McNeil v. Molnar

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 4 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL MCNEIL, No. 24-2733

D.C. No.

Plaintiff - Appellee, 2:18-cv-01594-RFB-BNW

v.

MEMORANDUM*

DAVE MOLNAR, Investigator

General; WILLIAM GLASS,

Sergeant; DWIGHT NEVEN,

Warden; QUENTIN BYRNE, Deputy

Director,

Defendants - Appellants,

and

ATTORNEY GENERAL OF THE STATE

OF NEVADA,

Defendant.

Appeal from the United States District Court

for the District of Nevada

Richard F. Boulware, II, District Judge, Presiding

Argued and Submitted March 6, 2025

Las Vegas, Nevada

Before: RAWLINSON, MILLER, and DESAI, Circuit Judges.

Dissent by Judge MILLER.

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

Appellants Dave Molnar, William Glass, Dwight Neven, and Quentin Byrne

(collectively, Appellants) appeal the district court’s denial of qualified immunity in

a § 1983 action brought by Appellee Michael McNeil (McNeil), a prisoner

incarcerated within the Nevada Department of Corrections (NDOC). McNeil

asserts due process violations arising from a disciplinary hearing. McNeil

principally alleges that Glass, who presided over the hearing, did not permit him to

call a witness during the hearing. The district court determined that (1) McNeil

had a liberty interest in avoiding disciplinary segregation, (2) genuine disputes of

material fact existed as to whether Appellants violated McNeil’s due process

rights, and (3) McNeil’s right to call witnesses at the hearing was clearly

established. We have jurisdiction to review the denial of qualified immunity

pursuant to 28 U.S.C. § 1291, and we affirm.

“We review the district court’s conclusions regarding qualified immunity de

novo and consider all disputed facts in the light most favorable to the nonmoving

party. . . .” Williams v. City of Sparks, 112 F.4th 635, 642 (9th Cir. 2024) (citation

and internal quotation marks omitted). Prison officials are entitled to qualified

immunity “unless the plaintiff raises a genuine issue of fact showing (1) a violation

of a constitutional right, and (2) that the right was clearly established at the time of

the defendant’s alleged misconduct.” Alexander v. Nguyen, 78 F.4th 1140, 1144

(9th Cir. 2023) (citation, alterations, and internal quotation marks omitted).

2 24-2733

1. Prisoners are entitled to due process protections during disciplinary

hearings, but “procedural protections adhere only where the deprivation implicates

a protected liberty interest.” Brown v. Oregon Dep’t of Corr., 751 F.3d 983, 987

(9th Cir. 2014). Inmates have a liberty interest in avoiding certain conditions of

confinement “if the challenged condition imposes atypical and significant hardship

on the inmate in relation to the ordinary incidents of prison life.” Ashker v.

Newsom, 81 F.4th 863, 887 (9th Cir. 2023) (citation and internal quotation marks

omitted). We look to three considerations in determining whether conditions are

atypical and significant:

1) whether the challenged condition mirrored those conditions

imposed upon inmates in administrative segregation and protective

custody, and thus comported with the prison’s discretionary authority;

2) the duration of the condition and the degree of restraint imposed;

and 3) whether the state’s action will invariably affect the duration of

the prisoner’s sentence.

Id. (citation omitted).

McNeil has a liberty interest in avoiding the conditions of disciplinary

segregation because the conditions imposed were atypical and significant when

compared to administrative segregation at the prison. McNeil alleges that he was

housed in solitary confinement 23 hours per day, was not allowed any visitation for

one year, and was allowed out of his cell only for three showers per week, medical

appointments, and hearings, among other conditions. By contrast, inmates in

Administrative Segregation are allowed contact visits and a minimum of seven

3 24-2733

hours of exercise per week. McNeil was sentenced to disciplinary segregation for

24 months but was released from segregation after eight months, following reviews

of his sentence.

The conditions McNeil faced are analogous to the conditions faced by the

inmate in Brown, who was housed in solitary confinement for “more than twenty-

three hours per day,” denied interpersonal contact, and denied access to the prison

and law libraries, group religious worship, and educational opportunities, among

other restrictions. 751 F.3d at 985. McNeil’s visitation conditions were even more

restrictive than those in Brown because McNeil was not allowed any visitors for

one year, while the inmate in Brown received “two non-contact visits per month.”

Id. at 985. Taken together, and compared to administrative segregation at the

prison, McNeil’s loss of all visitation rights and the other restrictive conditions of

his solitary confinement implicated a liberty interest. See id. at 988. Accordingly,

procedural due process protections adhered to McNeil’s disciplinary hearing. See

id. at 987.1

2. As discussed, McNeil had a due process right to call a witness to

effectively present his defense. See Wolff v. McDonnell, 418 U.S. 539, 566 (1976).

1

Our dissenting colleague would distinguish Brown as clearly established

precedent. However, to be clearly established, precedent need not be “on all fours

with the facts at issue.” Bird v. Dzurenda, 131 F.4th 787, 790 (9th Cir. 2025)

(citation and internal quotation marks omitted).

4 24-2733

Glass violated this right by not permitting McNeil to question the witness at the

hearing. The fact that Glass questioned the witness is insufficient to satisfy due

process because McNeil should have been afforded the opportunity to question the

witness himself. See Melnik v. Dzurenda, 14 F.4th 981, 986 (9th Cir. 2021).

Prisoners do not have an unfettered right to call witnesses, and prison officials may

limit that right if they proffer a “legitimate penological reason.” Id. (citation

omitted). But Glass proffered no legitimate penological reason for depriving

McNeil of the opportunity to personally question his desired witness.

Additionally, McNeil alleged that Molnar withheld requested evidence and

directed Glass to find him guilty. See id. at 986–97. McNeil also asserts that

during the appeals process, Neven and Byrne both ratified Glass’s unconstitutional

conduct by affirming the discipline imposed, in violation of McNeil’s due process

rights. These allegations support a conclusion that McNeil’s due process rights

were violated. See Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 798 (9th Cir.

2018) (explaining that supervisors may be liable for their “acquiescence in the

constitutional deprivation”).

3. McNeil’s right to call a witness at his disciplinary hearing and present

evidence was clearly established by Wolff, 418 U.S. at 566 and Mitchell v. Dupnik,

75 F.3d 517, 525 (9th Cir. 1996). Accordingly, the district court properly denied

qualified immunity. See Melnik, 14 F.4th at 990.

5 24-2733

AFFIRMED.

6 24-2733

FILED

SEP 4 2025

McNeil v. Molnar, et al., No. 24-2733

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MILLER, Circuit Judge, dissenting:

Michael McNeil, a Nevada prison inmate, alleges that his disciplinary

proceeding deprived him of due process. But it was not clearly established that the

eight months of disciplinary segregation that he served as a result of that

proceeding gave rise to a protected liberty interest. For that reason, the defendant

officers were entitled to qualified immunity, and I would reverse the district court’s

decision denying their motion for summary judgment.

“The first inquiry in every due process challenge is whether the plaintiff has

been deprived of a protected interest in ‘property’ or ‘liberty.’” American Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (quoting U.S. Const. amend. XIV,

§ 1). An inmate can bring a due process claim based on a disciplinary proceeding

“only where the deprivation implicates a protected liberty interest—that is, where

the conditions of confinement impose an ‘atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.’” Brown v. Oregon Dep’t

of Corr., 751 F.3d 983, 987 (9th Cir. 2014) (quoting Sandin v. Conner, 515 U.S.

472, 484 (1995)). “[T]here ‘is no single standard’ for determining when

circumstances are atypical and significant.” Ashker v. Newsom, 81 F.4th 863, 887

(9th Cir. 2023) (quoting Johnson v. Ryan, 55 F.4th 1167, 1195 (9th Cir. 2022)).

To overcome qualified immunity, McNeil must show not only that the

defendants violated his due-process right but also that the right was clearly

established at the time. See Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). And that

clearly established right must not be defined “at a high level of generality.” Id.

McNeil has identified no case that is “‘particularized’ to the facts of” his

disciplinary segregation that clearly establishes that its conditions were atypical

and significant. White v. Pauly, 580 U.S. 73, 79 (2017) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). He argues that Brown does the job. 751 F.3d

983. He points out that the inmate in that case, like him, was punished with more

than 23 hours a day of solitary confinement and with removal of most privileges.

See id. at 988. But in Brown, we declined to resolve whether those same features,

which “might apply to most solitary-confinement facilities,” were atypical and

significant. Id. Instead, it was “the duration of Brown’s confinement”—27 months

with no periodic review—that was the “crucial factor.” Id. Although McNeil was

sanctioned with 24 months of disciplinary segregation, it is undisputed that he

ultimately spent less than eight months in that form of confinement and that his

sanction was reviewed twice during that period. Given our reliance in Brown on

the duration of disciplinary segregation and the lack of review, that case did not

clearly establish that segregation that lasts less than a third as long, combined with

periodic review, gives rise to a protected liberty interest.

2

Because the existence of McNeil’s protected liberty interest was not clearly

established at the time of the defendants’ alleged violations, I would hold that the

defendants are entitled to qualified immunity.

3