FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PHILIP ROY GALANTI,

Plaintiff

- Appellant,

v.

NEVADA DEPARTMENT OF CORRECTIONS; CLARK COUNTY SCHOOL DISTRICT; JAMES DZURENDA, Director; BRIAN WILLIAMS, Warden, Warden; MOORE, Caseworker; RITZ, Caseworker; NASH, Associate Warden; KIM PETERSON, NDOC Administrator; J. CAVIN, School Counselor; ROLAND; HOW ELL,

Defendants

- Appellees. No. 20

- 17332

D.C. No. 2:19

- cv

- 01044

- GMN

- EJY

OPINION

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Argued and Submitted March 28, 2023 San Francisco, California

Filed April 25, 20232 G AL ANTI V

. N EVADA D EP ’ T OF C ORRECTIONS

Before: MILAN D. SMITH, JR . and JOHN B. OWENS
,

Circuit Judges, and XAVIER RODR IGUEZ
, * District Judge.

Opinion by Judge Milan D. Smith , Jr.

SUMMARY **

Prisoner Civil Rights

The panel affirmed in part and reversed in part the district court’s dismissal of an action brought pursuant to 42 U.S.C. § 1983 against the Nevada Department of Corrections and several Department officials alleging that they violated plaintiff’s c onstitutional rights by failing to deduct education

- credits he earned from his sentence, and remanded. While incarcerated, plaintiff completed several education courses which entitled him to sentence deductions under Nevada law. After he was released and his parole ended, plaintiff sued, asserting that defendants’ failure to apply earned credit-deductions to his sentence deprived him of liberty without due process and denied him equal protection of the law by targeting him for the denial of credits because he is a sex offender.

* The Honorable Xavier Rodriguez, United States District Judge for the Western District of Texas, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.G ALANTI V

. N EVADA D EP ’ T OF C ORRECTIONS 3

The panel first rejected defendants’ argument that plaintiff’s claims were barred by Heck v. Humphrey , 512 U.S. 477 (1994), because they necessarily implied that the duration of his sentence was invalid. The panel held that Heck did not apply in this case. Plaintiff was no longer in custody and was thus unable to raise claims for credit

deductions in a petition for habeas corpus. As such, this case fell within the limited exception to Heck this court recognized in Nonnette v. Small, 316 F.3d 872, 875

– 76 (9th Cir. 2002). The panel held that the district court erred by interpreting plaintiff’s due process claim as asserting only a deprivation of minimum

- sentence deductions affecting his parole eligibility date and ignoring h is claim for maximum

sentence deductions. Despite being instructed to brief the issue, defendants did not respond to plaintiff’s argument that Nev. Rev. Stat. § 209.4465 contains the mandatory language necessary to create a constitutionally protected libe rty interest in maximum

- sentence deductions, similar to good

time statutes this court previously found to create liberty interests. Accordingly, the panel reversed and remanded with respect to plaintiff’s due process claim. The panel affirmed the dismiss al of the equal protection claim because plaintiff had not alleged facts supporting discrimination.4 G AL ANTI V

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COUNSEL

Ri z elle Dizon (argued) and Justine Chang, Certified Law Students; Leah Spero, Gary A. Watt, and Stephen Tollafield, Supervising Attorneys; University of California, Hasting College of the Law, Hastings Appellate Project; San Francisco, California; for Plaintiff -Appellant. Sabrena K. Clinton (argued), Deputy Attorney General; Gregory L. Zunino, Deputy Solicitor General; Frank A. Toddre II, Senior Deputy Attorney General; D. Randall Gilmer, Chief Deputy Attorney General; Aaron D. Ford, Attorney General of Ne vada; Office of the Nevada Attorney General; Las Vegas, Nevada; Patrick J. Murch, McDonald Carano LLP, Las Vegas, Nevada; for Defendants

- Appellees.

OPINION

M. SMITH, Circuit Judge:

Philip Roy Galanti sued the Nevada Department of Corrections (NDOC) and several NDOC officials pursuant to 42 U.S.C. § 1983
, claiming that they violated his constitutional rights by fail ing to deduct education

- credits he earned from his sentence

. Defendants a rgue that Galanti’s claims are barred by Heck v. Humphrey

, 512 U.S. 477 (1994) , because they necessarily imply that the duration of his sentence was invalid

. We hold that Heck does not apply in this case

. Galanti is no longer in custody and is thus unabl e to raise claims for credit deductions in a petition for habeas corpu s . As such,G ALANTI V

. N EVADA D EP ’ T OF C ORRECTIONS 5

this case fall s within the limited exception to Heck we recognized in Nonnette v. Small, 316 F.3d 872 , 875

– 76 (9th Cir. 2002)

. Because Heck does not bar this law suit

, we reverse and remand with respect to Galanti’s due process claim

, which the district court misconstrued as challenging only the denial of credit

- deductions from his parole date. W e affirm the dismissal of the equal protection claim, as Galanti failed to allege discrimination.

BACKGROUND Philip Roy Galanti is a former Nevada state prisoner

. W hile incarcerated, he complete d several education courses , which e ntitled him to sentence deduct ions under Nevada law. He alleges that, w ith the deductions he earned from obtaining his high school diploma and two vocational certificates, his sentence should have expired on June 1

, 2018

. However, b ecause NDOC officials did not apply the deductio ns, his sentence did not expire until August 22

, 2018

. After he was released and his parole e nded

, Galanti sued NDOC and several NDOC officials pro se. In h is First Amended Complaint (FAC) , Galanti raises two claims. First, he asserts that Defendants’ failure to apply earned credit

- d eductions to his sentence deprived him of liberty without due process . Second, he claims Defendants denied him equal protection of the law by targeting him for the denial of credits because he is a sex offender

. Galanti alleges that NDOC officials failed to rectify the situation despite his complaints while he was still incarcerated and complaints from his mother

. He further alleges they denied him access6 G AL ANTI V

. N EVADA D EP ’ T OF C ORRECTIONS

to his credit and sentence reports, which prevented him from verifying his credit calculations while incarcerated

. 1 Defendants moved to dismiss, arguing that Galanti failed
to state a ny constitutional violation s , Heck bars his claims

, qualified immunity shields the officer

- defendants from liability , and NDOC is not a proper party . The district court granted the motion. C onstru ing Galanti’s due process claim

as being based on the fail ure to apply credit

- deductions to his “minimum sentence,” or parole eligibility date

, the district court dismissed the claim with prejudice on the ground that Nevada law d oes not create a constitutionally protected l iberty interest in parole. T he court dismisse d the equal protection claim for failure to plead discrimination and declined to reach the remaining issues.

JURISDICTION AND STANDARD OF REVIEW We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a decision on a motion to dismiss for failure to state a claim de novo, accepting the allegations in the complaint as true and viewing them in the light most favorable to the plaintiff. Gonzalez v. Google LLC , 2 F.4th 871, 885 (9th Cir. 2021). Pro se pleadings are construed liberally. Thompson v. Davis , 295 F.3d 890, 895 (9th Cir. 2002).

ANALYSIS

A lthough the district court did not reach the issue

, Defendants assert that all of Galanti’s claims are barred by Heck because a judgment in his favor would necessarily

1 The FAC also contains a n equal protection claim based on allegations that Defendants awarded fewer discretionary credits to inmate students compared to inmate workers

, as well as Fourth, Fifth, and Eight Amendment claims , which are no t at issue in this appeal

.G ALANTI V

. N EVADA D EP ’ T OF C ORRECTIONS 7

imply the invalidity of the duration of his sentence. Galanti
argues that his claims fall under an exception to Heck recognized by our court in Nonnette because he is no longer incarcerated and thus cannot bring his claim for credit deductions in a habeas petition

. Defendants contend that Nonnette is inapplicable because Galanti did not timely
pursue habeas relief while in custody

. Apart from Heck

, Galanti argues that the district court misconstrued his d ue process claim as challenging the denial of minimum

- sentence deductions

— in which he concedes that he lacks a liberty interest

— and ignored his interest in maximum

- sentence deductions. With respect to his equal protection claim

, Galanti argues that he sufficiently alleged discrimination. Defendants endorse the district court’s analysis of both claims. We address each argument in turn.

I. Heck v. Humphrey Does Not Bar Galanti ’s Claims

In Heck , the Supreme Court held that to recover damages pursuant to § 1983 for an unconstitutional conviction or sentence , the plaintiff “ must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal autho rized to make such determination, or called into question by a federal court ’ s issuance of a writ of habeas corpus .” 512 U.S. at 486

– 87

. If a “judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence ” and th at conviction or sentence has not been invalidated, the claim is not cognizable under § 1983. Id. at 487. The Court has since clarified that the Heck rule applie s to claims for unconstitutional deprivation of good

- time credits, if a favorable judgment would imply the invalidity of such8 G AL ANTI V

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deprivation. See Edwards v. Balisok , 520 U.S. 641, 648 (1997).

After Heck

, five Justices in Spencer v. Kemna , 523 U.S. 1 (1998), “suggeste d that Heck ’s scope might be narrower than Heck itself indicated.” Lyall v. City of Los Angeles

, 807 F.3d 1178, 1190 (9th Cir. 2015)

. The Court held that, while an ex

- prisoner’s habeas petition challenging his underlying conviction does not become moot upon his release due to the continuing consequences of a criminal record

, the petitioner’s challeng e to his parole revocation was mooted by his release from custody

. S ee S pencer , 523 U.S. at 7

– 1 3 . B ut f ive J ustices noted that the petitioner

c ould bring such a claim under § 1983 without satisfy ing Heck ’s favorable

- termination requirement , as “ it would be impossible as a matter of law for him to satisfy ” that requirement due to the unavailability of habeas relief. I d. at 21 (Souter, J., concurring) ; see id . at 25 n.8 (Stevens, J., dissenting); see also Guerrero v. Gates
, 442 F.3d 697, 704 (9th Cir. 2006) (“The Spencer concurrence suggests that a plaintiff ’ s inability to pursue habeas relief after release from incarceration should create an exception to Heck’s bar.”)

. Then i n Nonnette
, we applied this reasoning in holding that Heck did not preclude an ex

- prisoner’s § 1983 claim challenging denial of good

- time credits because he could no longer bring that claim in a habeas petition

. See 316 F.3d at 875

– 76. Nonnette filed his § 1983 suit while in custody, alleging that prison officials miscalculated his sentence and unlawful ly revoked his credits. Id. at 874. T he district
court dismissed pursuant to Heck because a judgment in Nonnette’s favor would imply the invalidity of his sentence. Id. After that decision was entered, he was released from custody. Id. at 875. We reasoned that because Nonnette’s release rendered habeas relief unavailable under Spencer
,G ALANTI V

. N EVADA D EP ’ T OF C ORRECTIONS 9

his § 1983 action c ould be maintained

. See i d. at 87 5

– 7 6. W e also “ emphasiz e [d] that [the] hol d ing affects only former prisoners challenging loss of good

- time credits, revocation of parole or similar matters”

— not challenges to underlying convictions , because ex

- prisoners continue to be able to challenge their underlying convictions in habeas after their release. Id

. at 878 n.7 (citing Spencer , 523 U.S. at 7

– 12); see also Lyall , 807 F.3d at 1192 (holding that the plaintiff’s claim “d[id] not come within the narrow exception recognized in Spencer and Nonnette ” because it challenged his underlying conviction).

We hav e since r ecognized potential limits to Nonnette

. In Guerrero
, we held that Heck barred the plaintiff’s § 1983 suit even though he was no longer in custody and habeas rel ief was unavailable

, distinguish ing the case from Nonnette on two grounds. See 442 F.3d 702

– 0 5

. First, Guerrero’s claims attacked his conviction

, not “ loss of good

- time credits, revocation of parole or similar matters

, ” and thus they were plainly outside Nonnette ’s purview. Id. at 705 (quoting Nonnette , 316 F.3d at 878 n.7)

. S econd, Guerrero did not “ timely pursue[] appropriate relief

. ” Id. (emphasis added)

. We noted that the plaintiff in Nonnette “immediately pursued relief after the incident giving rise to [his] claims and could not seek habeas relief only because of the shortness of his prison sentence

. ” Id. In contrast, Guerrero waited three y e ars to file suit

, allow ing the statute of limitati ons on his habeas claim to expire. Id. ; see 28 U.S.C. § 2244(d)(1) ( establishing one

- year deadline for filing federal habeas corpus petitions). As such, “[h]is failure to timely achieve habeas relief [wa]s self

- imposed ” and not a reason for him to avoid the Heck bar. Guerrero
, 442 F.3d at 705.10 G AL ANTI V

. N EVADA D EP ’ T OF C ORRECTIONS

This case is m uch m ore like Nonnette than Guerrero. First, Galanti challenges the deprivation of credit

deductions, not his underlying sentence. Second, to the extent that Guerrero imposes a diligence requirement on § 1983 plaintiffs under Nonnette , it does not bar Galanti’s claim

. G iven the timeline Galanti allege s , he had little time to obtain habeas relief

. Galanti earned the credits at issue on April 1, 2018 , he was released on June 1, 2018, and his parole expired on August 22, 2018, giving him only a few months during which he could have filed a habeas petition. A nd if his sentence expired during the pendency of his case

, which is very likely give n the timeframe , it would have been d ismissed as moot

. This differs from the situation in Guerrero , in which the plaintiff allowed the habeas statute of limitations to lapse and then attempted to “use his failure to timely pursue habeas remedies as a shield against the implications of Heck .” Id. at 705 (cleaned up). Moreover, Galanti alleges that he made complaints and took other efforts to rectify the situation while in custody , unlike Guerrero, who waited years before taking “any action at all .” Id. Accordingly, Heck does not bar this suit.

II. The District Court Erred by Ignoring Galanti’s Due Process Claim for Maximum- Sentence Deductions The district court dismissed Galanti’s claims on grounds other than Heck , which we now address. Galanti argues that the court mis constru ed his due process claim as asserting the deprivation of deductions to his minimum sentence alone and ignored his claim related to maximum

- sentence deductions . Nevada prisoners are generally sentenced to a minimum term, after which they are eligible for parole, and a maximum term, after which they are released if incarcerated or their parole expires. See Nev. Rev. Stat.G ALANTI V

. N EVADA D EP ’ T OF C ORRECTIONS 11

§§ 213.120(2), 213.1215. The district court interpreted Galanti’s FAC as asserting “that the NDOC Defendants failed to apply the good

- time credits that he earned by attending educational classes to his parole eligibility date,” or minimum sentence, “which extended his period of incarceration without due process

. ” The court did not consider whether Galanti stated a claim for deprivation of maximum

- sentence deductions.

Galanti now concedes that, to the extent his FAC asserts a claim for minimum

- sentence deductions, that claim fails because Nevada prisoners do not have a liberty interest in parole , see Moor v. Palmer , 603 F.3d 658, 661

– 62 (9th Cir. 2010), and he is not statutorily eligible for such deductions in any event because he has been convicted of a felony sex crime

. 2 However, he argues that his FAC also contains a due

2 Under Nevada law

, all prisoners are eligible for maximum

- sentence deductions, but those convicted of certain enumerated offenses including felony sex crimes

— like Galanti

— are ineligible for minimum

- sentence deductions

. See Nev. Rev. Stat. § 209.4465. The relevant provisions provide that:

7. Except as otherwise provided in subsection[] 8 ... credits earned pursuant to this section:

(a) Must be deducted from the maximum term or the maximum aggregate term imposed by the sentence, as applicable; and (b) Apply to eligibility for pa role unless the offender was sentenced pursuant to a statute which specifies a minimum sentence that must be served before a person becomes eligible for parole.

8. Credits earned pursuant to this section by an offender who has not been convicted of:12 G AL ANTI V

. N EVADA D EP ’ T OF C ORRECTIONS

process claim for deprivation of maximum

- sentence deductions, in which he has a liberty interest and for which he was eligible , and the district court erred by ignoring that claim.

Constru ed liberally

, Galanti ’s FAC contains a claim for deprivation of maximum

- sentence deductions. He alleges that his s entence “ should have expired on or about June 1 st , 2018 [rather than August 22, 2018] , and he should not have had to be on parole for 2 months and bear costs associated with it”

— referencing his maximum sentence. In his response to Defendants’ Motion to Dismiss, Galanti continued to assert that he was entitled to deductions from his “maximum term” and that his sentence should have “expired” earlier. Moreover, t hroughout his filings, Galanti reference d Nev. Rev. Stat. § 209.4465, which addresses both types of deductions. Accordingly, the district court erred by interpreting Galanti’s due process claim as asserting only deprivation of minimum

- sentence deductions and ignoring his claim for maximum

- sentence deductions.

Defendants ’ remaining arguments related to due process are premised on the district court’s erroneous interpret ation and do not address maximum

- sentence deductions

. Despite being instructed by our court to brief the issue , Defendants

... (b) A sexual offense that is punishable as a felony;

...,
apply to eligibility for parole and ... must be deducted from the minimum term or the minimum aggregate term imposed by the sentence, as applicable, unti l the offender becomes eligible for parole and must be deducted from the maximum term or the maximum aggregate term imposed by the sentence, as applicable.G ALANTI V

. N EVADA D EP ’ T OF C ORRECTIONS 13

do not respond to Galanti’s argument that Nev

. Rev

. Stat

. § 209.4465 c ontains the mandatory language necessary to

c reate a constitutionally protected liberty interest in maximum

- sentence deductions , similar to good

- time
statutes we have previously found to create liberty interests

. See Bergen v. Spaulding , 881 F.2d 719, 721 (9th Cir. 1989) ( holding Washington statute creates liberty interest) ; McFarland v. Cassady

, 779 F.2d 1426, 1428 (9th Cir. 1986) (same for similar Arizona statute)

. Rather, Defendants argue that Galanti did not have a liberty interest in parole

, which he does not dispute and is irrelevant to his maximum

sentence claim in any event

. 3 Similarly, Defendants argue that Galanti is not statutorily eligible for deductions to his parole date , which is neither disputed n or relevant

. 4 Accordingly, we reverse and remand with respect to Galanti’s due process claim.

III. Galanti Failed t o State an Equal Protection Claim Finally, Galanti claims that Defendants violated the Equal Protection Clause by treating him less favorably with respect to applying credit

- deductions due to animus against sex offenders. This claim fails because Galanti has not alleged facts support ing discrimination

. See Ariz . Dream Act Coal. v. Brewer , 855 F.3d 957, 966 (9th Cir. 2017) (“To prevail on an Equal Protection claim, plaintiffs must show that a class that is similarly situated has been treated disparately.” (cleaned up) ). He asserts that Defendants did

3 Relatedly, Defendants a rgue that the officer

- defendants are entitled to qualified immunity because “Nevada law does not provide inmates with a clearly established liberty interest in parole eligibility

, ” which is also irrelevant to Galanti’s maximum

- sentence deductions claim.

4 In their Supplemental Answeri ng Brief, D efendants concede that Galanti is eligible for ma x imum

- sentence deductions.14 G AL ANTI V

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not apply deductions to his sentence “ in a manner equal to the deductions given to various other inmate[s]” because Defendants “‘hate’ sex offenders .” But t h is conclusory statement do es not support his claim. See Ventura Mobilehome Co mms. Owners Ass’n v. City of San Buenaventura , 371 F.3d 1046, 1055 (9th Cir. 2004) (affirming dismissal of equal protection claim because “[a]side from conclusory allegations, Appellant has not

. . . alleged how [similarly situated individuals] are treated differently”).

CONCLUSION For these reasons, the district court ’s decision granting Defendants’ motion to dismiss is AFFIRMED in part

, REVERSED in part, and REMANDED

. 5

5 In light of the issues in this case, the district court should carefully consider appointing counsel for Galanti in future proceedings.