James Ray DAVIS, Plaintiff-Appellant, v. State of OREGON; et al., Defendants-Appellees, 472 F. App'x 846

MEMORANDUM Even assuming that James Ray Davis’s § 1983 claims are not precluded by the settlement agreement in Davis’s habeas action or Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), such claims fail because Davis does not raise a genuine issue of material fact that his constitutional rights were violated. Davis fails to raise a genuine issue of material fact that the appellees knew that his presentence incarceration credits had been improperly calculated or were deliberately indifferent to a risk of miscalculation, as needed to show a violation of his Eighth Amendment rights.

See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.1985) (en banc). Davis also fails to raise a genuine issue of material fact that the appellees investigated his complaints inadequately or deprived him of an opportunity to be heard in violation of his Fourteenth Amendment due process rights. Cf. Alexander v. Pemil, 916 F.2d 1392, 1398 (9th Cir.1990); Haygood, 769 F.2d at 1357.

The calculation of Davis’s sentence involved only an application of state law to undisputed facts, and thus did not trigger a duty to conduct an investigation into disputed facts as in Alexander. See Alston v. Read, 663 F.3d 1094, 1099 (9th Cir.2011). And, unlike in Haygood, the appellees were acting according to Oregon Department of Corrections policies that had been developed in consultation with outside counsel. Additional process would not have achieved anything because each side’s position was clear.

Moreover, given the circumstances of the sentence calculation dispute, including the fact that legal counsel assisted in drafting the policy, even assuming that a constitutional violation can be established, the law was not clearly established and, thus, appellees would be entitled to qualified immunity in any event.

See Ashcroft v. alKidd, — U.S.-, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (noting that an official’s conduct violates clearly established law only when “the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right” (internal markings omitted)). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.