FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP ROY GALANTI, No. 20-17332
Plaintiff-Appellant, D.C. No.
2:19-cv-01044-
v. GMN-EJY
NEVADA DEPARTMENT OF
CORRECTIONS; CLARK COUNTY OPINION
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; HOWELL,
Defendants-Appellees.
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, 2023
2 GALANTI V. NEVADA DEP’T OF CORRECTIONS
Before: MILAN D. SMITH, JR. and JOHN B. OWENS,
Circuit Judges, and XAVIER RODRIGUEZ, * 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 constitutional 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.
GALANTI V. NEVADA DEP’T OF CORRECTIONS 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 his 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 liberty
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 dismissal of the equal protection
claim because plaintiff had not alleged facts supporting
discrimination.
4 GALANTI V. NEVADA DEP’T OF CORRECTIONS
COUNSEL
Richelle 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 Nevada; 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 failing to deduct education-credits he
earned from his sentence. Defendants argue 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 unable to raise claims for
credit deductions in a petition for habeas corpus. As such,
GALANTI V. NEVADA DEP’T OF CORRECTIONS 5
this case falls 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 lawsuit, 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.
We affirm the dismissal of the equal protection claim, as
Galanti failed to allege discrimination.
BACKGROUND
Philip Roy Galanti is a former Nevada state prisoner.
While incarcerated, he completed several education courses,
which entitled him to sentence deductions under Nevada
law. He alleges that, with the deductions he earned from
obtaining his high school diploma and two vocational
certificates, his sentence should have expired on June 1,
2018. However, because NDOC officials did not apply the
deductions, his sentence did not expire until August 22,
2018.
After he was released and his parole ended, Galanti sued
NDOC and several NDOC officials pro se. In his First
Amended Complaint (FAC), Galanti raises two claims.
First, he asserts that Defendants’ failure to apply earned
credit-deductions 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 access
6 GALANTI V. NEVADA DEP’T OF CORRECTIONS
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 any constitutional violations, 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. Construing Galanti’s due process claim
as being based on the failure 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 does not create a constitutionally
protected liberty interest in parole. The court dismissed 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
Although 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 an 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 not at issue in this appeal.
GALANTI V. NEVADA DEP’T OF CORRECTIONS 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 due 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 authorized 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 that 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 applies to claims for
unconstitutional deprivation of good-time credits, if a
favorable judgment would imply the invalidity of such
8 GALANTI V. NEVADA DEP’T OF CORRECTIONS
deprivation. See Edwards v. Balisok, 520 U.S. 641, 648
(1997).
After Heck, five Justices in Spencer v. Kemna, 523 U.S.
1 (1998), “suggested 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 challenge to his parole revocation
was mooted by his release from custody. See Spencer, 523
U.S. at 7–13. But five Justices noted that the petitioner
could bring such a claim under § 1983 without satisfying
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. Id.
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 in 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
unlawfully revoked his credits. Id. at 874. The 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,
GALANTI V. NEVADA DEP’T OF CORRECTIONS 9
his § 1983 action could be maintained. See id. at 875–76.
We also “emphasize[d] that [the] holding 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 have since recognized 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
relief was unavailable, distinguishing the case from
Nonnette on two grounds. See 442 F.3d 702–05. 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). Second,
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 years to file suit, allowing the statute
of limitations 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 GALANTI V. NEVADA DEP’T OF CORRECTIONS
This case is much more 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. Given the timeline Galanti alleges, 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.
And if his sentence expired during the pendency of his case,
which is very likely given the timeframe, it would have
been dismissed 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 misconstrued 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.
GALANTI V. NEVADA DEP’T OF CORRECTIONS 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 parole 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 GALANTI V. NEVADA DEP’T OF CORRECTIONS
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.
Construed liberally, Galanti’s FAC contains a claim for
deprivation of maximum-sentence deductions. He alleges
that his sentence “should have expired on or about June 1st,
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, throughout his filings, Galanti
referenced 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 interpretation
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, until 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.
GALANTI V. NEVADA DEP’T OF CORRECTIONS 13
do not respond to Galanti’s argument that Nev. Rev. Stat.
§ 209.4465 contains the mandatory language necessary to
create 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 nor relevant. 4
Accordingly, we reverse and remand with respect to
Galanti’s due process claim.
III. Galanti Failed to 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 supporting 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 argue 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 Answering Brief, Defendants concede that
Galanti is eligible for maximum-sentence deductions.
14 GALANTI V. NEVADA DEP’T OF CORRECTIONS
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 this conclusory
statement does not support his claim. See Ventura
Mobilehome Comms. 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.