Mariscal v. Skolnik et al

Filing 39

ORDER Granting 26 Motion for Summary Judgment of Parole Board Defendants. Defendants Adam Endel, T Goodsen, Susan Jackson, Dorla Salling, Mary Vieth, Mary K. Baker and Connie S. Bisbee terminated. Signed by Judge Kent J. Dawson on 9/27/11. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DAVID MARISCAL,
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Plaintiff,
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vs.
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HOWARD SKOLNIK, Director, NEVADA )
DEPARTMENT OF CORRECTIONS
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NDOC, THE NEVADA BOARD OF
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PAROLE COMMISSIONERS, Former
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CHAIRMAN, DORLA SALLING, et al,
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Defendant.
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___________________________________ )

CASE NO. 2:09-cv-02334-KJD-RJJ

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Presently before the Court is the Motion of Defendants DORLA SALLING, MARY VIETH,
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CONNIE S. BISBEE, SUSAN JACKSON, MARY K. BAKER, THOMAS GOODSEN and ADAM
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ENDEL (collectively “Parole Board Defendants”) for Summary Judgment (#26). Plaintiff has filed
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an opposition (#28) to which Movants replied (#32).
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FACTUAL BACKGROUND
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Plaintiff’s Complaint alleges civil rights violations against the moving defendants pursuant to
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42 U.S.C. Section 1983. Plaintiff was sentenced to life without the possibility of parole for first
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degree murder and to an equal and consecutive term for the use of a deadly weapon. Judgment was
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entered October 14, 1994. On April 6, 2007, Defendant was resentenced to life with the possibility

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of parole and the Parole Board considered Plaintiff for parole to his consecutive sentence on July 6,

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2007. He was there informed that the Parole Board would be able to take into consideration that this

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retroactive eligibility date to parole to his consecutive sentence was 2003. Ultimately, Plaintiff’s

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parole was denied. Plaintiff filed his Complaint on September 25, 2009.

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STANDARD FOR SUMMARY JUDGMENT

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Summary judgment may be granted if the pleadings, depositions, answers to interrogatories,

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and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

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any material fact and that the moving party is entitled to a judgment as a matter of law.

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Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All justifiable inferences

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must be viewed in light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.

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Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

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(1986). Summary judgment shall be entered “against a party who fails to make a showing sufficient

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to establish the existence of an element essential to that party’s case, and on which that party will

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bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Summary judgment shall not be granted

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if a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.

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The moving party bears the initial burden of showing the absence of a genuine issue of

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material fact. Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to set forth

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specific facts demonstrating a genuine factual issue for trial. Matsushita, 475 U.S. at 587;

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Fed.R.Civ.P. 56(e). The nonmoving party may not rest upon the mere allegations or denials of his or

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her pleadings, but he or she must produce specific facts, by affidavit or other evidentiary materials

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provided by Rule 56(e), showing there is a genuine issue for trial. Anderson, 477 U.S. at 256; Fed.R.

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Civ.P. 56(e).

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ANALYSIS

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Pursuant to Nevada Revised Statutes § 11.190(4)(e), Nevada’s period of limitations for

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personal injury is two years. The Nevada state statute of limitations for personal injury torts applies

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in a Section 1983 action. See Perez v. Seevers, 869 F.2d 425 (9th Cir. 1989). Plaintiff’s only

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argument in response to the statute is that it should be treated as a procedural rule, citing a case

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dealing with an extension of the period for service of process. However, the statute of limitations

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acts as a bar and it is well-settled that the Court has no discretion to extend it. Plaintiff’s novel legal

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argument that his right to a hearing before the Parole Board was violated, retroactive to 2003, four

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years before he was resentenced to life with the possibility of parole, is legally frivolous.

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Furthermore, there is no liberty interest in receiving parole. It is a legislative act of grace, not a

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constitutional right. Grant of parole is a discretionary act and thus, members of the Parole Board are

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immune from suit. N.R.S. § 41.032. Finally, Defendants JACKSON, BAKER and ENDEL were not

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on the Parole Board at the time and did not participate in Plaintiff’s imagined constitutional

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deprivation.

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CONCLUSION
Defendants have demonstrated that there is no genuine issue of material fact that the instant

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action is barred by Nevada’s two year period of limitations applicable to tort claims. Plaintiff has no

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due process right in being granted parole, nor does he have any constitutional right to be

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conditionally released before expiration of his sentence. Grant of parole is a discretionary act and the

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members of the Parole Board are immune from suit in exercising that discretion.

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Accordingly the Motion for Summary Judgment of Parole Board Defendants, DORLA

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SALLING, MARY VIETH, CONNIE S. BISBEE, SUSAN JACKSON, MARY BAKER, THOMAS

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GOODSEN and ADAM ENDEL (#26) is GRANTED.

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DATED this 27th day of September 2011.

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_____________________________
Kent J. Dawson
United States District Judge

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