Kille, Sr. v. Bisbee ( 2014 )

 Parole Board defendants moved the district court to dismiss the claims
against them in both their individual and official capacities for failure to
state a claim under NRCP 12(b)(5), and the district court granted the
motion, concluding that Kille failed to state a cognizable § 1983 claim and
that the Parole Board defendants were entitled to immunity. Following
the resolution of his claims against the State defendants, Kille filed this
appeal.
With regard to the NRCP 12(b)(5) dismissal of the Parole
Board defendants,' because the district court relied on matters outside of
the pleadings, we construe the dismissal order as one granting summary
judgment. See Witherow v. State Bd. of Parole Comm'rs, 123 Nev. 305,
307-08, 167 P.3d 408, 409 (2007). We review a grant of summary
judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d
1026, 1029 (2005).
Preliminarily, while Kille contends that his amended
complaint did not assert federal claims under § 1983, such that the district
court erred in dismissing the Parole Board defendants based on federal
law, his complaint invoked jurisdiction under both § 1983 and NRS
41.031. As a result, Kille's argument in this regard lacks merit.
Kille's ,sC 1983 claims
To the extent that Kale asserts § 1983 claims against the
Parole Board defendants in their official capacities, those claims
necessarily fail because state officials are not "persons" within the
"While Kille purports to challenge the grant of summary judgment
to the State defendants on appeal, his arguments in this regard are raised
for the first time on appeal, and thus, we do not consider his challenge to
that order. See In re AMERCO Derivative Litig., 127 Nev. , n.6,
252 P.3d 681, 697 n.6 (2011).
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meaning of the term as it is used in 42 U.S.C. § 1983. See Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989). With regard to Kille's § 1983
claims against these defendants in their individual capacities, Kille must
show that the Parole Board defendants acted under the color of state law
to deprive him of a right protected by the constitution or laws of the
United States. 2 Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988);
Butler ex rel. Biller v. Bayer, 123 Nev. 450, 458, 168 P.3d 1055, 1061
(2007). But because Kille had no constitutional due process rights
attached to his parole hearing, or being released on parole, and no such
statutory rights were in place at the time of the parole hearing, Kille failed
to identify a cognizable federal or constitutional right that was violated,
and thus, summary judgment was also proper on these claims. See NRS
213.10705 (providing that release on parole is act of grace by the state and
that no person has a right to parole); Greenholtz v. Inmates of Neb. Penal
& Corr. Complex, 442 U.S. 1, 7 (1979) (holding that an inmate has no
constitutional due process right to be released on parole when the state's
parole statutes only provide a possibility of parole); see also State v. Eighth
Judicial Din. Court, 118 Nev. 140, 153, 42 P.3d 233, 242 (2002) ("The
threshold inquiry in a § 1983 claim is whether the plaintiff has identified a
right cognizable under the statute.").
2 Although the district court held, in resolving these claims, that
state officials could not be sued in their individual capacities under 42
U.S.C. § 1983, that conclusion is erroneous. See State v. Eighth Judicial
Din. Court, 118 Nev. 140, 153, 42 P.3d 233, 241-42 (2002) (recognizing
that plaintiffs may bring 42 U.S.C. § 1983 claims against state officials in
their individual capacities). Nonetheless, we may affirm the district
court's rejection of these claims if we conclude that the right result was
reached, albeit for the wrong reasons. See Saavedra-Sandoval v. Wal-
Mart Stores, Inc., 126 Nev. 245 P.3d 1198, 1202 (2010).
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Similarly, Kille's arguments that his rights were violated
when he was not brought before the Parole Board on the first day he was
eligible for parole, and that he was not allowed to be present at the parole
board hearing, present witnesses, and present a case on his own behalf fail
because Kille did not possess any such rights. 3 See Greenholtz, 442 U.S. at
7. And to the extent that Kille asserts that his equal protection rights
were violated, he failed to produce any evidence creating a genuine issue
with regard to whether "the defendants acted with an intent or purpose to
discriminate against the plaintiff based upon membership in a protected
class," and thus, this argument lacks merit. Barren v. Harrington, 152
F.3d 1193, 1194 (9th Cir. 1998). Accordingly, the district court did not err
in granting summary judgment on Kille's § 1983 claims. 4
NRS 41.031 based claims
To the extent that Kille alleged violations of Nevada state and
constitutional law under NRS 41.031 based on the denial of his parole,
NRS 213.10705 expressly declares the grant of parole to be an act of grace
3 Kille'sparole hearing occurred on September 10, 2008, at which
time NRS 213.130, which granted inmates certain rights at parole
hearings, had been suspended by the Legislature, see Nev. Stat., ch. 6, § 1,
at 5-7; S.B. 4, 24th Special Session (Nev. June 30, 2008) (suspending
inmates' rights at parole hearings); State ex rel. Bd. of Parole Comm'rs v.
Morrow, 127 Nev. „ 255 P.3d 224, 227 (2011) (discussing the
enactment and suspension of NRS 213.130), and NRS 213.131 had not yet
been enacted (originally enacted as of May 20, 2011, Nev. Stat., ch. 23, § 3,
at 67; A.B. 18, 76th Leg. (Nev. May 20, 2011)).
4 With regard to Kille's challenge to the rejection of his conspiracy
claims, because he had no right to parole, such that no illegal action took
place in its denial, his conspiracy claims necessarily fail. See Nunnery v.
Eighth Judicial Dist. Court, 124 Nev. 477, 480, 186 P.3d 886, 888 (2008)
(recognizing that conspiracy requires an agreement to do something
unlawful).
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and provides that no person has a right to be released on parole, and he
had no other statutory parole rights. See Nev. Stat., ch. 6, § 1, at 5-7; S.B.
4, 24th Special Session (Nev. June 30, 2008); Morrow, 127 Nev. at , 255
P.3d at 227. As a result, the Parole Board defendants were entitled to
judgment as a matter of law on these claims. See Weakland v. Bd. of
Parole Comm'rs, 100 Nev. 218, 219-20, 678 P.2d 1158, 1160 (1984)
(recognizing that Nevada's statutory parole scheme did not create a
constitutionally cognizable liberty interest). And with regard to Kille's
state-law-based equal protection arguments, these assertions lack merit as
Kale failed to identify how he was treated differently from other inmates
or how his equal protection rights were otherwise violated. See Zamora v.
Price, 125 Nev. 388, 395, 213 P.3d 490, 495 (2009) (holding that "Noth the
United States and Nevada Constitutions' equal protections clauses are
implicated when a law treats similarly situated people differently"). In
light of the foregoing, we affirm the district court's decision because the•
Parole Board defendants were entitled to judgment as a matter of law.
It is so ORDERED. 5
-AAA. J.
Hardesty
J.
J.
5 We have considered Kille's remaining arguments and conclude that
they are without merit.
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cc: Hon. James Todd Russell, District Judge
David August Kille, Sr.
Attorney General/Carson City
Carson City Clerk
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