Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) TERRY STEWART; TRAVIS SCOTT;) KELLY PIERCE; PHILLIP WRIGHT;) ) and BRIAN SCHNIEDER, ) ) Defendants. ) ) JERROD LEN BOOTH,

No. CIV-02-2420-PHX-MHM (DKD) ORDER

Before the Court are Defendants' motion for summary judgment, (Doc. 55), 17 Plaintiff's motion for summary judgment, (Doc. 65), Plaintiff's Motion for Access to the 18 Courts and Sanctions, (Dkt. #63), and Plaintiff's Motion for Entry of Default. (Dkt #68). 19 I. 20 Plaintiff filed a pro se civil rights complaint (Doc. 1) pursuant to 42 U.S.C. § 1983 on 21 November 27, 2002, and an amended complaint (Doc. 5) on February 14, 2003. Plaintiff 22 filed a Second Amended Complaint (Doc. 17), seeking compensatory and punitive damages, 23 on September 23, 2003. In an order filed February 19, 2004, the Court ordered Defendants 24 Scott, Wright, Pierce and Schneider to answer Plaintiff's allegation that Defendants deprived 25 him of his right to due process of law. Doc. 20. 26 Defendants Scott, Pierce and Wright were served and filed a Motion to Dismiss 27 Second Amended Complaint on May 3, 2004. Doc. 30. Defendant Schneider was served 28
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BACKGROUND

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and joined the motion to dismiss. Doc. 41 & Doc. 42. Plaintiff filed a response (Doc. 47) to the motion to dismiss on September 16, 2004. Defendants withdrew the motion to dismiss on September 27, 2004. Doc. 48. Defendants predicated withdrawal of their motion to dismiss on the understanding that Plaintiff was stating a claim regarding "the due process afforded on three disciplinary tickets only and not staff or conditions of confinement issues surrounding those disciplinaries, as it appeared from the allegations of his complaint." Doc. 48. Defendants answered the Second Amended Complaint in a pleading docketed October 8, 2004. Doc. 50. The civil docket in this matter indicates that the parties did not engage in discovery. Defendants filed a motion for summary judgment and a separate statement of facts in support of this motion on April 13, 2005. Doc. 55 & 56. Plaintiff filed a pleading labeled a "crossmotion for summary judgment," in opposition to Defendants' motion for summary judgment (Doc. 58) on April 25, 2005. Plaintiff did not file a separate statement of facts in opposition to Defendants' motion for summary judgment. Defendant filed a reply to Plaintiff's response to the motion for summary judgment, and a response to Plaintiff's cross-motion, on May 20, 2005. Doc. 62.1 On May 31, 2005, Plaintiff filed a memorandum captioned as a motion for summary judgment. Doc. 65. II. DISCUSSION A. Plaintiff's Motion for Access to the Courts and Sanctions, (Dkt. #63), and Plaintiff's Motion for Entry of Default. (Dkt #68).

In both Motions Plaintiff appears to argue, sanctions and default judgment is 21 appropriate because Defendants have failed to plead or otherwise defend pursuant to FED. 22 R. CIV. PRO. 56 (c)(1), although it is unclear if Plaintiff is seeking default because the prison 23 did not provide a notary for the month of June. Plaintiff argues Defendants have failed to 24 plead because Plaintiff filed his cross-motion for summary judgment on April 13, 2005 and 25 Defendants did not file a response until May 20, 2005. 26 27
Plaintiff's "Reply to Defendants Response in support of His Motion for Cross Summary Judgment FRCP 56(c)(1)" at Docket No. 67 was stricken from the record pursuant to Defendants' 28 motion at Docket No. 69 and the order at Docket No. 72.
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Plaintiff's motions are without merit. In an order dated May 11, 2005, Magistrate Judge Duncan specified Defendants' response was due on May 20, 2005. Dkt. #61. Furthermore, a response to a motion for summary judgment is due thirty days after service, with three days added for mailing time. L. R. CIV. PRO 56.1(a). Accordingly, Plaintiff's motions are without merit and are denied. B. Standard for granting summary judgment

The standard for granting summary judgment is set forth in Rule 56(c), Federal Rules of Civil Procedure. Under this rule, summary judgment is properly granted when: (1) no genuine issues of material fact remain; and (2) after viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56 (2004); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53 (1986); Eisenberg v. Insurance Co., 815 F.2d 1285, 1288-89 (9th Cir. 1987). In considering a motion for summary judgment, the Court must regard as true the nonmoving party's evidence if it is supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324, 106 S. Ct. at 2548; Eisenberg, 815 F.2d at 1289. However, the non-moving party may not merely rest on the pleadings, he must produce some significant probative evidence tending to contradict the moving party's allegations, thereby creating a material question of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 2513-14 (1986). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24, 106 S. Ct. at 2553. Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id., 477 U.S. at 322, 106 S. Ct. at 2552; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The Court must consider a motion for summary judgment with all reasonable inferences favoring the nonmoving party. Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001). C. Statement of Facts -3Document 81 Filed 09/30/2005 Page 3 of 11

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Arizona Department of Corrections ("ADOC") provides that, if a prisoner violates a prison rule or policy, the disciplinary process is initiated by the preparation of a "Disciplinary Report" by an ADOC employee. Defendants' Statement of Facts ("DSOF") (Doc. 56), para. 4. ADOC policy provides that the Disciplinary Report must be completed within 24 hours of a determination that a violation may have occurred. Id., para. 5. ADOC policy requires the Disciplinary Report to include a full explanation of the facts alleged to support the charge against the inmate. Id. An inmate is notified of the pending charge by the ADOC employee, who also submits the Disciplinary Report to a shift supervisor. Id., para. 6. The shift supervisor may forward the report to the "Coordinator of Discipline." Id., para. 7. The Coordinator may process the report as alleging either a major or a minor violation of rules, and he assigns a case number, or ticket number, to the Disciplinary Report at that time. Id., para. 8. Disciplinary Reports alleging a major violation of prison rules require the Coordinator to investigate the charges alleged against the inmate. Id., para. 10. The investigation of the alleged charge includes interviewing the inmate, prison staff, and other inmates who might have information about the charge. Id., para. 11. The charged inmate may provide the investigating officer with information regarding witnesses who could give evidence in his favor. Id., para. 11. Inmates who are charged with a major violation of prison rules are entitled to a hearing before a Detention Hearing Officer. Id., para. 12. The Detention Hearing Officer ("DHO") receives the Disciplinary Report, a list of evidence and witnesses, and written witness statements, if any, prior to the hearing. Id., para. 12. The prisoner is given notice of the date and time of the hearing no less than 48 hours prior to the hearing. Id., para. 13. ADOC policy requires a DHO to preserve decorum, limit repetition, and restrict questions and answers during the hearing to issues relevant to the charge. Id., para. 15. Plaintiff asserts that, on November 6, 2002, Defendant Scott wrote Plaintiff a disciplinary ticket for disorderly conduct, referencing #02A190348. Doc. 58 at 2. Plaintiff received notice and a copy of the charge on November 13, 2002, and notice of a hearing to be conducted on November 19, 2003. DSOF, para. 52. The hearing was postponed to -4Document 81 Filed 09/30/2005 Page 4 of 11

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November 22, 2002, to allow time to further investigate the charge. Id., para. 53. Defendant Pierce, acting as DHO, conducted a hearing regarding this charge on November 22, 2002. Id., para. 55. Plaintiff appeared at the hearing and received assistance at the hearing from ADOC staff. Id., para. 56. Defendant Pierce refused Plaintiff's request to question witnesses at this hearing. Id., para. 63. During the hearing, Plaintiff "became belligerent" and was removed from the hearing. Id., para. 64. Based on the witness reports of the incident and the investigative findings, Defendant Pierce concluded that Plaintiff had committed the violation and imposed sanctions in the form of 40 hours extra duty, 10 days of disciplinary detention, suspended, and referral to reclassification. Id., para. 64-67. Plaintiff was given written notice of the DHO's findings and the basis for the findings. Id., para. 68. Plaintiff appealed the DHO's decision, which was denied. Id., para. 74. Plaintiff was given a disciplinary ticket (#02A190351) on November 9, 2002, for fighting with a cell mate. Plaintiff received notice and a copy of this charge on November 14, 2002, and received notice that a hearing regarding this charge was set for November 19, 2002. Id., para. 90. The hearing regarding this charge was rescheduled for November 22, 2002, to allow for additional time to further investigate the charge. Id., para. 91.2 Plaintiff appeared at the hearing, declined assistance, and asked to be allowed to submit questions to a witness, which request was refused. Id., para. 94-98. Plaintiff was removed from this hearing for belligerent behavior. Id., para. 100. Based on the written reports of the incident in question, Defendant Pierce, the DHO, concluded that Plaintiff had committed the violation, and sanctioned Plaintiff in the form of loss of 30 earned release credits, 40 hours of extra duty, 30 days loss of privileges, and referral to reclassification. Id., para. 102. Plaintiff was given written notice of the DHO's findings and the basis for the

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27 #02A190348 were both held on November 22, 2002, however, one hearing was conducted in the 28 Defendant Pierce.

The hearings regarding disciplinary ticket #02A190351 and disciplinary ticket

morning and one hearing was conducted in the afternoon. See DSOF, Exh. 6 and 10 to Affidavit of

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findings. Id., para. 103. Plaintiff appealed this decision, which appeal was denied. Id., para. 107. Plaintiff was given another disciplinary ticket (#02A190372) for fighting with a different cell mate on November 18, 2002. Doc. 58 at 2-3. See also Doc. 65. Plaintiff received notice and a copy of this charge, and notice that a hearing regarding this charge was scheduled for December 3, 2002. DSOF, para. 122. The hearing was postponed until December 10, 2002. Id., para. 123. A hearing regarding this charge was conducted before Defendant Pierce, acting as DHO, on December 10, 2002. Id., para. 125. Plaintiff waived his right to appear at this hearing. Id., para. 126. Based on the written witness' reports of the incident, Defendant Pierce concluded that Plaintiff had committed the alleged violation. Id., para. 130. Defendant Pierce sanctioned Plaintiff to loss of 30 earned release credits, 10 days of disciplinary detention, 40 hours of extra duty, 30 days loss of privileges and referral to reclassification. Id., para. 131. Plaintiff was given written notice of the DHO's findings and the basis for the findings. Id., para. 132. Plaintiff appealed this decision, which appeal was denied. Id., para. 134-140. Plaintiff's Second Amended Complaint alleges that he was denied his right to due process of law with regard to these three prison disciplinary proceedings. Plaintiff contends that Defendant Scott violated his right to due process by writing a "disciplinary ticket" (#2A190348), which Plaintiff alleges violated Arizona Department of Corrections ("ADOC") policy because the ticket did not contain a detailed description of Plaintiff's alleged rule violation. Plaintiff asserts that Defendant Pierce violated Plaintiff's rights by removing him from the disciplinary hearings, by failing to consider witness statements during the proceedings, and by concluding, in absentia, that Plaintiff had violated ADOC rules. Plaintiff further argues that Defendants Wright and Schneider violated his right to due process because they "upheld sanctions on disciplinary tickets that violated ADOC policy with regard to proceedings in disciplinary ticket #2A190348, ticket #2A190351, and ticket #2A190372." D. Analysis -6Document 81 Filed 09/30/2005 Page 6 of 11

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Defendants assert that they are entitled to judgment as a matter of law regarding Plaintiff's claims for relief. Defendants argue that, because the proceedings regarding disciplinary ticket #2A190351 and ticket #2A190372 resulted in the loss of Plaintiff's earned release credits, Plaintiff's claims that he was deprived of his right to due process during the proceedings regarding these tickets is barred by Edwards v. Balisok. Defendants also maintain that Plaintiff received all of the due process to which he was entitled with regard to the disciplinary proceedings regarding disciplinary ticket #2A190348, ticket #2A190351, and ticket #2A190372. Defendants further contend that the doctrine of qualified immunity shields them from Plaintiff's claims for relief. Plaintiff argues that his due process claims are not barred by Edwards v. Balisok and that Defendants are not immune from suit. The Court engages in a two-step process to determine whether a plaintiff's procedural due process rights were violated. First, the Court must determine if the plaintiff possessed a liberty interest with which the state interfered. See, e.g., Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003), cert. denied, 125 S. Ct. 43 (2004); Biggs v. Terhune, 334 F.3d 910, 913 (9th Cir. 2003). If the plaintiff had a protected liberty interest with which the state interfered, the Court must determine if the state's action was preceded by sufficient procedural and evidentiary safeguards. See Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908 (1989); Serrano, 345 F. 3d at 1078-79. The "requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003). Pursuant to the holding of Sandin v. Conner, a prisoner possesses a federal constitutionally-protected liberty interest to be free of changes in the conditions of his confinement which impose an "atypical and significant hardship ... in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300 (1995); Jackson, 353 F.3d at 755; Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000).

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Additionally, prison disciplinary proceedings are not a criminal prosecution and prison inmates are not entitled to the full panoply of due process rights afforded a criminal defendant in prison disciplinary proceedings. See Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975 (1974). To comport with the requirements of procedural due process, prison disciplinary hearings that may result in the loss of a liberty interest require advance written notice to the prisoner of the disciplinary charges; a reasonable opportunity for the prisoner to present evidence in his defense; and a written statement by the fact-finder of the evidence relied on and the reasons for the disciplinary action. See Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 2773 (1985). The findings must also be "supported by some evidence in the record." Id. Plaintiff did not have a liberty interest with regard to punishment imposed for disciplinary ticket #2A190348, because the punishment imposed was extra duty and suspended disciplinary detention, which are not atypical or significant hardships giving rise to a liberty interest protected by the Fourteenth Amendment. See May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997). With regard to the two disciplinary charges which resulted in the loss of earned release credits, Plaintiff may only succeed on his procedural due process claims seeking damages for the alleged violation if he can establish that these prison disciplinary convictions have been reversed. See Edwards v. Balisok, 520 U.S. 641, 648, 117 S. Ct. 1584, 1588-89 (1997) (concluding that a claim of deprivation of due process in prison disciplinary proceedings that necessarily implies the invalidity of the resulting punishment is not cognizable in a section 1983 suit). Plaintiff does not dispute that his appeals of his disciplinary proceedings were unsuccessful. Therefore, Plaintiff's claims, to the extent that he seeks relief regarding the disciplinary convictions resulting in the loss of earned time credits, is barred by Heck v. Humphrey, 512 U.S. 477, 483-84, 114 S. Ct. 2364, 2372 (1994), because his claims challenge the duration of his confinement. See Edwards, 520 U.S. at 647, 117 S. Ct. at 1589. Additionally, the Court concludes that Plaintiff has not produced evidence that Defendants' actions, with regard to the relevant disciplinary proceedings, did not comport with the constitutional guarantee of due process of law. Plaintiff's assertion that -8Document 81 Filed 09/30/2005 Page 8 of 11

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disciplinary ticket #2A190348 did not fully comply with prison regulations is insufficient to establish a claim for violation of his right to due process. The relevant inquiry is not "whether the prison complied with its own regulations," but whether Plaintiff was "provided with process sufficient to meet the Wolff standard." Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995). The fact that Plaintiff was physically removed from two hearings and waived his right to be present at another hearing, rendering the decisions imposed in absentia, does not state a per se claim for violation of Plaintiff's right to due process. Cf. Moody v. Miller, 864 F.2d 1178, 1181 (5th Cir. 1989) ("If, through no fault of prison officials, a prisoner is unable or refuses to attend a disciplinary hearing, due process requires no more than that the hearing be held in accordance with all of the other requirements of due process that are called for under the circumstances."). Plaintiff also contends that he was improperly denied an opportunity to call witnesses on his behalf at his disciplinary hearings. Wolff recognized only a qualified right to call witnesses, concluding that an "inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Wolff, 418 U.S. at 566, 94 S. Ct. at 2979-80. A prison disciplinary hearing officer's decision that an inmate's request to call witnesses may properly be denied as irrelevant, unnecessary, unduly prolonging the hearing, or jeopardizing of prison safety, is entitled to deference from the Court. See id.; Ponte v. Real, 471 U.S. 491, 497-98, 105 S. Ct. 2192, 2196-97 (1985); Neal v. Shimoda, 131 F.3d 818, 831 (9th Cir. 1997); Zimmerlee v. Keeney, 831 F.2d 183, 187 (9th Cir. 1987). Furthermore, the charges regarding Plaintiff's alleged infractions were supported by sufficient evidence in the record, and the conclusion that Plaintiff committed the charged offenses has some indicia of reliability and, therefore, Plaintiff's disciplinary proceedings did not violate Plaintiff's right to due process. See Superintendent, Mass. Corr. Inst., Walpole, 472 U.S. at 454, 105 S. Ct. at 2773; Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). -9Document 81 Filed 09/30/2005 Page 9 of 11

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III.

CONCLUSION Plaintiff's claims, to the extent that he seeks relief regarding the disciplinary

convictions resulting in the loss of earned time credits, is barred by Heck v. Humphrey, because his claims challenge the duration of his confinement and he does not dispute these disciplinary proceedings have been reversed or vacated. Additionally, Defendants present evidence that, with regard to each of the three disciplinary proceedings challenged by Plaintiff as violating his right to due process, Plaintiff was provided with advance written notice of the disciplinary charges; an opportunity, when consistent with institutional safety and correctional goals, for him to call witnesses and present documentary evidence in his defense, and a written statement by the DHO of the evidence relied on and the reasons for the resulting disciplinary action. Plaintiff has not met his burden of establishing that there are genuine issues of material fact with regard to whether he was provided with these protections, and therefore, Defendants are entitled to judgment as a matter of law with regard to Plaintiff's section 1983 procedural due process claims. IT IS THEREFORE ORDERED THAT Defendant's motion for summary judgment (Doc. 55) is GRANTED. Defendants are entitled to judgment as a matter of law with regard to the claims for relief stated in Plaintiff's Second Amended Complaint, which is hereby dismissed with prejudice. IT IS FURTHER ORDERED THAT Plaintiff's Motion for Access to the Courts and Sanctions is DENIED. (Dkt. #63). IT IS FURTHER ORDERED THAT Plaintiff's motion for summary judgment (Doc. 65) is DENIED.

IT IS FURTHER ORDERED THAT Plaintiff's Motion for Entry of Default. is DENIED. (Dkt #68). IT IS FURTHER ORDERED THAT, as a result of summary judgment having been granted, the Clerk of the Court shall enter judgment accordingly.

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DATED this 29th day of September, 2005.

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