denial of reconsideration of non-appealable order is itself not appealable
How later courts described this case
- denial of reconsideration of non-appealable order is itself not appealable
- “[L]engthy confinement without meaningful review may constitute atypical and significant hardship[.]”
- explaining limited scope of review of an interlocutory appeal involving denial of qualified immunity
- discussing constitutionality of conditions or restrictions implicating pretrial detainee’s due process rights
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUSTIN RIDER, No. 19-16117
Plaintiff-Appellee, D.C. No. 2:16-cv-02633-RFB-BNW
v.
MEMORANDUM*
DAVID TRISTAN; et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Defendants appeal the district court’s order denying summary judgment on
Counts I and II of plaintiff Justin Rider’s 42 U.S.C. § 1983 action arising from his
pretrial detention. We have jurisdiction over this interlocutory appeal under 28
U.S.C. § 1291. Plumhoff v. Rickard, 572 U.S. 765, 771-73 (2014). We review de
*
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).
novo the district court’s summary judgment and qualified immunity
determinations. Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir.
2017). We affirm.
The district court properly concluded that, resolving all factual disputes and
drawing all reasonable inferences in Rider’s favor, defendants Tristan, Neven,
Fiero, and Nash are not entitled to qualified immunity on Rider’s due process
claim (Count II of the second amended complaint) because Rider’s right to
periodic review, notice of hearings, and an opportunity to be heard was clearly
established, and every reasonable official would have known that housing Rider in
administrative segregation for nineteen months without meaningful review of his
placement would violate the Fourteenth Amendment. See Mullenix v. Luna, 136 S.
Ct. 305, 308 (2015) (per curiam) (discussing qualified immunity; explaining that a
clearly established right “is one that is sufficiently clear that every reasonable
official would have understood that what he is doing violates that right” and
existing precedent must have placed the constitutional question beyond debate);
Bell v. Wolfish, 441 U.S. 520, 535-40 (1979) (discussing constitutionality of
conditions or restrictions implicating pretrial detainee’s due process rights); see
also Sandin v. Conner, 515 U.S. 472, 482-83 (1995) (inmates in administrative
segregation are entitled to due process protections consisting of periodic review,
notice of hearings, and an opportunity to be heard); Brown v. Or. Dep’t of Corr.,
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751 F.3d 983, 989-90 (9th Cir. 2014) (“[L]engthy confinement without meaningful
review may constitute atypical and significant hardship[.]”).
To the extent defendants challenge the district court’s denial of
reconsideration as to the denial of summary judgment on Count II, the district
court did not abuse its discretion because defendants failed to demonstrate any
basis for relief. See Sch. Dist. No. 1J Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d
1255, 1262-63 (9th Cir. 1993) (standard of review and grounds for reconsideration
under Rule 60(b)).
We lack jurisdiction to consider defendants’ interlocutory appeal of the
denial of summary judgment on Rider’s Sixth Amendment claim against
defendants in their official capacities (Count I), because the record reflects that the
district court determined that “[a] genuine dispute of material fact remains as to
whether . . . HDSP policy violated Plaintiff’s right to self-representation.” See
George v. Morris, 736 F.3d 829, 834-36 (9th Cir. 2013) (explaining limited scope
of review of an interlocutory appeal involving denial of qualified immunity).
Accordingly, we also lack jurisdiction to consider the district court’s denial of
reconsideration as to the denial of summary judgment on Count I. See Branson v.
City of Los Angeles, 912 F.2d 334, 336 (9th Cir. 1990) (denial of reconsideration
of non-appealable order is itself not appealable).
We do not consider defendants’ mootness argument raised for the first time
3 19-16117
on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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