's decision. See Schuck, 126 Nev. at 436, 245 P.3d at 544. However, because the error in dismissing the complaint pursuant to 12(b)(5) is so unmistakable from a casual inspection of the record, we conclude the waiver does not operate as a bar to addressing Gholson's claim. We further conclude that, because, as discussed below, Gholson stated a claim upon which relief could be granted and respondents' arguments in the motion to dismiss did not establish a basis for dismissing the complaint pursuant to NRCP 12(b)(5), the district court abused its discretion by relying on EDCR 2.20(e) to dismiss the complaint.
As noted above, Gholson's complaint provided a short and plain statement of the claim showing that he was entitled to relief. Specifically, he alleged respondents took away credit he had earned without notice or a hearing in violation of his due process rights. Gholson's claim implicated a protected liberty interest, because it is well established "that prisoners have a liberty interest in good behavior time credits, provided they have earned the credits under applicable state statutes and procedures." Bergen v.Spaulding, 881 F.2d 719, 721 (9th Cir. 1989) (citing Wolff, 418 U.S. at 556-57); see also Reynolds v. Wolff, 916 F. Supp. 1018, 1022-23 (D. Nev. 1996). And Gholson made a demand for damages based on the alleged violation. See NRCP 8(b).
Respondents' first argument, that Gholson's claim was legally deficient because it did not allege the respondents were acting in their personal capacities, lacked merit. Although Gholson did not specifically cite 42 U.S.C. § 1983 in the complaint, based on the nature of Gholson's claim, it is clear the claim can only be raised in the context of a 42 U.S.C. § 1983 action. And, where a plaintiff seeks damages against a state official in a 42 U.S.C. § 1983 action, it is presumed that the state official is being sued in his or her personal capacity. See Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016); Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999); Shoshone-Bannock Tribes v. Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994); Cerrato v. S.F. Cmty. Coll. Dist., 26 F.3d 698, 673 n.16 (9th Cir. 1994); see also Craig v. Donnelly, 135 Nev., Adv. Op. 6 at *6, 439 P.3d 413, 416 (2019) (). Because this argument lacked merit, it did not provide a basis for dismissing the complaint pursuant to NRCP 12(b)(5).
Respondents' second argument, that Gholson did not have a liberty interest and could not establish a due process violation based on the readjustment of his release date because there is no right to good time credit and no right to employment, did not address the claim raised in the complaint. Although it is true there is no right to good time credit and no right to employment, this is not what Gholson argued. Rather, Gholson claimed he had earned credit and the credit he had earned was taken awaywithout notice or a hearing. As noted above, Gholson has a liberty interest in credit he has earned. Therefore, respondents' argument did not establish Gholson failed to state a claim upon which relief can be granted and did not provide a basis for dismissing the complaint pursuant to NRCP 12(b)(5).
Because respondents' arguments did not provide a basis for dismissing Gholson's complaint pursuant to NRCP 12(b)(5), and reliance on EDCR 2.20(e) to dismiss the complaint resulted in the dismissal of Gholson's complaint on a clearly erroneous basis, we
ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.1
/s/_________, C.J.
Gibbons
/s/_________, J.
Bulla
Gholson appeals from the grant of a motion to dismiss his section 1983 claim that he failed to oppose in writing below. Normally, when a party fails to oppose a motion in district court via a written opposition containing cogent legal argument supported by legal authority, that pa...
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