“Waiver is an intentional and voluntary relinquishment of a known right . . . [that] may be manifested by actions . . . inconsistent with any other intention than to waive.” (citation omitted)
How later courts described this case
- “Waiver is an intentional and voluntary relinquishment of a known right . . . [that] may be manifested by actions . . . inconsistent with any other intention than to waive.” (citation omitted)
- noting that a court should look to the record to examine whether there is “‘some evidence’ in support of each challenged” disciplinary sanction
- reversing grant of summary judgment on an Eighth Amendment claim for inadequate medical care for doctor who denied grievance seeking medical care
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 16 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAINE ANTON CRAWLEY, No. 24-5999
D.C. No.
Plaintiff - Appellee, 3:22-cv-00530-CSD
v.
MEMORANDUM*
BRIAN WILLIAMS; ROBERT SUWE;
KODY HOLLOWAY; RICHARD
ASHCRAFT; ROBERT ROBISON;
OLSEN; CHARLES DANIEL,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Nevada
Craig S. Denney, Magistrate Judge, Presiding
Argued and Submitted November 21, 2025
San Francisco, California
Before: S.R. THOMAS, BRESS, and MENDOZA, Circuit Judges.
Nevada Department of Corrections (“NDOC”) employees Richard Ashcraft,
Kody Hollaway, Robert Robison, Robert Suwe, and Brian Williams (“appellants”)
appeal the district court’s denial of qualified immunity and grant of summary
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
judgment in favor of Daine Crawley (“Crawley”), an individual incarcerated in an
NDOC facility. We have jurisdiction under 28 U.S.C. § 1291 based on the denial
of qualified immunity. See Wilkins v. City of Oakland, 350 F.3d 949, 951 (9th Cir.
2003). We affirm in part and reverse in part.
We review a grant of summary judgment de novo. Desire, LLC v. Manna
Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021) (citing Goodman v. Staples The
Office Superstore, LLC, 644 F.3d 817, 822 (9th Cir. 2011)). We also review a
district court’s determination as to qualified immunity de novo. Benavidez v.
County of San Diego, 993 F.3d 1134, 1141 (9th Cir. 2021) (citing Thompson v.
Mahre, 110 F.3d 716, 721 (9th Cir. 1997)).
1. Appellants contend that Crawley’s suit is barred by Heck v. Humphrey,
512 U.S. 477 (1994), and argue that it is subject to mandatory dismissal under the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2)(B)(ii). We
disagree.
Appellants did not raise their Heck arguments in their opening brief, nor did
they do so before the district court.1 And critically, appellants affirmatively
invoked this federal suit to obtain dismissal of Crawley’s parallel proceedings in
1
We generally do not consider arguments that a party did not raise before the
district court and raised for the first time in a reply brief. Padgett v. Wright, 587
F.3d 983, 985 n.2 (9th Cir. 2009). But the Prison Litigation Reform Act, 28 U.S.C.
§ 1915(e)(2)(B)(ii), warrants consideration of this issue. See Anderson v.
Angelone, 123 F.3d 1197, 1199 (9th Cir. 1997).
2 24-5999
Nevada state court. In state court, appellants asserted claim preclusion based on
the district court’s entry of summary judgment in this suit and represented that
“[e]ither [the state or the federal] forum could provide the rule [of] decision on the
merits and either forum could adequately protect the rights of the federal litigants.”
The state court agreed and terminated the state proceedings.
By affirmatively using this federal case to obtain a benefit in Crawley’s state
court case, appellants waived their Heck arguments in this forum. See Caterpillar
Tractor Co. v. Collins Mach. Co., 286 F.2d 446, 451–52 (9th Cir. 1960) (“Waiver is
an intentional and voluntary relinquishment of a known right . . . [that] may be
manifested by actions . . . inconsistent with any other intention than to waive.”
(citation omitted)). Although forfeiture can be excused by a court, waiver cannot.
See Wood v. Milyard, 566 U.S. 463, 472–73 (2012) (citing Day v. McDonough, 547
U.S. 198, 202 (2006)). Our decision in Hebrard v. Nofziger, 90 F.4th 1000 (9th
Cir. 2024), does not control this case. Hebrard involved forfeiture, not waiver, and
indeed, specifically distinguishes the two. Id. at 1006.
2. Turning to the merits, we affirm the district court’s grant of summary
judgment against Ashcraft, Hollaway, Robison, and Suwe for violating Crawley’s
procedural due process rights by denying him access to the evidence used against
him at the November 10, 2021, and December 15, 2021, hearings. We reverse as
to Williams.
3 24-5999
Courts conduct a two-pronged analysis to determine whether a defendant is
entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). One
prong considers whether a defendant’s actions violated a plaintiff’s constitutional
rights, while the other assesses whether the right at issue was clearly established.
Id. A court may analyze either prong first. Pearson v. Callahan, 555 U.S. 223,
236 (2009). A right is clearly established if it would be “clear to a reasonable
[prison official] that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202.
We disagree with the district court that Williams violated clearly established
law in denying Crawley’s grievance. Although we have previously found that
certain prison officials have violated prisoners’ constitutional rights by denying
grievances, this has generally been in situations factually distinct from those here
and involving different rights. See, e.g., Colwell v. Bannister, 763 F.3d 1060,
1069–70 (9th Cir. 2014) (reversing grant of summary judgment on an Eighth
Amendment claim for inadequate medical care for doctor who denied grievance
seeking medical care). We therefore reverse the district court’s denial of qualified
immunity for Williams and its grant of summary judgment against him.
As to the remaining appellants, incarcerated individuals are entitled to
certain procedural due process protections when a prison disciplinary proceeding
implicates a protected liberty interest. Melnik v. Dzurenda, 14 F.4th 981, 985 (9th
4 24-5999
Cir. 2021) (citing Wolff v. McDonnell, 418 U.S. 539, 555–72 (1974)). Crawley
testified that he was sanctioned at both disciplinary hearings with the loss of his
good time credits. An incarcerated individual has a protected liberty interest in
their good time credits where, as here, they have a statutory right to the credits.
See Nev. Rev. Stat. § 209.4465(7)(a) (providing that credits earned “[m]ust be
deducted from the maximum term or the maximum aggregate term imposed by the
sentence”); Nev. Rev. Stat. § 209.451 (limiting circumstances under which an
incarcerated person forfeits their good time credits); Sandin v. Conner, 515 U.S.
472, 484–86 (1995); Wolff, 418 U.S. at 557; Bergen v. Spaulding, 881 F.2d 719,
721 (9th Cir. 1989).
Among the due process rights afforded an incarcerated individual in a prison
disciplinary hearing is the right to “present documentary evidence in his defense.”
Wolff, 418 U.S. at 566; Ashker v. Newsom, 81 F.4th 863, 878 (9th Cir. 2023). In
Melnik v. Dzurenda, we held that this right “necessarily” includes the right to know
about and examine evidence to be used against an individual at the hearing. 14
F.4th at 985–87. At both hearings, Crawley was denied access to evidence used
against him, which appellants asserted was “confidential” or “in camera”
information. “The mere label ‘confidential’ attached by prison officials without
logical foundation cannot be used to prohibit a prisoner from accessing evidence to
be used in a disciplinary hearing.” Id. at 987. Appellants did not provide an
5 24-5999
explanation, either in the administrative record or during this litigation, for why the
evidence used against Crawley at both hearings was confidential or why Crawley
could not access it.2 This violated Crawley’s procedural due process rights under
Melnik. Id. at 986–88.
We are unpersuaded by appellants’ argument that Hollaway, Robison, and
Suwe did not personally participate in the violations of Crawley’s rights because
they were not members of the disciplinary committees that revoked Crawley’s
good time credits. Each of these appellants took affirmative actions that prevented
Crawley from accessing the evidence used against him at the disciplinary hearings
and thereby personally participated in the underlying violations. See Jones v.
Williams, 297 F.3d 930, 934 (9th Cir. 2002). The right to access documentary
evidence under Melnik necessarily extends beyond the hearing itself because an
incarcerated person must be able to prepare a defense before the hearing. 14 F.4th
at 985–86.
Finally, because Crawley’s right to access the evidence used against him was
2
Appellants argue that Melnik only recognizes a right to access exculpatory
evidence. We did not limit our holding in Melnik in this way. In fact, we stated the
opposite, and noted that the value of accessing documentary evidence for an
incarcerated person facing a disciplinary hearing lies in the fact that the evidence
“may prove exculpatory” and that it could “lead the prisoner to other evidence or
witnesses” or “corroborate a prisoner’s version of events.” Melnik, 14 F.4th at 986
(emphasis added).
6 24-5999
clearly established law under Melnik at the time of the hearings, Ashcraft, Suwe,
Robison, and Hollaway are not entitled to qualified immunity. We therefore affirm
the district court’s grant of summary judgment for Crawley against them.
3. We also affirm the district court’s grant of summary judgment for Crawley
on the basis that the disciplinary sanction entered at the December 15, 2021,
hearing was not supported by “some evidence.” Due process requires that a prison
disciplinary board’s decision to deprive an individual of good time credits is
supported by “some evidence in the record.” Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 454 (1985). The question for a reviewing court is
“whether there is any evidence in the record that could support the conclusion
reached by the disciplinary board.” Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.
1987) (citing Hill, 472 U.S. at 455–56) (emphasis omitted); see also Ashker, 81
F.4th at 884.
Here, there is no record evidence to support the disciplinary committee’s
sanction. Although the disciplinary hearing summary indicates that the
disciplinary committee based its decision on “the evidence provided in the offence
report, in-camera evidence and the inmate plea of not guilty,” neither the report nor
the in camera evidence are before the court. Because there is no evidence in the
record to support the disciplinary committee’s conclusion—in violation of Hill—
we affirm the district court’s grant of summary judgment for Crawley on this
7 24-5999
ground. See Toussaint v. McCarthy, 801 F.2d 1080, 1105–06 (9th Cir. 1986)
(noting that a court should look to the record to examine whether there is “‘some
evidence’ in support of each challenged” disciplinary sanction), overruled in part
on other grounds by, Sandin, 515 U.S. 472; see also Hill, 472 U.S. at 455–57
(reasoning there must be some evidence “in the record” to support a sanction to
ensure that the sanction is not “without support or otherwise arbitrary”).
AFFIRMED in part; REVERSED in part; REMANDED.3
3
The parties shall bear their own costs on appeal.
8 24-5999