Nasby v. Nevada

79 F.4th 1052

Brendan NASBY, Plaintiff-Appellant, v. State of NEVADA; James Cox; E. V. McDaniel; Adam Endel;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.

No. 21-15044

United States Court of Appeals, Ninth Circuit

Argued and Submitted May 11, 2023 Pasadena, California

Filed August 18, 2023

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding, D.C. No. 3:17-cv-00447-MMD-CLB

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.

Before: Andrew D. Hurwitz and Ryan D. Nelson, Circuit Judges, and Yvette Kane,^* District Judge.

Opinion by Judge R. Nelson;

Concurrence by Judge Hurwitz

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 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, 108 Nev. 67, 825 P.2d 578, 583 (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, 116 Nev. 215, 994 P.2d 700, 713 (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, 116 Nev. 770, 6 P.3d 1013, 1025 (2000), overruled on other grounds by Sharma v. State, 118 Nev. 648, 56 P.3d 868, 872 (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, 124 Nev. 1272, 198 P.3d 839, 850 (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 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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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 "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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and quotation marks omitted). "The party invoking federal jurisdiction bears the burden of establishing" standing. Id. at 561, 112 S.Ct. 2130.

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, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). This is because "meaningful access to the courts is the touchstone." Id. (quoting Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)). While "adequate law libraries or adequate assistance from persons trained in the law" confer meaningful access, Bounds, 430 U.S. at 828, 97 S.Ct. 1491, the access right is not "an abstract, freestanding right to a law library or legal assistance," Lewis, 518 U.S. at 351, 116 S.Ct. 2174. "[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. at 354, 116 S.Ct. 2174. The hindered claim must also be "nonfrivolous," as "[d]epriving...