noting that to establish violation of right of access to courts, 24 prisoners must establish “actual prejudice with respect to contemplated or existing 25 litigation” (citation omitted)
How later courts described this case
- noting that to establish violation of right of access to courts, 24 prisoners must establish “actual prejudice with respect to contemplated or existing 25 litigation” (citation omitted)
- concluding that the NDOC typewriter ban did not infringe upon inmate First Amendment rights because it was reasonably related to legitimate penological interests
- finding no due process violation where inmate was given adequate opportunity to comply with regulation, which is “all the process that is due”
- holding that we review for an abuse of discretion and affirm “unless [the] evidentiary ruling was manifestly erroneous and prejudicial.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEVADA DEPARTMENT OF
CORRECTIONS,
Plaintiff-Appellee,
v.
No. 08-17091
TRAVERS A. GREENE; PAUL
BROWNING, D.C. No.
3:07-cv-00266-
Defendants-Appellants,
LRH-RAM
and
RUSSELL DAVID COHEN; JIMMY EARL
DOWNS,
Defendants.
NEVADA DEPARTMENT OF
CORRECTIONS,
Plaintiff-Appellee,
No. 09-15753
v.
D.C. No.
JIMMY EARL DOWNS,
Defendant-Appellant, 3:07-cv-00266-
LRH-RAM
and
OPINION
RUSSELL DAVID COHEN; TRAVERS A.
GREENE; PAUL BROWNING,
Defendants.
10855
10856 NEVADA DEPARTMENT OF CORRECTIONS v. COHEN
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted July 11, 2011*
San Francisco, California
Filed August 15, 2011
Before: Procter Hug, Jr., Barry G. Silverman, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Hug
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
10858 NEVADA DEPARTMENT OF CORRECTIONS v. COHEN
COUNSEL
Travers A. Greene and Paul Browning, Pro Se, Ely, Nevada,
Jimmy Earl Downs, Pro Se, Indian Springs, Nevada, for the
defendants-appellants.
Alicia L. Lerud, Deputy Attorney General, Carson City,
Nevada, for the plaintiff-appellee.
OPINION
HUG, Senior Circuit Judge.
This consolidated appeal asks us to consider the constitu-
tionality of the Nevada Department of Corrections’
(“NDOC”) policy prohibiting inmates’ personal possession of
typewriters. NDOC inmates, Travers A. Greene, Paul Brow-
ning, and Jimmy Earl Downs, appeal pro se the district court’s
grant of summary judgment in favor of the NDOC. We con-
clude that the ban does not violate the inmates’ constitutional
rights and, accordingly, affirm the decision of the district
court.
I. Background
In December 2006, Douglas Potter, an inmate at Ely State
Prison (“ESP”), murdered another inmate in his cell. The
local sheriff’s department investigated the crime. The murder
weapon was determined to be a roller pin from an inmate-
owned typewriter. In March 2007, an inmate attempted to stab
NEVADA DEPARTMENT OF CORRECTIONS v. COHEN 10859
a correctional officer. Once again, the weapon was a piece of
an inmate-owned typewriter.
Shortly after these attacks, the NDOC enacted a ban on
inmate possession of typewriters at ESP. In May 2007, the
NDOC made the ban system-wide, and notified all inmates
that it would be adding typewriters to the list of items prohib-
ited from possession. Inmates who possessed typewriters had
the option of shipping the typewriter out of the prison, donat-
ing the typewriter to charity, or having the typewriter
destroyed.
In light of multiple lawsuits concerning the validity of the
ban, the NDOC sought declaratory relief as to whether it had
the legal right to ban typewriter possession and whether the
ban is constitutional. The NDOC filed suit against inmate
Russell Cohen. Downs filed a motion to intervene. Greene
and Browning, inmates at ESP, also filed motions to inter-
vene. The district court granted those motions.
On cross-motions for summary judgment, the district court
ruled in favor of the NDOC, holding that it had the right to
declare typewriters unauthorized property and that the ban is
constitutional. Greene and Browning appealed. Downs filed
post-judgment motions. He then withdrew the motions and
filed the instant appeal. This court consolidated the appeals.
II. Jurisdiction
As the district court’s ruling on summary judgment consti-
tuted a final decision, we have jurisdiction pursuant to 28
U.S.C. § 1291.
III. Standards of Review
We review de novo the district court’s grant of summary
judgment. Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859
(9th Cir. 2011). The decision to grant or deny declaratory
10860 NEVADA DEPARTMENT OF CORRECTIONS v. COHEN
relief is reviewed de novo. Ablang v. Reno, 52 F.3d 801, 803
(9th Cir. 1995). “The district court’s exclusion of evidence in
a summary judgment motion is reviewed for an abuse of dis-
cretion.” Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir.
2002). “[W]e must affirm the district court unless its evidenti-
ary ruling was manifestly erroneous and prejudicial.” Id. We
review for abuse of discretion a district court’s decision not
to permit further discovery. Ashton-Tate v. Ross, 916 F.2d
516, 519 (9th Cir. 1990).
IV. Analysis
Although we consolidated the appeals, appellants have
briefed the issues separately. We address each appeal sepa-
rately as well.
A. Greene and Browning Appeal
[1] Greene and Browning argue that the typewriter ban
was enacted with unconstitutional motive and in retaliation
for inmate lawsuits over prison conditions. A viable claim for
retaliation requires, in part, that an inmate demonstrate that
the prison officials’ adverse action does not reasonably
advance a legitimate correctional goal. See Rhodes v. Robin-
son, 408 F.3d 559, 567 (9th Cir. 2005). Institutional security
is a legitimate correctional goal. Morrison v. Hall, 261 F.3d
896, 907 (9th Cir. 2001). This case does not present a factual
issue concerning whether the ban reasonably advances a legit-
imate correctional goal. The undisputed evidence shows that
the ban was enacted after the murder of an inmate with a
weapon fashioned from the roller pin of a typewriter. No
rational finder of fact could determine that the ban on type-
writers does not reasonably advance the legitimate correc-
tional goal of institutional safety.
[2] Greene and Browning’s claim that the ban is unconsti-
tutional because it denies them access to the Nevada Supreme
Court fails for lack of actual injury. To establish a violation
NEVADA DEPARTMENT OF CORRECTIONS v. COHEN 10861
of the right of access to the courts, a prisoner must establish
that he or she has suffered an actual injury. Lewis v. Casey,
518 U.S. 343, 349 (1996). Actual injury is a jurisdictional
requirement that flows from the standing doctrine and may
not be waived. Id. It is “actual prejudice with respect to con-
templated or existing litigation, such as the inability to meet
a filing deadline or to present a claim.” Id. at 348 (internal
quotation marks omitted). Here, the inmates do not show how
the Nevada Supreme Court’s technical rule, which ostensibly
requires typewritten briefs, has frustrated a claim. Indeed, for
all we know, the inmates may have had no claims to bring to
the Nevada Supreme Court, or may have had access to a com-
mon typewriter for preparing legal papers, or may have had
a waiver of the rule, permitting them to file handwritten
briefs. In light of the inmates’ failure to meet this jurisdic-
tional showing, we decline to comment on the constitutional-
ity of the ban with respect to the inmates’ access to courts.
[3] We also conclude that the district court did not abuse
its discretion in admitting the affidavits of NDOC officials. At
summary judgment, “a party does not necessarily have to pro-
duce evidence in a form that would be admissible at trial.”
Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir.
2001). Although Greene and Browning argue that the affida-
vits contain hearsay, their argument is directed more at the
affiants’ lack of foundation. They presume that each NDOC
affiant lacks personal knowledge and, as a result, necessarily
relied on the statements of another to make their declarations.
Unfounded speculation as to an affiant’s alleged lack of per-
sonal knowledge of the events in his affidavit does not render
it inadmissible. Thus, the district court did not err in denying
the inmates’ motion to strike.
B. Downs Appeal
[4] Downs argues that the ban was enacted in violation of
his rights under the Due Process Clause of the Fourteenth
Amendment. As the district court granted summary judgment
10862 NEVADA DEPARTMENT OF CORRECTIONS v. COHEN
on this claim, we review de novo. See Oswalt, 642 F.3d at
859. The procedural guarantees of the Due Process Clause
apply only when a constitutionally protected liberty or prop-
erty interest is at stake. Jackson v. Carey, 353 F.3d 750, 755
(9th Cir. 2003). Property interests are created by state law.
See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577
(1972). Nevada recognizes “personal property,” which
includes “money, goods, [and] chattels.” See Nev. Rev. Stat.
§§ 10.045, 10.065. As Downs’s typewriter constituted a chat-
tel, Downs had a property interest in it.
[5] An agency, such as the NDOC, violates the Due Pro-
cess Clause of the Fourteenth Amendment when it prescribes
and enforces forfeitures of property “[w]ithout underlying
[statutory] authority and competent procedural protections.”
Vance v. Barrett, 345 F.3d 1083, 1090 (9th Cir. 2003).
Nevada law provides for the regulation of personal property
of offenders. Nev. Rev. Stat. § 209.239. The statute grants
authority to the NDOC to create policies by which to regulate
inmates’ property. Implicit in the regulation of inmate prop-
erty is the authority to define what an inmate can and cannot
possess. In any event, when the NDOC prohibited inmates
from possessing typewriters inside its institutions, that is all
it did. The typewriters were not forfeited to the state; rather,
inmates were allowed to send them home or make certain
other dispositions of them.
[6] Here, prison officials enacted a system-wide ban with
no exceptions. While Downs was not offered an individual
pre-deprivation hearing, he was notified of the change in the
regulation and given an adequate opportunity to comply with
it. With respect to the personal property of prisoners, that is
all the process that is due. See generally, Wolff v. McDonnell,
418 U.S. 539, 556 (1974) (“[T]he fact that prisoners retain
rights under the Due Process Clause in no way implies that
these rights are not subject to restrictions imposed by the
nature of the regime to which they have been lawfully com-
mitted.”). As the NDOC’s enactment fell within its statutory
NEVADA DEPARTMENT OF CORRECTIONS v. COHEN 10863
authority, we conclude that there was no violation of due pro-
cess.
Downs also argues that the district court ruled on summary
judgment “prematurely.” We liberally read his argument to
mean that the district court erred in not permitting adequate
discovery. We review for abuse of discretion a district court’s
decision not to permit further discovery. See Ashton-Tate, 916
F.2d at 519. Although Downs was not afforded an opportunity
to conduct discovery prior to the court’s ruling on summary
judgment, the district court subsequently stayed its order and
allowed Downs ninety days to conduct discovery. He did not
do so, choosing rather to withdraw his motions and file the
instant appeal. Because Downs failed to diligently pursue his
opportunity to conduct discovery, we find no abuse of the dis-
trict court’s discretion. See Qualls v. Blue Cross of Cal., Inc.,
22 F.3d 839, 844 (9th Cir. 1994).
Downs fails to support any of his remaining issues with
argument. Accordingly, we deem them waived. See Green-
wood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994); Leer v. Mur-
phy, 844 F.2d 628, 634 (9th Cir. 1988) (issues not argued are
deemed abandoned).
V. Conclusion
[7] We hold that the NDOC’s prohibition on inmate pos-
session of typewriters does not unconstitutionally infringe
upon the rights of the appellants. The ban was enacted to rea-
sonably advance a legitimate correctional goal of institutional
safety. As applied to these inmates, it does not result in an
unconstitutional denial of access to courts because they have
failed to demonstrate actual injury. The district court did not
abuse its discretion in either admitting the NDOC’s affidavits
or ruling on summary judgment when it did.
AFFIRMED.