Ackerman v. Gittere

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT OCT 8 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JIN ACKERMAN, No. 23-2193

D.C. No.

Plaintiff - Appellee, 3:20-cv-00337-MMD-CSD

District of Nevada,

v. Reno

GITTERE; et al., ORDER

Defendants - Appellants.

Before: O'SCANNLAIN and SILVERMAN, Circuit Judges.1

The petition for rehearing (Docket Entry No. 46) is granted in part. The

memorandum disposition filed June 5, 2025 (Docket Entry Nos. 42, 48) is

withdrawn and is replaced by a new memorandum disposition filed concurrently

with this order.

The petition for rehearing en banc is denied as moot. No further petitions

for rehearing or rehearing en banc may be filed.

1

Judge Wallace is unavailable to consider this petition but he has authorized

Judges O’Scannlain and Silverman to proceed.

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 8 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JIN ACKERMAN, No. 23-2193

D.C. No.

Plaintiff - Appellee, 3:20-cv-00337-MMD-CSD

v.

MEMORANDUM*

GITTERE; REUBART; MOSKOFF;

DENNIS HOMAN; DZURENDA;

SANDOVAL; COOKE (SANDOVAL);

CHARLES DANIELS, NDOC Director;

BRIAN WILLIAMS Sr.,

Defendants - Appellants.

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, District Judge, Presiding

Submitted October 8, 2025**

Before: WALLACE, O'SCANNLAIN, and SILVERMAN, Circuit Judges.

***

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

***

Judge Wallace is unavailable to participate in the amendment of the

panel’s prior memorandum disposition but he has authorized Judges O’Scannlain

and Silverman to proceed.

Defendants-Appellants, various Nevada Department of Corrections

employees, appeal from the district court’s denial of their motion for summary

judgment on Defendants’ qualified immunity defense and on Plaintiff Appellee

Ackerman’s due process and equal protection claims insofar as they preclude

Defendants’ qualified immunity defense.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s decision on motion for summary judgment. Torres v. City of

Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). “Generally, an order denying

summary judgment is not appealable under 28 U.S.C. § 1291 as the parties must

wait for final judgment to appeal.” Melnik v. Dzurenda, 14 F.4th 981, 984 (9th

Cir. 2021), citing Johnson v. Jones, 515 U.S. 304, 309 (1995). However, denials

of qualified immunity are appealable immediately under the collateral order

doctrine. Id. at 985, citing Plumhoff v. Rickard, 572 U.S. 765, 772 (2014). This is

because qualified immunity protects government employees from both liability and

having to stand trial. If the appeal of the denial of qualified immunity is not

permitted until the final judgment, “the immunity from standing trial will have

been irretrievably lost.” Plumhoff, 572 U.S. at 772.

We affirm in part, reverse in part, and remand.

The district court properly determined that the defendants are not entitled to

qualified immunity on Ackerman’s equal protection claims. We agree with the

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district court that there are factual issues as to whether Defendants’ continued

segregation of Asian Pacific-Islander inmates and African American inmates was

narrowly tailored to further the compelling government of prison security. See

Harrington v. Scriber, 785 F.3d 1299, 1305 (9th Cir. 2015), citing Johnson v.

California, 543 U.S. 499, 515 (2005). Indeed, it is unclear how long the

segregation lasted and whether the hostilities justifying such segregation were

ongoing. Accordingly, the district court correctly denied Defendants’ motion for

summary judgment on Ackerman’s equal protection claims.

We disagree, though, with the district court’s decision that the defendants

are not entitled to qualified immunity on Ackerman’s due process claims.

Defendants Moskuff and Homan were entitled to qualified immunity for the

procedural due process claims arising out of the disciplinary hearing. Violations of

state regulations, alone, do not rise to the level of constitutional violations.

Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009); see Case v. Kitsap Cnty.

Sheriff’s Dep’t, 249 F.3d 921, 929 (9th Cir. 2001) (explaining that we “focus on

whether a reasonable officer would have known that” the conduct violated

constitutional rights, rather than a state law or policy). Ackerman had no due

process right to a preliminary hearing. See Wolff v. McDonnell, 418 U.S. 539, 556

(1974) (holding that “[p]rison disciplinary proceedings are not part of a criminal

prosecution, and the full panoply of rights due a defendant in such proceedings

3 23-2193

does not apply”). Nor did due process require that the defendants serve a second

notice on Ackerman before finding him guilty of a lesser charge of rioting. Even

though the original notice charged Ackerman with murder for his actions during

the riot, the notice described the factual situation that formed the basis of the

conviction for rioting and provided sufficient information to allow Ackerman to

defend against the lower charge. Bostic v. Carlson, 884 F.2d 1267, 1270-71 (9th

Cir. 1989), overruled on other grounds by Nettles v. Grounds, 830 F.3d 922 (9th

Cir. 2016) (en banc).

Regarding Ackerman’s due process claim in connection with his segregated

housing, we are unable to determine the applicable due process requirements

because the district court does not identify the protected interest at stake. See, e.g.,

Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“The Fourteenth Amendment's Due

Process Clause protects persons against deprivations of life, liberty, or property;

and those who seek to invoke its procedural protection must establish that one of

these interests is at stake.”); Sandin v. Connor, 515 U.S. 472, 484-87 (1995) (states

may create liberty interests entitled to protection, but these must inevitably affect

the duration of the sentence, or impose an atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life); Hewitt v. Helms, 459

U.S. 460, 472 (1983), abrogated in part on other grounds by Sandin v. Connor,

515 U.S. 472 (1995), (describing requirements when prisoner is confined to ad-seg

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pending investigation into misconduct charges and because he is a security threat);

Johnson v. Ryan, 55 F.4th 1167, 1179 (9th Cir. 2022) (outlining two-step

procedure for analysis of procedural due process claims). The record reflects that

Ackerman received some housing review hearings, and we leave to the district

court to determine in the first instance whether these were sufficient under Johnson

v. Ryan.

We do not consider arguments and allegations raised for the first time on

appeal. See, e.g., Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); Ind.

Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).

AFFIRMED in part; REVERSED in part; REMANDED.

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