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Nicodemus v. Lampert

Supreme Court of Wyoming

October 30, 2014

KENNETH DALE NICODEMUS, Appellant (Plaintiff),
v.
ROBERT LAMPERT, Director, Wyoming Department of Corrections; EDDIE WILSON, Warden, Wyoming State Penitentiary; and DOTTI WIXSON, Appellees (Defendants)

Representing Appellant: Pro se.

Representing Appellees: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Susan G. O'Brien, Senior Assistant Attorney General.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

OPINION

Page 672

DAVIS, Justice.

[¶1] Inmate Kenneth Nicodemus appeals from the denial of a Wyoming Rule of Civil Procedure 60(b) motion for relief from a district court order that dismissed a civil suit against three employees of the Wyoming Department of Corrections (DOC). We affirm.

ISSUES

[¶2] Nicodemus raises two issues, which we restate as follows:

1. Did the district court abuse its discretion by ignoring Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo. 2013) ( Bear Cloud II ), when it denied his Rule 60(b) motion?

2. Did his failure to receive the defendants' response to his motion deprive him of due process?

FACTS

[¶3] In 1992, Nicodemus pled guilty to two counts of first-degree murder and one count of felony larceny, for which he was sentenced to two consecutive life sentences and a sentence of eight to ten years to be served consecutively to the life sentences. Approximately five years later, while serving the first life sentence, he attempted to escape from the Wyoming State Penitentiary. A conviction for that offense netted Nicodemus an additional sentence of two to four years, to be served concurrently with his first life sentence.[1]

[¶4] In 2010, the legislature amended Wyo. Stat. Ann. § 7-16-205(a) by creating a new paragraph (i) dealing with withholding from a prisoner's earnings:

Unless the prisoner is serving a sentence of death or life without the possibility of parole or is subject to mandatory savings under W.S. 25-13-107(b)(i), ten percent (10%) shall be credited to ...

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