CARLA BALDWIN, Magistrate Judge.
This action is a pro se civil rights action filed pursuant to 42 U.S.C. § 1983 by a former state prisoner. Plaintiff paid the full filing fee in this matter. (ECF No. 8). The Court entered a screening order on April 28, 2014. (ECF No. 29). The screening order imposed a 90-day stay and the Court entered a subsequent order in which the parties were assigned to mediation by a court-appointed mediator. (ECF No. 29, 34). The Office of the Attorney General has filed a status report indicating that settlement has not been reached and informing the Court of its intent to proceed with this action. (ECF No. 40).
For the foregoing reasons,
1. The Clerk of the Court shall electronically
2. Service must be perfected within ninety (90) days from the date of this order pursuant to Fed. R. Civ. P. 4(m).
3. Subject to the findings of the screening order (ECF No. 3), within twenty-one (21) days of the date of entry of this order, the Attorney General's Office shall file a notice advising the Court and Plaintiff of: (a) the names of the defendants for whom it accepts service; (b) the names of the defendants for whom it does not accept service, and (c) the names of the defendants for whom it is filing the last-known-address information under seal. As to any of the named defendants for whom the Attorney General's Office cannot accept service, the Office shall file, under seal, but shall not serve the inmate Plaintiff the last known address(es) of those defendant(s) for whom it has such information. If the last known address of the defendant(s) is a post office box, the Attorney General's Office shall attempt to obtain and provide the last known physical address(es).
4. If service cannot be accepted for any of the named defendant(s), Plaintiff shall file a motion identifying the unserved defendant(s), requesting issuance of a summons, and specifying a full name and address for the defendant(s). For the defendant(s) as to which the Attorney General has not provided last-known-address information, Plaintiff shall provide the full name and address for the defendant(s).
5. If the Attorney General accepts service of process for any named defendant(s), such defendant(s) shall file and serve an answer or other response to the complaint within sixty (60) days from the date of this order.
6. Henceforth, Plaintiff shall serve upon defendant(s) or, if an appearance has been entered by counsel, upon their attorney(s), a copy of every pleading, motion or other document submitted for consideration by the Court. Plaintiff shall include with the original document submitted for filing a certificate stating the date that a true and correct copy of the document was mailed or electronically filed to the defendants or counsel for the defendants. If counsel has entered a notice of appearance, Plaintiff shall direct service to the individual attorney named in the notice of appearance, at the physical or electronic address stated therein. The Court may disregard any document received by a district judge or magistrate judge which has not been filed with the Clerk, and any document received by a district judge, magistrate judge, or the Clerk which fails to include a certificate showing proper service.
7. This case is no longer stayed.
COMES NOW Mark Manibusan, and, pursuant to the provisions of 42 U.S.C. § 1983, 28 U.S.C. § 1331, 28 U.S.C. § 1367(a), 28 U.S.C. § 2201, and the Constitution of the State of Nevada, files this Third Amended Civil Rights Complaint seeking damages.
1. Mr. Manibusan has been deprived of his constitutional rights to protection from ex post facto laws, freedom of speech, due process of law, freedom from unreasonable seizure, freedom from cruel and unusual punishment, and equal protection under the Fourth, Fifth, Eighth, and Fourteenth Amendments and The Constitution of the State of Nevada, by the Defendants, and each of them.
2. In this action, Mr. Manibusan seeks redress, in the form of money damages, for these various constitutional violations, under 42 U.S.C. § 1983, and the Constitution of the State of Nevada. Further, Mr. Manibusan seeks redress under tort theories under applicable federal and state law.
3. Mr. Manibusan seeks damages from Defendants, along with the reasonable attorney's fees and costs which may be incurred in the prosecution of this action.
4. Mr. Manibusan further seeks a permanent injunction and declaratory relief to address these constitutional violations.
5. This Court has jurisdiction under 28 U.S.C. 1331, et seq., for civil claims arising under the Constitution and laws of the United States. Therefore, this Court has original subject matter jurisdiction over Mr. Manibusan's claims brought under 42 U.S.C. § 1983.
6. This Court also has jurisdiction over Mr. Manibusan's claims arising under the laws of the State of Nevada, pursuant to 28 U.S.C. § 1367(a).
7. Defendant the Nevada Department of Corrections is an entity of the State of Nevada, and venue is therefore proper in the District of Nevada, under 28 U.S.C. § 1391(b)(1).
8. The request for reasonable attorney's fees and costs is predicated upon 42 U.S.C. § 1988(b).
9. The prayer for relief is predicated upon 28 U.S.C. § 2201 and Fed. R. Civ. P. 38.
10. At all relevant times, Mr. Manibusan was a citizen of the United States of America, and of the State of Nevada, and resided within the State of Nevada.
11. At all relevant times, Defendant the Nevada Department of Corrections ("NDOC") was an entity of the State of Nevada, with its headquarters at 5500 Snyder Avenue, Bldg. 17, P.O. Box 7011, Carson City, Nevada, 89702.
12. Defendant James Dzurenda is the Director of the Nevada Department of Corrections, and upon information and belief, a citizen of the United States of America and of the State of Nevada.
13. Defendant James Cox is the former Director of the Nevada Department of Corrections, and upon information and belief, a citizen of the United States of America and of the State of Nevada.
14. Defendant Renee Baker is the Warden of Lovelock Correctional Center, and upon information and belief is a citizen of the United State of America and of the State of Nevada, and at all relevant times resided within the State of Nevada.
15. Defendant William Sandie is an Associate Warden at the Lovelock Correctional Center, and upon information and belief is a citizen of the United State of American and of the State of Nevada, and at all relevant times resided within the State of Nevada.
16. Defendant Robert Legrand is the former Warden of Lovelock Correctional Center, and upon information and belief is a citizen of the United States of America and of the State of Nevada, and at all relevant times resided within the State of Nevada.
17. Rhonda Larcen is an employee or contractor of the Nevada Department of Corrections, and upon information and belief is a citizen of the United States of America and of the State of Nevada, and at all relevant times resided within the State of Nevada.
18. Dewayne Deal is an employee or contractor of the Nevada Department of Corrections, and upon information and belief is a citizen of the United States of America and of the State of Nevada, and at all relevant times resided within the State of Nevada.
19. Cathy Baker is an employee or contractor of the Nevada Department of Corrections, and upon information and belief is a citizen of the United States of America and of the State of Nevada, and at all relevant times resided within the State of Nevada.
20. Dwayne Baze is an employee or contractor of the Nevada Department of Corrections, and upon information and belief is a citizen of the United States of America and of the State of Nevada, and at all relevant times resided within the State of Nevada.
21. Tara Carpenter is an employee or contractor of the Nevada Department of Corrections, and upon information and belief is a citizen of the United States of America and of the State of Nevada, and at all relevant times resided within the State of Nevada.
22. Megan D. McClellan is an employee or contractor of the Nevada Department of Corrections, and upon information and belief is a citizen of the United States of America and of the State of Nevada, and at all relevant times resided within the State of Nevada.
23. Doe Defendants are individuals believed to be employees or contractors of the NDOC or private entities hired by the NDOC to carry out NDOC functions who will be identified by Mr. Manibusan as their identities become known to him by means of discovery.
24. Roe Defendants are entities believed to be hired by the NDOC to carry out NDOC functions who will be identified by Mr. Manibusan as their identities become known to him by means of discovery.
25. On or about June 3, 2007, the Nevada Legislature passed Assembly Bill ("AB") 510, which, in part, had the effect of changing how prison time credits were calculated for certain offenders.
26. For many offenders, AB 510 had the effect of increasing the amount of credits they received. For example, AB 510 increased the credit one receives for completing a G.E.D. from 30 to 60 days, for a high school diploma, from 60 to 90 days, and for a first associate degree, from 90 to 120 days.
27. However, in other instances, AB 510 had the effect of dramatically decreasing the amount of credits prisoners received by changing the aspect of the sentence to which those credits are applied.
28. In Nevada, nearly all prison sentences are defined as a range, where the lower end of the range indicates the soonest a prisoner may be eligible for parole, and the upper end of the range indicates the maximum sentence. In Nevada, the parole eligibility date must not represent a sentence more than 40% of the maximum sentence, so common prison sentences in Nevada are: 2-5 years, 4-10 years, 8-20 years, and so on.
29. For those convicted for certain offenses which occurred on or after July 1, 2007, AB 510 had the effect of applying statutory and other credits to the maximum sentence, rather than the parole eligibility date. These crimes included:
30. The bill was signed by the then Governor on or about June 14, 2007.
31. AB 510 went into effect on July 1, 2007.
32. On or about January 25, 2006, at or near a residence located at 2273 Ripresa Place, Henderson Nevada 89052, Mr. Manibusan attempted to, or did digitally penetrate a minor then under 14 years of age.
33. On or about March 11, 2006, at or near a residence located at 2273 Ripresa Place, Henderson Nevada 89052, Mr. Manibusan attempted to, or did digitally penetrate a minor then under 14 years of age.
34. On or about April 15, 2006, at or near a residence located at 2273 Ripresa Place, Henderson Nevada 89052, Mr. Manibusan attempted to, or did digitally penetrate a minor then under 14 years of age.
35. On or about October 11, 2008, Mr. Manibusan was arrested by members of the Henderson Police Department.
36. Arising from the October 11, 2008 arrest, Mr. Manibusan was eventually charged with two counts of sexual assault with a minor under the age of 14, and three counts of lewdness with a child under the age of 14, violations of Nev Rev. Stat. §§ 200.364, 200.366, and 201.230, respectively, in Eighth Judicial District Court Case 08C249742.
37. On or about December 23, 2008, Mr. Manibusan and the State of Nevada agreed to a negotiated resolution of 08C249742, the terms of which required Mr. Manibusan to plead guilty to one count of attempt sexual assault with a minor under 14 years of age, a violation of Nev. Rev. Stat. §§ 193.330, 200.364 and .366.
38. As part of the negotiated resolution, Mr. Manibusan and the State of Nevada stipulated to a custodial sentence of 8 to 20 years to be served in the Nevada Department of Corrections ("NDOC").
39. The Guilty Plea Agreement in 08C249742 alleges that the conduct complained of took place between January 1, 2006, and October 11, 2008.
40. In fact, Mr. Manibusan pleaded guilty based on the conduct in early 2006, discussed in paragraphs 36-38, supra.
41. On or about February 5, 2009, Mr. Manibusan was adjudged guilty of attempt sexual assault with a minor under 14 years of age, in violation of Nev. Rev. Stat. §§ 193.330, 200.364, and 200.366, was sentenced to the stipulated 8 to 20-year sentence in the NDOC and given credit for 116 days already served.
42. From approximately February 2009 to June, 2009, Mr. Manibusan was held at High Desert State Prison for processing.
43. Eventually, on or about June 2009, Mr. Manibusan was transferred to Lovelock Correctional Center where he remained incarcerated until on or about October 15, 2017.
44. While incarcerated at Lovelock Correctional Center, Mr. Manibusan's good-time and other statutory credits under Nev. Rev. Stat. § 209.4465 were miscalculated, after AB 510 passed.
45. In fact, Defendants have taken the same actions against Mr. Manibusan that they have taken against countless others. Defendants were notified on or about November 15, 2010, by way of legislative audit, that they were failing to correctly calculate and apply credits following AB 510 and that by so doing they were failing to bring prisoners to parole hearings in a timely fashion. See, generally, Legislative Audit, November 15, 2010, a true and correct copy of which is attached hereto as Exhibit ("Ex.")
46. The legislative audit found that Defendant NDOC failed to correctly update its computer systems and software to correctly calculate and apply credits earned by inmates following the enactment of AB 510, with the effect being that "certain inmates [were] granted parole based on incorrect eligibility dates [and] were released from prison later than their actual parole eligibility dates." Id., at 7.
47. On or about December 2, 2011, Mr. Manibusan became concerned that his statutory, good time, and other earned credits may not be applied correctly to his sentence and wrote to Rene Baker inquiring whether they could meet to review whether the credits were being correctly applied.
48. Thereafter, Mr. Manibusan immediately began contacting various officials and employees at Lovelock Correctional Center, asking them variously to inquire into his case because his credits appeared to be miscalculated.
49. Each of these individuals refused his requests, or following their inquiry, refused to act.
50. Frequently, employees, officials, or contractors of Defendants would threaten Mr. Manibusan that if he did not stop pursuing the appropriate calculation and application of his statutory and other credits, they would "put him in the hole," — a euphemism common in prisons for threatening an inmate with solitary confinement.
51. As the result of these threats, Mr. Manibusan periodically stopped or delayed protesting the calculation or application of his credits, until a new caseworker or other contact person was assigned to him, and he felt safe to renew his efforts.
52. On or about May 1, 2013, Mr. Manibusan informed the NDOC, by one or more of their employees or contractors, of the miscalculation, and was incorrectly told that because he was arrested on October 11, 2008, his credits were therefore correctly calculated under AB 510.
53. In fact, under a striking similar set of facts, the Nevada Supreme Court, in Vonseydewitz v. Legrand, Nevada Supreme Court Case No. 66159, June 24, 2015, ordered the Warden to subtract the statutory credits under Nev. Rev. Stat. § 209.4465 from the minimum term required to be served before a Vonseydewitz was eligible to go before the parole board.
54. Defendants, and each of them, either maintained a policy of incorrectly calculating or applying statutory and other credits to inmates of the NDOC or failed to maintain a policy of correctly calculating or applying statutory credits.
55. On or before April 8, 2016, NDOC had become aware of the decision in Vonseydewitz and had consulted the Attorney General for guidance on the issue. The Attorney General purportedly indicated to NDOC that the Vonseydewitz decision was not binding and that NDOC was not compelled to conform to the holding for any other similarly situated inmates.
56. By April 8, 2016, Defendants had instituted a de facto policy of refusing to follow Nevada law as explained by the Nevada Supreme Court in Vonseydewitz.
57. Mr. Manibusan filed an informal grievance on or about June 15, 2016, which was denied on or about June 22, 2016.
58. On or about July 20, 2016, Mr. Manibusan went before the Parole Board, but his parole was subsequently denied.
59. On or about June 21, 2016, Mr. Manibusan filed a Petition for Writ of Habeas Corpus in the Eleventh Judicial District Court, in Pershing County, Nevada, alleging that his credits were being calculated incorrectly and that his parole eligibility and expiration date were both being incorrectly calculated. See, generally, Petition for Writ of Habeas Corpus, Eleventh Judicial District Court Case No. PI 16-1018, Ex. 2. That Petition was eventually dismissed as moot, as Mr. Manibusan had already appeared before the Parole Board, which decision was ultimately affirmed by the Nevada Court of Appeals on or about October 11, 2017.
60. On or about July 27, 2016, Mr. Manibusan again contacted NDOC employees or contractors regarding his earned credits, was again refused, and was told that he should seek his recourse through the court system.
61. Mr. Manibusan then filed a first level grievance on or about August 1, 2016, which was later denied, on or about September 6, 2016.
62. Mr. Manibusan then filed a second level grievance, on or about September 8, 2016, which was also denied, on or about December 14, 2016.
63. On or about November 30, 2016, Mr. Manibusan attempted to schedule a meeting with Rene Baker of the NDOC regarding his meritorious credits. Instead, Mr. Manibusan was informed that he must speak to his caseworker.
64. On or about July, 2017, Mr. Manibusan went before the Parole Board again, and at that time his parole was granted.
65. Mr. Manibusan was transferred back to High Desert State Prison on or about October 15, 2017 and released on or about October 30, 2017.
66. Ultimately, Mr. Manibusan was released from custody on or about October 30, 2017.
67. Throughout his time in prison, Mr. Manibusan earned numerous credits for participating in various programming, including, but not limited to:
68. Under his sentence, Mr. Manibusan was eligible for parole after 8 years, or 2,922 days.
69. By October 31, 2012, he had earned 2,896 credits, meaning that if his credits had properly been applied to his parole eligibility, Mr. Manibusan would have been eligible for parole early in November 2012, and therefore would have had a parole hearing approximately June of 2012, as it was then the practice of the Parole Board to have a parole hearing approximately five months before an offender was eligible to parole, so that the person could actually parole on the date they were eligible to, while still allowing time for all necessary programming and preparations to occur. In fact, Mr. Manibusan was not seen by the parole board until June 20, 2016 — about four years later than he should have been.
70. However, even if he had not been timely paroled, Mr. Manibusan's sentence, with appropriate credits correctly applied, would have expired approximately six- and one-half years after he was incarcerated — on or about July 2015 — or, more than two years before he was eventually released.
71. By refusing to properly calculate and apply the statutory, good time, and other credits Mr. Manibusan earned, Defendants imprisoned Mr. Manibusan for a length of time longer than that which was lawful.
72. By so doing, Defendants violated established rights by undertaking conduct known to be unlawful and in violation of Mr. Manibusan's rights, and they are not entitled to any immunity — whether from suit or damages.
73. Paragraphs 1-72 are incorporated herein by this reference as though fully restated.
74. Defendants, and each of them, acted under color of law, and their actions violated Mr. Manibusan's right to be free from unreasonable seizure under the Fourth Amendment.
75. Defendants intentionally incorrectly calculated or applied Mr. Manibusan's statutory and other credits.
76. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
77. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
78. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
79. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
80. Paragraphs 1-79 are incorporated herein by this reference as though fully restated.
81. Mr. Manibusan is, as is every United States citizen, entitled to certain liberty interests under the Fifth Amendment. Included among these is the right not to "be deprived of life, liberty, or property, without due process of law[.]"
82. Defendants, and each of them, while acting under color of law, intentionally incorrectly calculated or applied Mr. Manibusan's statutory and other credits.
83. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
84. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
85. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
86. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
87. Paragraphs 1-86 are incorporated herein by this reference as though fully restated.
88. The Eighth Amendment protects individuals from cruel and unusual punishment.
89. Defendants, and each of them, while acting under color of law, intentionally incorrectly calculated or applied Mr. Manibusan's statutory and other credits.
90. Mr. Manibusan was arbitrarily detained by Defendants, who, acting under color of law, refused to grant him a timely parole hearing, and refused to release him from prison although he was entitled to be released.
91. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
92. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
93. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
94. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
95. Paragraphs 1-94 are incorporated herein by this reference as though fully restated.
96. Mr. Manibusan is, as is every United States citizen, entitled to certain liberty interests under the Fourteenth Amendment. Included among these is the right not to be deprived "of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws."
97. Defendants intentionally incorrectly calculated or applied Mr. Manibusan's statutory and other credits.
98. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
99. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
100. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
101. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
102. Paragraphs 1-101 are incorporated herein by this reference as though fully restated.
103. Mr. Manibusan is, as is every United States citizen, entitled to certain liberty interests under the Fourteenth Amendment. Included among these is the right not to be deprived "of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws."
104. Defendants intentionally incorrectly calculated or applied Mr. Manibusan's statutory and other credits.
105. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
106. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
107. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
108. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
109. Paragraphs 1-108 are incorporated herein by this reference as though fully restated.
110. Defendant NDOC had a duty to use reasonable care in the training, supervision, and retention of their employees and to ensure that their employees are fit for their positions by implementing policies and procedures designed to prevent constitutional violations and other wrongful acts by its employees, such as those perpetrated against Mr. Manibusan.
111. Defendant NDOC breached this duty by failing to properly train its officers regarding the implementation of AB 510, and later by refusing to correct its policies and procedures despite clear explanations from the Nevada Supreme Court as to how AB 510 should be applied to those in Mr. Manibusan's circumstances.
112. Because of the failure to adequately implement appropriate policies and procedures, Defendant NDOC has negligently trained, supervised, and retained employees who have violated the constitutional rights of Mr. Manibusan.
113. Defendant NDOC is not entitled to discretionary immunity because its lack of adequate training and supervision resulted in a violation of Mr. Manibusan's constitutional rights, and likely is resulting in further ongoing violations of the constitutional rights of those still incarcerated in NDOC facilities.
114. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
115. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
116. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
117. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
118. Paragraphs 1-117 are incorporated herein by this reference as though fully restated.
119. Defendants threatened Mr. Manibusan with solitary confinement if he continued to advance his claims regarding the proper application of his statutory and other credits.
120. Mr. Manibusan was thereby dissuaded from advancing his claims by other means and escalating his claims through the prison administrative system.
121. The actions of Defendants, who at all times acted under color of law, therefore deprived Mr. Manibusan of his right to free speech under the First Amendment.
122. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
123. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
124. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
125. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
126. Paragraphs 1-125 are incorporated herein by this reference as though fully restated.
127. U.S. Const. Art. I § 10, cl. 1., is commonly referred to as the Ex Post Facto Clause, and "forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred.
128. As applied to Mr. Manibusan, AB 510 violates the Ex Post Facto Clause, as it resulted in him serving a sentence several years longer than he should have served under the pre-AB 510 sentence calculation.
129. Although AB 510 did not actually change the sentence to which Mr. Manibusan was exposed, it had that effect as it was applied — rather than having credits applied toward his earliest eligibility for parole, under AB 510 his credits were applied only to the expiration date, in other words, his maximum sentence.
130. Defendants, by their enforcement of AB 510 in this manner against Mr. Manibusan, have violated the Ex Post Facto Clause.
131. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
132. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
133. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
134. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
135. Paragraphs 1-134 are incorporated herein by this reference as though fully restated.
136. Defendants, and each of them, acted under color of law, and their actions violated Mr. Manibusan's right to be free from unreasonable seizure under the Constitution of the State of Nevada.
137. Defendants intentionally incorrectly calculated or applied Mr. Manibusan's statutory and other credits.
138. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
139. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
140. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
141. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
142. Paragraphs 1-141 are incorporated herein by this reference as though fully restated.
143. Mr. Manibusan is, as is every Nevada citizen, entitled to certain liberty interests under Art. 1 § 8(5) of the Constitution of the State of Nevada. Included among these is the right not to "be deprived of life, liberty, or property, without due process of law[.]"
144. Defendants, and each of them, while acting under color of law, intentionally incorrectly calculated or applied Mr. Manibusan's statutory and other credits.
145. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
146. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
147. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
148. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
149. Paragraphs 1-148 are incorporated herein by this reference as though fully restated.
150. Defendants threatened Mr. Manibusan with solitary confinement if he continued to advance his claims regarding the proper application of his statutory and other credits.
151. Mr. Manibusan was thereby dissuaded from advancing his claims by other means and escalating his claims through the prison administrative system.
152. The actions of Defendants, who at all times acted under color of law, therefore deprived Mr. Manibusan of his right to free speech under Art. 1 § 9 of the Constitution of the State of Nevada.
153. Defendants, and each of them, while acting under color of law, intentionally incorrectly calculated or applied Mr. Manibusan's statutory and other credits.
154. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
155. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
156. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
157. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
158. Paragraphs 1-157 are incorporated herein by this reference as though fully restated.
159. Mr. Manibusan was confined in the Lovelock Correctional Center and other NDOC facilities long after he should have been released.
160. Mr. Manibusan was confined to those facilities by Defendants.
161. Mr. Manibusan was aware of his confinement and was held against his will.
162. These actions were taken contrary to the laws of the State of Nevada.
163. Defendants, and each of them, while acting under color of law, intentionally incorrectly calculated or applied Mr. Manibusan's statutory and other credits.
164. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
165. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
166. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
167. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
168. Paragraphs 1-167 are incorporated herein by this reference as though fully restated.
169. Under the Constitution of the State of Nevada, Art. 1 § 15, "No ... ex post facto law ... shall ever be passed[.]"
170. As applied to Mr. Manibusan, AB 510 constitutes an ex post facto law, as it resulted in him serving a sentence several years longer than he should have served under the pre-AB 510 sentence calculation.
171. Although AB 510 did not actually change the sentence to which Mr. Manibusan was exposed, it had that effect as it was applied — rather than having credits applied toward his earliest eligibility for parole, under AB 510 his credits were applied only to the expiration date, in other words, his maximum sentence.
172. Defendants, by their enforcement of AB 510 in this manner against Mr. Manibusan, have violated the Nevada prohibition against ex post facto laws.
173. By virtue of the actions of Defendants, Mr. Manibusan spent approximately an extra four years in prison before he was allowed before the Parole Board.
174. By virtue of the actions of Defendants, Mr. Manibusan was held in prison for approximately two years longer than he could lawfully have been.
175. As a direct and proximate result of these actions by the Defendants, Mr. Manibusan has suffered damages in an amount subject to proof, and is entitled to receive from Defendants monetary, compensatory, and punitive damages.
176. The actions or omissions of Defendants have required Mr. Manibusan to engage the services of attorneys to vindicate his Constitutional and other rights by prosecuting this action, and Mr. Manibusan is entitled to recover his reasonable attorney's fees, and costs.
WHEREFORE, Mr. Manibusan respectfully prays for the following relief:
177. An award of monetary damages, compensatory and punitive, with liability to be assessed against the Defendants jointly and severally, together with prejudgment interest in an amount to be calculated;
178. the reasonable attorney's fees and costs incurred in the prosecution of this claim;
179. a permanent injunction requiring Defendants to correctly calculate the statutory credits owed to any inmates similarly situated; and
180. any further relief this Court deems appropriate.
All of which is respectfully submitted this 15th day of April, 2019.
