Brendan Nasby v. State of Nevada ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENDAN NASBY, No. 21-15044
Plaintiff-Appellant, D.C. No.
3:17-cv-00447-
v. MMD-CLB
STATE OF NEVADA; JAMES COX;
E. V. MCDANIEL; ADAM ENDEL; OPINION
DEBRA BROOKS; RENEE BAKER,
Warden; HOWARD SKOLNIK;
QUENTIN BYRNES; TARA
CARPENTER; WILLIAM SANDIE;
ROBERT LEGRAND, Warden, SAC
#49; HAROLD BYRNE, SAC #49;
ADAM WATSON, SAC #49;
MICHAEL FLETCHER, SAC #49,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted May 11, 2023
Pasadena, California
Filed August 18, 2023
2 NASBY V. STATE OF NEVADA
Before: Andrew D. Hurwitz and Ryan D. Nelson, Circuit
Judges, and Yvette Kane, * District Judge.
Opinion by Judge R. Nelson;
Concurrence by Judge Hurwitz
SUMMARY **
Prisoner Civil Rights / Access to the Courts
Affirming the district court’s summary judgment in
favor of Nevada prison officials, the panel held that plaintiff,
a Nevada prisoner, lacked standing to pursue a claim that the
prison officials denied him meaningful access to the courts
under the First Amendment.
Plaintiff alleged that the practice of requiring lockdown
inmates to use a paging system to request law library
materials—instead of physically visiting the law library—
deprived him of access to the courts because the paging
system required inmates to request the specific source by
name, and thereby prevented him from discovering a Nevada
Supreme Court decision that supported his claim for post-
conviction relief. Specifically, plaintiff, who was convicted
by a jury of first-degree murder, argued that the Nevada
Supreme Court’s decision in Nika v. State, 198 P.3d 839, 850
(Nev. 2008), resurrected his habeas claim related to a jury
*
The Honorable Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, 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.
NASBY V. STATE OF NEVADA 3
instruction on mens rea, but because of the paging system he
did not learn of Nika until seven years after it was decided,
at which point he had already filed three unsuccessful habeas
petitions. Upon discovering Nika, plaintiff filed additional
petitions in 2016 and 2019, which were denied.
The panel held that because plaintiff could not show
actual injury—the hindrance of a nonfrivolous underlying
legal claim—he lacked standing. Plaintiff offered no reason,
beyond speculation, to think that the Nevada courts would
have reached a different decision had he filed a habeas claim
within a year of Nika instead of seven years later. The
Nevada Court of Appeal rejected plaintiff’s 2016 habeas
claim for a reason unrelated to the delay, finding that the
evidence presented at trial was sufficient to establish beyond
a reasonable doubt that he acted with the requisite mens
rea. His habeas claim therefore would have failed no matter
when it was raised. Because the claim had no chance of
success, he did not suffer an actual injury sufficient to confer
standing to pursue an access-to-courts claim.
Concurring in the result, Judge Hurwitz agreed with the
majority that the district court’s judgment should be
affirmed. In his view, plaintiff had Article III standing to
raise a claim arising out of the alleged denial of access to the
prison library, but the claim failed on the merits.
4 NASBY V. STATE OF NEVADA
COUNSEL
Curt Cutting (argued), Supervising Attorney; Mark A.
Kressel, and Rebecca G. Powell; Horvitz & Levy LLP,
Burbank, California; Tyler Lisea and Mary Beyer (argued),
Certified Law Students; Pepperdine Caruso School of Law
Ninth Circuit Appellate Advocacy Clinic, Malibu,
California; for Plaintiff-Appellant.
Chris W. Davis (argued), Deputy Attorney General; Frank
A. Toddre II, Senior Deputy Attorney General; D. Randall
Gilmer, Chief Deputy Attorney General; Aaron D. Ford,
Attorney General; Nevada Attorney General’s Office, Las
Vegas, Nevada; Gregory L. Zunino, Deputy Solicitor
General; Nevada Attorney General’s Office, Carson City,
Nevada; for Defendants-Appellees.
Athul K. Acharya, Public Accountability, Portland, Oregon,
for Amicus Curiae Public Accountability.
NASBY V. STATE OF NEVADA 5
OPINION
R. NELSON, Circuit Judge:
Brendan Nasby, a Nevada prisoner, sued Nevada prison
officials for denying him meaningful access to the courts
under the First Amendment. The district court granted
summary judgment to the prison officials on jurisdictional
and merits grounds. Because Nasby cannot show actual
injury—the hindrance of a nonfrivolous underlying legal
claim—he lacks standing.
I
A jury convicted Nasby of first-degree murder in
October 1999. Nasby was housed in a lockdown unit at Ely
State Prison (ESP) from 2006 to 2014, before his transfer to
Lovelock Correctional Center (LCC), where he remains.
ESP and LCC require lockdown inmates to use a paging
system instead of physically visiting the law library. To
access materials through the paging system, lockdown
inmates fill out request forms that are reviewed by inmate
library workers. If the forms are filled out correctly, library
workers retrieve the requested legal materials for delivery to
the lockdown units. At ESP, inmate law clerks are
prohibited from visiting lockdown inmates. And at both
facilities, inmate library workers receive little training and
may not give legal advice. Any inmate with a high school
diploma and a discipline-free record for six months is
eligible to work in the law library.
Although the request forms include a “Topical Search”
section, or allow research by “issue,” Nasby produced
affidavits from ESP and LCC inmate library workers stating
that the only way to receive legal materials through the
6 NASBY V. STATE OF NEVADA
paging system was to request the specific source by name.
He also produced evidence that his requests were rejected
for lack of specificity. In Nasby’s view, the specificity
required by the paging system made it impossible to discover
new materials an inmate did not already know about.
Nasby argues that the paging system deprived him of
access to the courts by preventing him from discovering a
Supreme Court of Nevada decision that supported his claim
for post-conviction relief. When Nasby was convicted in
1999, the mens rea jury instruction for first-degree murder
stated: “If the jury believes from the evidence that the act
constituting the killing has been preceded by and has been
the result of premeditation, no matter how rapidly the
premeditation is followed by the act constituting the killing,
it is wilful [sic], deliberate and premeditated murder.”
Kazalyn v. State, 825 P.2d 578, 583 (Nev. 1992). Under the
Kazalyn instruction, premeditation includes willfulness and
deliberation, making premeditation the only required mens
rea in practice. See id.In 2000, after Nasby’s conviction but before his direct
appeal, the Supreme Court of Nevada rejected the Kazalyn
instruction because it “defin[ed] only premeditation and
fail[ed] to provide deliberation with any independent
definition.” Byford v. State, 994 P.2d 700, 713 (Nev. 2000).
Byford detailed new jury instructions that separately defined
willfulness, deliberation, and premeditation. See id. at 714.
In his direct appeal, Nasby asserted that Byford
invalidated his conviction obtained under the Kazalyn
instruction. While his appeal was pending, however, the
Supreme Court of Nevada held that Byford applied only
prospectively. Garner v. State, 6 P.3d 1013, 1025 (Nev.
2000), overruled on other grounds by Sharma v. State, 56
NASBY V. STATE OF NEVADA 7
P.3d 868, 872 (Nev. 2002). The Supreme Court of Nevada
accordingly affirmed Nasby’s conviction because Byford did
not apply.
Nasby filed his first habeas petition in state court in
2002, again arguing that the district court erred by using the
Kazalyn instruction. The state court cited Garner to deny
his petition, and the Supreme Court of Nevada affirmed.
Nasby then filed a federal habeas petition that was stayed to
permit him to exhaust state proceedings, but which was later
denied.
In 2008, the Supreme Court of Nevada partially reversed
Garner, explaining that “Garner erroneously afforded
Byford complete prospectivity because as a matter of due
process, the change effected in Byford applies to convictions
that were not yet final at the time of the change.” Nika v.
State, 198 P.3d 839, 850 (Nev. 2008). According to Nasby,
Nika resurrected his Byford claim. Unfortunately for Nasby,
the parties agree that he was required to re-raise his Byford
claim within one year after Nika was decided. 1
But Nasby did not learn about Nika until seven years
after it was decided. At that point, Nasby had already filed
two more unsuccessful habeas petitions in the Nevada
courts. Upon discovering Nika, Nasby filed a fourth habeas
petition in 2016 based on Byford. See Nasby v. State, No.
70626, 2017 WL 3013073, at *1 (Nev. Ct. App. July 12,
2017). The Nevada trial court denied his petition as
1
Re-raising the claim in another state habeas petition within one year of
Nika’s issuance would not have rendered Nasby’s petition timely—it
would have allowed him to argue that he established good cause to
excuse the late filing of a second or successive habeas petition. See
Rippo v. State, 423 P.3d 1084, 1097 (Nev. 2018) (citing Nev. Rev. Stat.
§ 34.726 (2020)).
8 NASBY V. STATE OF NEVADA
procedurally barred by laches and as untimely, successive,
and an abuse of the writ, concluding that Nasby failed to
show good cause and prejudice to overcome the procedural
bar. See id. The Nevada Court of Appeals affirmed on the
same grounds and also because, “[e]ven assuming
inadequate access to legal materials constituted good cause
to re-raise the jury instruction issue in this petition, “the
evidence presented at trial was sufficient to establish beyond
a reasonable doubt that” Nasby had the requisite mens rea
and could not, therefore, establish actual prejudice or a
fundamental miscarriage of justice. Id. at *2. Nasby filed a
fifth post-conviction petition in 2019 that was denied for
similar reasons. See Nasby v. State, No. 78744-COA, 2020
WL 1848262, at *3 (Nev. Ct. App. Apr. 10, 2020).
Nasby then sued multiple ESP and LCC employees in
federal court under 42 U.S.C. § 1983. He sought an
injunction for defendants to supplement the paging system
with someone trained in the law, or allow inmates access to
the prison’s law library; a declaratory judgment that he was
denied meaningful access to the courts; and damages.
The parties cross-moved for summary judgment. The
district court adopted the magistrate judge’s report and
recommendation, concluding that Nasby did not show actual
injury sufficient to confer standing, that Heck v. Humphrey,
512 U.S. 477 (1994), barred his claim, and that his access-
to-courts claim otherwise failed on the merits. Nasby timely
appealed.
II
We have jurisdiction under 28 U.S.C. § 1291 and review
a grant of summary judgment de novo. Desire, LLC v.
Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021).
Summary judgment is appropriate when the movant shows
NASBY V. STATE OF NEVADA 9
“no genuine dispute as to any material fact” and
“entitle[ment] to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
III
The judicial power of federal courts only extends to
“cases” or “controversies.” U.S. Const. art. III, § 2, cl. 1. A
critical component of the case-or-controversy requirement is
standing. Standing requires, as relevant here, an “injury in
fact,” which is the “invasion of a legally protected interest
[that] is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical.” Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and
quotation marks omitted). “The party invoking federal
jurisdiction bears the burden of establishing” standing. Id.
at 561.
To show actual injury for an access-to-courts claim, an
inmate must “demonstrate that the alleged shortcomings in
the library or legal assistance program hindered his efforts to
pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351
(1996). This is because “meaningful access to the courts is
the touchstone.” Id. (quoting Bounds v. Smith, 430 U.S. 817,
823 (1977)). While “adequate law libraries or adequate
assistance from persons trained in the law” confer
meaningful access, Bounds, 430 U.S. at 828, the access right
is not “an abstract, freestanding right to a law library or legal
assistance,” Lewis, 518 U.S. at 351. “[T]he inmate therefore
must go one step further and demonstrate that the alleged
shortcomings in the library or legal assistance program
hindered his efforts to pursue a legal claim.” Id. Only the
hindrance of “direct appeals from the convictions for which
they were incarcerated,” “habeas petitions,” and “civil rights
actions” implicate the access right recognized in Bounds. Id.10 NASBY V. STATE OF NEVADA
at 354. The hindered claim must also be “nonfrivolous,” as
“[d]epriving someone of a frivolous claim . . . deprives him
of nothing at all . . . .” Id. at 353 n.3. A claim is nonfrivolous
in this context if the plaintiff can “show that the ‘arguable’
nature of the underlying claim is more than hope.”
Christopher v. Harbury, 536 U.S. 403, 416 (2002).
Nasby’s Byford-based habeas claim is not arguable
because raising it earlier would not have changed the
outcome of his state habeas petition. 2 Although he claims
injury from the seven-year delay in discovering Nika, the
Nevada courts rejected his fourth petition for a reason
unrelated to the delay. That denial renders his habeas claim
based on Byford not “arguable” and therefore, in this
context, frivolous.
Nasby’s 2016 petition faced multiple hurdles: it was
untimely, successive, and had to overcome a presumption of
prejudice to Nevada. See Nasby, 2017 WL 3013073, at *1.
For all these reasons, the 2016 petition “was procedurally
barred absent a demonstration of good cause and actual
prejudice.” Id. The Nevada Court of Appeals “assum[ed]
inadequate access to legal materials constituted good cause
2
Importantly, because Article III standing “must exist at the
commencement of the litigation,” Friends of the Earth, Inc. v. Laidlaw
Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000), and because standing
requires an “injury [that] would likely be redressed by judicial relief,”
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021), Nasby’s
standing to pursue his § 1983 claim necessarily turned on whether, at the
time he commenced this action, he had suffered an injury redressable by
judicial relief. But he did not because, when he filed this action, he
already knew that the delay in discovering Nika had no impact on his
ability to pursue an arguable habeas claim based on Byford. “We thus
are dealing with a class of cases in which the issue of standing and the
merits . . . are inseparable.” Walters v. Edgar, 163 F.3d 430, 435 (7th
Cir. 1998).
NASBY V. STATE OF NEVADA 11
to re-raise the jury instruction issue in this petition.” Id. at
*2. But it affirmed the denial of habeas relief for lack of
actual prejudice because “the evidence presented at trial was
sufficient to establish beyond a reasonable doubt” that Nasby
acted with the requisite mens rea. Id. 3
Even if Nasby instantly learned of Nika and timely
asserted his revived Byford claim, his petition would have
faced (at minimum) the time bar: Nevada law requires
post-conviction petitions to be “filed within 1 year after
entry of the judgment of conviction or, if an appeal has been
taken from the judgment, within 1 year after the appellate
court . . . issues its remittitur.” Nev. Rev. Stat. § 34.726(1);
accord Nasby, 2017 WL 3013073, at *1. A petitioner filing
outside a year can excuse the delay with good cause,
meaning “[t]hat the delay is not the fault of the petitioner;
and [t]hat the dismissal of the petition as untimely will
unduly prejudice the petitioner.” § 34.726(1); accord
Nasby, 2017 WL 3013073, at *1. Assuming Nika’s change
in law excuses the delay, Nasby still would have failed the
undue prejudice requirement. Because “the evidence
presented at trial was sufficient to establish beyond a
reasonable doubt” that Nasby had the requisite mens rea
even under Byford, he cannot show undue prejudice. Nasby,
2017 WL 3013073, at *2. His Byford-based habeas claim
would have failed no matter when it was raised. Because the
claim had no chance of success, it was not arguable. See
Christopher, 536 U.S. at 416; see also Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 89 (1998) (claims
3
For the same reason, the court concluded that no fundamental
miscarriage of justice would result from the failure to consider Nasby’s
claims. See Nasby, 2017 WL 3013073, at *2.
12 NASBY V. STATE OF NEVADA
“completely devoid of merit” do not create standing). Thus,
any delay in raising the claim did not injure him.
Nasby maintains that his claim is arguable and that the
denial of his 2016 petition is irrelevant because a
nonfrivolous claim need not succeed. But this ex ante
approach ignores the Supreme Court’s guidance that
frivolousness tracks the hindered claim’s value: “Depriving
someone of an arguable (though not yet established) claim
inflicts actual injury because it deprives him of something of
value—arguable claims are settled, bought, and sold.”
Lewis, 518 U.S. at 353 n.3. The Seventh Circuit elaborated
on this guidance: “In other words, even if the claim, had it
been pressed to judgment, would have failed, there is always
a chance, provided the claim is not frivolous, that it would
have been settled before then.” Walters, 163 F.3d at 434.
Given the key requirement of a nonfrivolous claim, the
Seventh Circuit cautioned that the practical settlement value
of “pure nuisance suits founded on completely frivolous
claims” should be disregarded. Id.
While a court may pause before concluding that an
untested claim is meritless, here we know the value of
Nasby’s claim. The Nevada courts rejected Nasby’s Byford-
based habeas claim for a reason unrelated to the delay,
confirming that he did not lose “something of value.” See
Lewis, 518 U.S. at 353 n.3. A delay in filing a meritless
claim is not an actual injury. Cf. Cromartie v. Shealy, 941
F.3d 1244, 1258 (11th Cir. 2019) (no actual injury because
underlying claims were barred by precedent); White v.
Kautzky, 494 F.3d 677, 681 (8th Cir. 2007) (underlying
claims were frivolous based on “applicable statutory law and
controlling case precedent”).
NASBY V. STATE OF NEVADA 13
Nasby offers no reason, beyond speculation, to think that
the Nevada courts would have reached a different decision
had he filed his Byford-based habeas claim within a year of
Nika instead of seven years later—indeed, the Nevada courts
have conclusively held that no other result would have
obtained. As his rejected claim is no longer arguable, it is
therefore frivolous as that term is used in the context of an
access-to-courts claim. We accordingly hold that Nasby
lacks standing and do not reach the remaining issues on
appeal.
IV
Because Nasby did not suffer an actual injury sufficient
to confer standing to pursue an access-to-courts claim, the
district court properly granted summary judgment to the
defendants.
AFFIRMED.
Hurwitz, Circuit Judge, concurring in the result:
I agree with my colleagues that the district court’s
judgment should be affirmed. But I arrive there through a
slightly different route. I believe that Nasby had Article III
standing to raise a claim arising out of the alleged denial of
access to the prison library, but that claim fails on the merits.
The starting point in the standing analysis is the Supreme
Court’s opinion in Lewis v. Casey, which holds that a
prisoner has standing if a denial of access “hindered his
efforts” to pursue a “nonfrivolous” claim. 518 U.S. 343,
351–53 (1996). The majority does not hold that Nasby, who
contended that his state petition for post-conviction relief
14 NASBY V. STATE OF NEVADA
was untimely because he was unable to learn of a relevant
change in Nevada law, fails on the “hindrance” ground.
Instead, it holds that Nasby lacked Article III standing
because the claim he was hindered from pursuing was
frivolous. 1 Op. at Part III. It is on that point that I believe
the majority goes astray.
The majority relies on the Nevada Court of Appeals
decision, which, although finding Nasby’s petition for post-
conviction relief time-barred, also rejected it on the merits.
Nasby v. State, No. 70626, 2017 WL 3013073 (Nev. Ct.
App. July 12, 2017). But the fact that Nasby’s claim failed
on the merits does not render it frivolous. Were that the case,
we would be required “to try a case within a case . . . purely
in order to resolve the threshold issue of standing.” Walters
v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998).
Rather, to establish standing, “a plaintiff need not show
that a claim with which a defendant interfered would have
prevailed, but only that it was not frivolous.” Simkins v.
Bruce, 406 F.3d 1239, 1244 (10th Cir. 2005); see also Lewis,
518 U.S. at 353 n.3 (requiring only that the hindered claim
be “arguable”). And the Nevada appellate court’s order
makes plain that the claim Nasby raised was far from
frivolous. Indeed, the court agreed with Nasby that his jury
had not been properly instructed on the elements of first-
degree murder, Nasby v. State, 2017 WL 3013073, at *1, but
1
Some courts have held that even if a denial of access to the prison
library impedes a plaintiff’s ability to bring a non-frivolous claim, there
is no Lewis hindrance as long as the case is eventually heard on the
merits, and the prisoner is not prejudiced in presenting it. See Simkins v.
Bruce, 406 F.3d 1239, 1244 (10th Cir. 2005); Deleon v. Doe, 361 F.3d
93, 94 (2d Cir. 2004) (per curiam). Because the majority does not
address that issue, neither do I.
NASBY V. STATE OF NEVADA 15
denied relief because it found that the error did not prejudice
him, id. at *2.
Of course, the fact that a litigant has standing does not
mean that he will be successful. The gravamen of Nasby’s
42 U.S.C. § 1983 complaint is that the denial of access to the
prison library caused his petition for post-conviction relief
to be untimely, and his federal habeas petition to be
procedurally barred. But, in the end, although affirming the
state trial court’s determination that the petition was
untimely, the Nevada appellate court alternatively rejected it
on the merits. Nasby v. State, 2017 WL 3013073, at *1–2.
And, in rejecting Nasby’s 28 U.S.C. § 2254 habeas corpus
petition, the federal habeas court, although finding a
procedural default, also addressed the merits of his
instructional-error claim and found no unreasonable
application of federal law by the Nevada courts. Nasby v.
McDaniel, No. 3:07-cv-00304-LRH-WGC, 2022 WL
980235, at *24–26 (D. Nev. Mar. 30, 2022). A § 1983 action
cannot be used to collaterally attack Nasby’s criminal
conviction, see Heck v. Humphrey, 512 U.S. 477, 484–86
(1994), or the district court’s judgment in the habeas suit.
Nasby is therefore in precisely the place he would have been
absent the challenged hindrance—his non-frivolous claims
have been considered by all courts before which he was
entitled to raise them and rejected by those courts on the
merits. I therefore concur in the result.