Lemuel Hentz v. Pam Ceniga

FILED

NOT FOR PUBLICATION OCT 29 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

LEMUEL FRED HENTZ, No. 09-35249

Plaintiff - Appellant, D.C. No. 3:08-cv-00157-MO

v.

MEMORANDUM *

PAM J. CENIGA, et al.,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Submitted October 19, 2010 **

Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

Oregon state prisoner Lemuel Fred Hentz appeals pro se from the district

court’s orders denying his summary judgment motion and granting defendants’

cross-motion for summary judgment in his 42 U.S.C. § 1983 action asserting

various constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

**

The panel unanimously concludes this case is suitable for decision

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

review de novo, FTC v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009), and we

affirm.

The district court properly granted summary judgment on Hentz’s claims on

qualified immunity grounds because he failed to raise a triable issue that

defendants violated any of his constitutional rights. See Pearson v. Callahan, 129

S. Ct. 808, 817-18 (2009) (discussing qualified immunity analysis).

Hentz failed to allege the elements necessary for his Fourth, Fifth, and

Eighth Amendment claims. See Hudson v. Palmer, 468 U.S. 517, 536 (1984)

(Fourth Amendment has no applicability to a prison cell); Bingue v. Prunchak, 512

F.3d 1169, 1174 (9th Cir. 2008) (Fifth Amendment’s Due Process Clause only

applies to federal, not state, actors); Morgan v. Morgensen, 465 F.3d 1041, 1045

(9th Cir. 2006) (listing elements of Eighth Amendment deliberate indifference

claim); Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998) (order)

(listing elements of equal protection claim); Taylor v. List, 880 F.2d 1040, 1045-46

(9th Cir. 1989) (conclusory allegations insufficient to defeat summary judgment).

Hentz’s conclusory allegations of retaliation and the absence of evidence

that defendants seized his books or photos due to their content were insufficient to

establish a triable issue as to his retaliation claim. Cf. Thornburgh v. Abbott, 490

U.S. 401, 415-16 (1989) (analyzing whether rules governing access to materials are

2 09-35249

content-based or not for inmates’ First-Amendment claim); Rhodes v. Robinson,

408 F.3d 559, 567-68 (9th Cir. 2005) (discussing elements of retaliation claim);

Taylor, 880 F.2d at 1045 (conclusory allegations of retaliation insufficient).

Finally, Hentz’s Fourteenth Amendment claim failed because he was not

entitled to a hearing before seizure of contraband items or funds implicated in

misconduct; was provided a meaningful hearing before being disciplined; had no

protected liberty interest in a 60-day upward departure from standard segregation

sanctions; and had adequate post-deprivation remedies for the random and

unauthorized loss of his property. Cf. Fed. R. Crim. P. 41 (solution for improper

seizure is a post-deprivation motion); see also Sandin v. Conner, 515 U.S. 472, 484

(1995) (protected liberty interest only arises if segregation imposes an “atypical

and significant hardship . . . in relation to the ordinary incidents of prison life”);

Hudson, 468 U.S. at 531-33 (random and unauthorized deprivation not actionable

if state provides meaningful post-deprivation remedy); Wolff v. McDonnell, 418

U.S. 539, 563-67 (1974) (hearing adequate if plaintiff gets advance written notice

of charges; an opportunity to present witnesses and evidence; and a written

statement of relevant evidence, findings, and reasons for disciplinary action).

Hentz’s remaining contentions are unpersuasive.

AFFIRMED.

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