                                                                              FILED
                            NOT FOR PUBLICATION                                MAY 17 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JAMES RAY DAVIS,                                   No. 10-35827

              Plaintiff - Appellant,               D.C. No. 3:07-cv-00635-AC

  v.
                                                   MEMORANDUM *
STATE OF OREGON; et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                         Argued and Submitted May 7, 2012
                                 Portland, Oregon

Before: TASHIMA, TALLMAN, and IKUTA, Circuit Judges.

       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 (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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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 (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. Perrill, 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


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established and, thus, appellees would be entitled to qualified immunity in any

event. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (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.




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