Opinion
No. 69630
09-21-2018
PERCY LAVAE BACON, Appellant, v. THE STATE OF NEVADA BOARD OF PRISON COMMISSIONERS; AND JAMES COX, Respondents.
ORDER OF AFFIRMANCE
Percy Lavae Bacon appeals from a district court order granting summary judgment in a civil rights action. Eighth Judicial District Court, Clark County; Susan Johnson, Judge.
Bacon filed a complaint claiming that respondents unlawfully kept the interest generated from inmates' savings accounts. Respondents filed a motion to dismiss that the district court granted. Bacon filed an appeal, and the dismissal was reversed and remanded. Upon remand, respondents filed a motion for summary judgment, stating they were entitled by statute to pay for the maintenance charges for the inmates' savings accounts using the interest earned on the accounts. The district court granted the respondents' motion, and this appeal followed.
This court reviews a district court's order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if the pleadings and all other evidence on file demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Id. When deciding a summary judgment motion, all evidence must be viewed in a light most favorable to the nonmoving party. Id. General allegations and conclusory statements do not create genuine issues of fact. Id. at 731, 121 P.3d at 1030-31.
Bacon argues on appeal that summary judgment was improper because the district court knowingly accepted untruthful testimony from the respondents. He believes that the maintenance fee claimed by respondents is a lie because the interest generated is not a static amount. We review a district court's decision to admit or exclude evidence for abuse of discretion, and we will not disturb a district court's exercise of its discretion "absent a showing of palpable abuse." Las Vegas Metro. Police Dep't v. Yeghiazarian, 129 Nev. 760, 764-65, 312 P.3d 503, 507 (2013). Bacon makes no showing of palpable abuse on the part of the district court in accepting the testimony of prison official relating to his complaints. And he points to no evidence to challenge the determination that the maintenance fee was proper. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (stating that the appellate courts need not consider claims that are not cogently argued); see also NRS 209.241(4) (providing for deductions from earned interest on inmate bank accounts for any applicable bank charges).
Bacon also challenged the district court's disregard of his representations that he was threatened with retaliation if he filed a grievance related to the interest on his prison bank account. However, we agree with the district court's assessment that Bacon's representations were hearsay, and thus, inadmissible. See NRS 51.035; NRS 51.065.
Further, in reviewing the record, the interest earned by Bacon's account did not exceed the cost of maintaining his account, and, as such, we conclude that there is no genuine issue of material fact regarding the maintenance fees charged against Bacon's account. See McIntyre v. Bayer, 339 F.3d 1097, 1101 (9th Cir. 2003) (noting that where the costs of administering a prisoner's account exceed the interest earned, there may not be a need for just compensation).
In light of the foregoing, our review of the record and all other arguments show no genuine issue of material fact exists and summary judgment was proper. See Wood, 121 Nev. at 729, 121 P.3d at 1029. Accordingly, we
For any of Bacon's remaining arguments that are not expressly addressed above, we determined that they either lack merit or were waived when not raised below. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal."). --------
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Susan Johnson, District Judge
Percy Lavae Bacon
Attorney General/Carson City
Attorney General/Las Vegas
Eighth District Court Clerk