NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ENOMA IGBINOVIA, 

Plaintiff-Appellant, 

 v. 

JAMES DZURENDA; et al., 

Defendants-Appellees.

No. 20-16259 

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

MEMORANDUM*

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).

FILED

NOV 18 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 20-16259 

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 
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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.