John Melnik v. James Dzurenda

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN MELNIK, No. 20-15378

Plaintiff-Appellee,

D.C. No.

v. 3:16-cv-00670-

MMD-CLB

JAMES DZURENDA; DWIGHT NEVEN,

Warden; JAY BARTH, Sgt.; JASON

SATTERLY, c/o; ANTHONY WARREN, OPINION

c/o; STACEY BARRETT,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted March 10, 2021

Las Vegas, Nevada

Filed September 27, 2021

Before: Richard R. Clifton, Jacqueline H. Nguyen, and

Mark J. Bennett, Circuit Judges.

Opinion by Judge Clifton;

Dissent by Judge Bennett

2 MELNIK V. DZURENDA

SUMMARY*

Prisoner Civil Rights

The panel affirmed the district court’s order, on summary

judgment, denying qualified immunity to Nevada correctional

officials in an action brought pursuant to 42 U.S.C. § 1983 by

a state prisoner alleging defendants violated his constitutional

rights by denying him the ability to examine certain

documents that could have served as evidence in a prison

disciplinary proceeding.

Plaintiff was charged with unauthorized or inappropriate

use of the prison mail system after prison officials intercepted

two envelopes addressed to plaintiff which contained

methamphetamine in secret compartments in the enclosed

letters. After plaintiff was notified of the prison charges, he

asked multiple times to be able to examine the envelopes or

copies of the envelopes, but those requests were denied or

ignored. At the prison disciplinary hearing that followed,

images of the envelopes and information about their contents

were the only evidence presented to support the charges.

Plaintiff testified that he was innocent and had been framed

by other inmates. He was found guilty.

The panel held that defendants were not entitled to

qualified immunity because Plaintiff had a constitutional right

under the Due Process Clause of the Fourteenth Amendment

to be permitted to examine documentary evidence for use in

the prison disciplinary hearing. The panel held that the right

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MELNIK V. DZURENDA 3

referenced in Wolff v. McDonnell “to present documentary

evidence in” the prisoner’s own defense must generally

include the ability to obtain the documentary evidence in the

first place. 418 U.S. 539, 566 (1974). Similarly, if a prisoner

is to be able to respond to evidence presented against him, as

a general proposition he should be allowed to know what it is

and to examine it, unless there is reason to the contrary. The

panel further concluded that the right to examine

documentary evidence for use in a prison disciplinary hearing

was clearly established at the time when plaintiff was denied

access to the material.

Dissenting, Judge Bennett would hold that defendants

were entitled to qualified immunity because they did not

violate clearly established law. Judge Bennett did not read

Wolff as clearly establishing any right that would allow

plaintiff to compel access to the prison’s evidence against

him. The majority suggested that Wolff implicitly recognized

a prisoner’s right to compile evidence in his defense. But

Judge Bennett doubted that a passing comment on the

prison’s ability to limit the compilation of evidence could

constitute a clearly established right. Nor could Judge

Bennett locate such a right in this Circuit’s case law.

COUNSEL

Frank A. Toddre II (argued), Senior Deputy Attorney

General; D. Randall Gilmer, Chief Deputy Attorney General;

Aaron D. Ford, Attorney General; Attorney General’s Office,

Las Vegas, Nevada; for Defendants-Appellants.

4 MELNIK V. DZURENDA

Yaira Dubin (argued), O’Melveny & Myers LLP, New York,

New York; Jonathan D. Hacker, O’Melveny & Myers LLP,

Washington, D.C.; Melissa C. Cassel, O’Melveny & Myers

LLP, San Francisco, California; Samuel Weiss, Rights

Behind Bars, Washington, D.C.; for Plaintiff-Appellee.

OPINION

CLIFTON, Circuit Judge:

John Melnik, a Nevada prisoner, brought this Section

1983 action against six individuals, all former or current

employees of the Nevada Department of Corrections.1 He

alleged that they violated his constitutional rights by denying

him the ability to examine certain documents that could serve

as evidence in a prison disciplinary proceeding pending

against him. Defendants sought summary judgment on the

ground that they were entitled to qualified immunity, but the

district court denied that motion. Defendants appeal that

denial.

We conclude that Defendants were not entitled to

qualified immunity because Melnik had a constitutional right

under the Due Process Clause of the Fourteenth Amendment

to be permitted to examine documentary evidence for use in

the prison disciplinary hearing. We further conclude that this

right was clearly established at the time when Melnik was

1

We treat Defendants collectively without distinguishing among them

or describing their individual roles because that is the approach taken by

Defendants themselves in their appeal. They have not presented any

argument that one or more of the Defendants should prevail individually,

even if others might not.

MELNIK V. DZURENDA 5

denied access to the material. We affirm the district court’s

denial of Defendants’ motion for summary judgment.

I. Background

Melnik, then a prisoner at Nevada’s High Desert State

Prison, was charged with unauthorized or inappropriate use

of the prison mail system. An anonymous prisoner informed

prison officials that Melnik was using the mail system to

smuggle drugs into the prison. After this tip, prison officials

intercepted two envelopes addressed to Melnik which

contained methamphetamine in secret compartments in the

enclosed letters. After Melnik was notified of the prison

charges, he asked multiple times to be able to examine the

envelopes or copies of the envelopes, but those requests were

denied or ignored. At the prison disciplinary hearing that

followed, images of the envelopes and information about

their contents were the only evidence presented to support the

charges. Melnik testified that he was innocent and had been

framed by other inmates. Melnik was found guilty.

As a result of the two violations, Melnik received two

separate eighteen-month terms of disciplinary segregation to

be served consecutively for a total of thirty-six months.

Melnik served ten months of this sentence before it was

suspended. As a result of these sanctions, Melnik contends

that his consideration for parole was delayed for two years.

The district court held that Defendants were not entitled

to qualified immunity and denied their motion for summary

judgment. Melnik v. Dzurenda, No. 16-00670, 2020 WL

607122, at *6–7 (D. Nev. Feb. 7, 2020). In the same order,

the district court granted Melnik’s cross-motion for summary

judgment, concluding that Defendants violated Melnik’s

6 MELNIK V. DZURENDA

Fourteenth Amendment procedural due process rights. Id.

at *3–5. The court concluded that with liability established,

the case would proceed to trial limited to the issue of

damages. Id. at *7.

Defendants appeal the denial of their request for qualified

immunity.

II. Discussion

Denial of qualified immunity is reviewed de novo.

George v. Edholm, 752 F.3d 1206, 1214 (9th Cir. 2014).

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. See Johnson v. Jones, 515 U.S.

304, 309 (1995). However, denials of qualified immunity are

appealable immediately under the collateral order doctrine.

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. Id. 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.” Id. The general rule prohibiting

interlocutory appeals still applies to other summary judgment

decisions, including the other decision made by the district

court in this case. See Johnson, 515 U.S. at 309. We may not

entertain at this time an appeal from the part of the district

court’s order granting Melnik’s motion for summary

judgment. It is not a final judgment under Federal Rule of

Civil Procedure 54(b), as the issue of damages remains to be

resolved in the district court, so we do not have jurisdiction

under 28 U.S.C. § 1291 or any exception thereto. See Wilkins

v. City of Oakland, 350 F.3d 949, 952 (9th Cir. 2003). As a

MELNIK V. DZURENDA 7

result, and as the parties acknowledge, this appeal is limited

to the issue of qualified immunity, about which there are no

factual disputes.

Defendants are entitled to qualified immunity if (1) the

alleged conduct did not violate a constitutional right or

(2) that right was not clearly established at the time of the

alleged violation. See Wood v. Moss, 572 U.S. 744, 757

(2014). We will discuss each of those two prongs separately.

In doing so, we consider the specific facts of this case, as the

Supreme Court has made clear that we are not to view the

claim at a “high level of generality. . . . This inquiry must be

undertaken in light of the specific context of the case, not as

a broad general proposition.” Mullenix v. Luna, 577 U.S. 7,

12 (2015) (internal quotation marks and citations omitted).

A. Constitutional Right

The first question we consider is whether Melnik had a

constitutional right to access the envelopes used as evidence

against him in the prison disciplinary hearing (or copies

thereof) in preparing a defense. We conclude that he did.

The Supreme Court established in Wolff v. McDonnell

that there are procedural due process rights that a prisoner

must be afforded in the context of a prison disciplinary

proceeding prior to being deprived of a protected liberty

interest. See 418 U.S. 539, 555–72 (1974). In Wolff, a class of

prisoners in Nebraska alleged, among other things, that the

disciplinary proceedings they were subjected to did not

comply with the Due Process Clause of the Fourteenth

Amendment. Id. at 542–43. The procedures included oral

notice of the charges, an opportunity to ask questions but not

to present evidence or witnesses, and oral recitation of the

8 MELNIK V. DZURENDA

reasons for the hearing body’s finding. Id. at 552–53, 564.

The Court held that one of the constitutional rights afforded

a prisoner in a disciplinary hearing is that the “inmate facing

disciplinary proceedings should be allowed to . . . present

documentary evidence in his defense when permitting him to

do so w[ould] not be unduly hazardous to institutional safety

or correctional goals.” Id. at 566.

If a prisoner must be allowed to present evidence in his

defense, it necessarily follows that he must have some right

to prepare for that presentation. With no access to the

evidence that will be presented against him, a prisoner could

neither build a defense nor develop arguments and evidence

to contest the allegations at the disciplinary hearing. The

Court noted in Wolff that there may be limitations on the

prisoner’s rights, which we will discuss further below, but in

the process the Court made clear that a prisoner’s right to

present a defense must extend to the preparation of a defense,

including compiling evidence: “Prison officials must have the

necessary discretion to keep the hearing within reasonable

limits and . . . to limit access to other inmates to collect

statements or to compile other documentary evidence.” Wolff,

418 U.S. at 566 (emphasis added).

Many courts have held that for the right articulated in

Wolff to mean anything, a prisoner must also have the right to

access evidence that he might use in preparing or presenting

his defense. See Lennear v. Wilson, 937 F.3d 257, 269 (4th

Cir. 2019) (“[A]n inmate’s due process rights related to . . .

evidence has at least two dimensions: (A) the qualified right

of access to such evidence and (B) the qualified right to

compel official review of such evidence.”); Howard v. U.S.

Bureau of Prisons, 487 F.3d 808, 813–14 (10th Cir. 2007);

Young v. Kann, 926 F.2d 1396, 1400–02 (3rd Cir. 1991);

MELNIK V. DZURENDA 9

Smith v. Mass. Dep’t of Corr., 936 F.2d 1390, 1401 (1st Cir.

1991); Meis v. Gunter, 906 F.2d 364, 367 (8th Cir. 1990); cf.

Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir. 1989) (“[A]

prisoner is entitled to be . . . informed of the evidence against

him . . . .” (quoting Nieves v. Oswald, 477 F.2d 1109, 1113

(2d Cir. 1973)); Pace v. Oliver, 634 F.2d 302, 305 (5th Cir.

Unit B Jan. 1981) (holding that “an absolute policy that in no

instance will prison records be produced” to a prisoner for use

in a disciplinary hearing violates procedural due process);

Chavis v. Rowe, 643 F.2d 1281, 1286 (7th Cir. 1981)

(requiring disclosure of exculpatory evidence to insure “the

right of the [inmate] to prepare the best defense he can and

bring to the [disciplinary committee’s] attention any evidence

helpful to his case”).

The First Circuit accurately observed that “if an inmate

has a circumscribed right to present documentary evidence,

logic dictates that he must also have some possible means for

obtaining it.” Smith, 936 F.2d at 1401. Documentary evidence

can be central to a prisoner putting on a defense as the

evidence may prove exculpatory or lead the prisoner to other

evidence or witnesses. Lennear, 937 F.3d at 269. The

evidence may also corroborate a prisoner’s version of events,

which may be invaluable in presenting a defense as an

accused inmate “obviously face[s] a severe credibility

problem when trying to disprove the charges of a prison

guard.” Id. (quoting Hayes v. Walker, 555 F.2d 625, 630 (7th

Cir. 1977)).

We have held that a prisoner’s right to call a witness in a

disciplinary process, as articulated in Wolff, means that the

prison may not impose a prohibition on witnesses being

present to testify. Mitchell v. Dupnik, 75 F.3d 517, 525 (9th

Cir. 1996) (“[A] blanket denial of permission for an inmate

10 MELNIK V. DZURENDA

to have witnesses physically present during disciplinary

hearings is impermissible, even where jail authorities provide

for interviewing of witnesses outside the disciplinary

procedure.”). The same is true with documentary evidence.

The right referenced in Wolff to “present documentary

evidence in” the prisoner’s own defense must generally

include the ability to obtain that documentary evidence in the

first place. Wolff, 418 U.S. at 566. Similarly, if a prisoner is

to be able to respond to evidence presented against him, as a

general proposition he should be allowed to know what it is

and to examine it, unless there is reason to the contrary.

To be clear, a prisoner’s right to access and prepare

evidence for a disciplinary hearing is not unlimited nor

unfettered. It may be limited by prison officials if they have

a “legitimate penological reason.” Koenig v. Vannelli,

971 F.2d 422, 423 (9th Cir. 1992). If granting a prisoner

access to the requested evidence would “be unduly hazardous

to institutional safety or correctional goals,” access may be

denied. Wolff, 418 U.S. at 566.

The penological reason must be legitimate, though, not

merely pretense or pretext. The denial of access may not be

arbitrary as “[t]he touchstone of due process is protection of

the individual against arbitrary action of government.” Id.

at 558.

For example, labeling a document “confidential” without

real confidentiality concerns is not a “legitimate penological

reason.” 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. See Piggie v. Cotton, 344 F.3d 674, 679

(7th Cir. 2003) (holding that refusing a prisoner access to a

MELNIK V. DZURENDA 11

tape as “consistent with the Department of Correction’s

procedure of keeping security tapes confidential,” without

more, is not a “security reason” for withholding access).

Further, administrative efficiency is not an adequate

justification for denying a prisoner access to evidence to be

used in forming his defense. See Bostic v. Carlson, 884 F.2d

1267, 1273 (9th Cir. 1989) (“[P]rison disciplinary committees

may not deny [inmates] the right to call important witnesses

solely for the sake of administrative efficiency.”), overruled

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

Cir. 2016) (en banc).

Prison officials may be required to provide an explanation

when they deny a prisoner access to evidence, either in the

administrative record or through testimony in court if the

denial is challenged. Zimmerlee v. Keeney, 831 F.2d 183, 187

(9th Cir. 1987) (“The reasons for denying . . . a request to

present witnesses or documentary evidence may be made by

prison officials either at the hearing or at a later time.”); see

also Ponte v. Real, 471 U.S. 491, 497–500 (1985) (requiring

prison officials to explain why a prisoner was denied the right

to call witnesses). Without such an explanation, a prison

official’s decision to deny access would effectively be made

unreviewable by courts. See id. at 498–500. The due process

rights of prisoners may not be so simply circumvented.

The prison might, for example, require a prisoner to make

an affirmative request for access to evidence he may intend

to use in his defense or that is expected to be used against

him. The request need not be extremely detailed, particularly

if the prisoner has no way of ascertaining or describing the

precise form of the evidence he seeks, but it should be

sufficient to put the prison official on notice of what is

sought. Cf. Davis v. United States, 512 U.S. 452, 459 (1994)

12 MELNIK V. DZURENDA

(holding that to invoke the right to counsel, a suspect must

“articulate his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances

would understand the statement to be a request for an

attorney”). For example, requesting the right to inspect a

document should be understood to include the alternative of

a copy of a document whether it be in the form of a

photocopy, a photograph, or something else, unless the

prisoner specifically indicates that only the original will do.

Applying this first prong of the qualified immunity

analysis to the facts of this case, we conclude that Melnik had

a constitutional right to see the envelopes or copies of them,

as they were evidence to be used in his prison disciplinary

hearing. Melnik had a protected liberty interest at stake as he

faced administrative segregation. Brown v. Or. Dep’t of

Corr., 751 F.3d 983, 987 (9th Cir. 2014) (holding that

administrative segregation “implicate[s] a protected liberty

interest giving rise to procedural due process protections”).

He requested the evidence with sufficient clarity. No

legitimate penological reason was identified to justify the

denial of access. Melnik had a constitutional due process right

that was violated, so Defendants cannot prevail on the first

qualified immunity prong.

B. Clearly Established Right

Defendants in this case focus their challenge to the district

court’s denial of qualified immunity on the second prong of

the analysis, the “clearly established” element, and on only

part of that prong. Defendants concede that a prisoner has a

general right to access evidence and that the right was clearly

established when Melnik made his first request for copies of

the envelopes. Further, Defendants concede that “[h]ad the[]

MELNIK V. DZURENDA 13

envelopes simply been in Melnik’s file, this would be an

entirely different story. This [denial of access] would have

been arbitrary and malicious.” Instead, Defendants raise two

“wrinkles,” to use their term, based on specific facts in this

case that, they argue, meant that the right asserted by Melnik

was not clearly established when Melnik requested copies of

the envelopes.2

Melnik argues that these factors were not raised before

the district court and should not be considered by this court.

It is true that the arguments now relied on by Defendants

were not raised below, but we have discretion to consider

such arguments if they present purely legal questions. See

Cold Mountain v. Garber, 375 F.3d 884, 891 (9th Cir. 2004).

As these arguments appear to be questions of law, we

exercise discretion to consider them. They do not persuade us

that Defendants are entitled to qualified immunity.

2

The dissent creates arguments for Defendants that they did not make

and, indeed, affirmatively rejected. Dissent at 22–23; see Oral Argument

at 8:20–8:55 (conceding that the right to disclosure of evidence was

clearly established, as a general matter, but distinguishing this instance

only because the documentary evidence at issue here was held in a vault,

though photographic copies were available). “Our circuit has repeatedly

admonished that we cannot ‘manufacture arguments for an appellant. . . .’”

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

(quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir.

1994)); see United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579,

1581–82 (2020) (reversing a decision of this court for failure to follow the

principle of party presentation). We decline the dissent’s invitation to do

so here. To be clear, we have not been persuaded by the argument

presented in the dissent and would reach the same conclusion even if it

was appropriate for us to consider it, but it is not, so we will not discuss

it further.

14 MELNIK V. DZURENDA

The first factor Defendants raise is that the envelopes at

issue were stored by Defendants in an evidentiary vault for

use in possible criminal proceedings, and that location meant

that Melnik’s right to access copies of the envelopes was not

clearly established. At oral argument, Defendants explained

for the first time that the envelopes being placed in the vault

made them confidential under Nevada Department of

Corrections’ Administrative Regulation 708.01. That

provision states that “[a]ll evidence, documents, and

information related to criminal prosecution referrals are

confidential . . . .”

Withholding confidential information from a prisoner

may be a legitimate penological reason for denying a prisoner

access to evidence. Defendants have not, however, identified

anything that justified keeping these envelopes confidential

from Melnik. He was charged with smuggling drugs in those

envelopes and was ultimately held responsible for the

contents of the envelopes, presumably because he arranged

for someone outside the prison to hide the drugs in the

envelopes and mail them to him. If he was responsible for

that action, then it is difficult to understand what information

could have been revealed by the envelopes that needed to be

kept confidential from him. The envelopes would have

revealed that they were addressed to Melnik, but that was not

information that had been or could be withheld from him. It

was the thrust of the charges against him. Each envelope

would also presumably have shown the name of the sender

and a return address, but if Melnik was responsible for the

mailing, that would not have been something that logically

needed to be withheld from him either, as he would have

already known from whom the drugs came.

MELNIK V. DZURENDA 15

We pressed Defendants on this issue at oral argument and

did not receive a persuasive response. Indeed, Defendants

appear to admit that the envelopes were labeled confidential

based on the location where they were stored rather than

based on any confidential attributes of the envelopes

themselves. Defendants conceded that the envelopes could

not have properly been withheld if they had been kept in

Melnik’s file. Where Defendants decided for themselves to

store the envelopes did not make them confidential. As noted

above, neither a confidential label nor administrative

convenience provides reason to withhold evidence.

More broadly, the fact that a matter could possibly be

referred for criminal prosecution cannot logically serve as a

valid basis to keep from a prisoner charged with a

disciplinary violation all evidence related to the alleged

violation. If it could, then prisons could avoid any obligations

under Wolff by noting a possibility of referral for prosecution.

Defendants were not required to proceed with the prison

discipline in the meantime, but having decided to do so, they

could not withhold all information about the incident from the

prisoner based only on the possibility of a future criminal

prosecution. That would run afoul of the notice requirement

clearly articulated in Wolff. See 418 U.S. at 564.

Melnik was informed of the prison disciplinary charges

and thus knew he was charged with responsibility for the

envelopes that contained drugs. The existence of Nevada

Department of Corrections’ Administrative Regulation

708.01 and the possibility of a referral for criminal

prosecution does not provide any logical explanation for why

he needed to be denied access to the envelopes or a copy of

the envelopes. More precisely, it fails to provide any

16 MELNIK V. DZURENDA

legitimate penological reason for denying him the ability to

see them.

Further, Defendants admitted at oral argument that prison

officials could still access materials in the vault, though

approval by other agencies may have been required. In

addition, they admitted that prison officials already had

photographs of at least the front of the envelopes, which

could have been shown or made available to Melnik. Again,

administrative convenience is not an adequate justification for

denying a prisoner access to evidence. Any difficulty in

making copies once the envelopes were in the vault was not

a valid reason to deny Melnik access to them. See Bostic,

884 F.2d at 1273. Defendants did not withhold copies of the

envelopes for legitimate penological reasons.

Defendants also advanced another argument at oral

argument—that Melnik requested a “copy” of the envelopes

rather than a copy of photographs of the envelopes, a request

the prison officials would have been able to honor without

accessing the envelopes in the vault. This relates to the

specificity of the request made by Melnik. He requested a

“copy” or “photocopy” of the envelopes, in doing so he was

clearly requesting to view an accurate image of the envelopes,

regardless of how that image was created. This semantic

difference did not make the right Defendants concede was

clearly established any less clear.

Defendants acknowledge, absent these wrinkles, that the

right was clearly established such that they were on notice of

the obligation to provide access to or copies of the envelopes

to Melnik. We conclude that his right to access that

documentary evidence was clearly established and that the

MELNIK V. DZURENDA 17

factors pointed to by Defendants did not make the right any

less clear.

III. Conclusion

We affirm the district court’s holding that Defendants are

not entitled to qualified immunity. The case is remanded to

district court for further proceedings.

AFFIRMED and REMANDED.

BENNETT, Circuit Judge, dissenting:

I agree that prisoners in disciplinary proceedings now

have a qualified right to access the prison’s evidence against

them. Majority Opinion at 7. But in my view, that right was

established in our circuit today—by the majority’s opinion.

Because defendants did not violate clearly established law, I

would hold that defendants are entitled to qualified immunity.

I therefore respectfully dissent.

A right is clearly established if it has a “sufficiently clear

foundation in then-existing precedent.” Nunes v. Arata,

Swingle, Van Egmond & Goodwin (PLC), 983 F.3d 1108,

1112 (9th Cir. 2020) (per curiam) (citation omitted). “It is

not enough that the rule is suggested by then-existing

precedent.” District of Columbia v. Wesby, 138 S. Ct. 577,

590 (2018) (emphasis added). Rather, the rule must be

“settled law, which means it is dictated by controlling

authority or a robust consensus of cases of persuasive

authority.” Id. at 589–90 (quotation marks and citations

omitted). “There need not be a case directly on point, but

18 MELNIK V. DZURENDA

existing precedent must place the statutory or constitutional

question beyond debate.” Nunes, 983 F.3d at 1112 (emphasis

added) (quotation marks and citation omitted). In other

words, “[t]he precedent must be clear enough that every

reasonable official would interpret it to establish the

particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct.

at 590 (emphasis added).

The Supreme Court has not clearly established a

prisoner’s right to access the evidence against him in a

disciplinary proceeding. In Wolff v. McDonnell, 418 U.S. 539

(1974), the Court recognized that a prisoner facing

disciplinary proceedings has the right to: (1) advanced written

notice of the disciplinary charges; (2) an opportunity to call

witnesses and present documentary evidence in his defense,

consistent with institutional safety or correctional goals; and

(3) a written statement by the factfinder of the evidence relied

on and the reasons for the disciplinary action. Id. at 563–66.

Nowhere in Wolff did the Court decide that a prisoner must

also have access to the prison’s evidence against him. The

majority suggests that Wolff implicitly recognized a

prisoner’s right to compile evidence in his defense. Majority

Opinion at 8. But I doubt a passing comment on the prison’s

ability to limit the compilation of evidence can constitute a

clearly established right. See Wolff, 418 U.S. at 566.

That is all the more so because Wolff was not decided on

a blank slate. The court of appeals in Wolff required the

prison to provide the same due process protections as those

afforded to parolees facing parole revocation. See id. at 559.

Those protections were established in Morrissey v. Brewer,

408 U.S. 471 (1972), and they are:

MELNIK V. DZURENDA 19

(a) written notice of the claimed violations of

parole; (b) disclosure to the parolee of

evidence against him; (c) opportunity to be

heard in person and to present witnesses and

documentary evidence; (d) the right to

confront and cross-examine adverse witnesses

. . . ; (e) a “neutral and detached” hearing

body such as a traditional parole board,

members of which need not be judicial

officers or lawyers; and (f) a written statement

by the factfinders as to the evidence relied on

and reasons for revoking parole.

Id. at 489 (emphasis added). The Supreme Court reversed the

court of appeals and decided that only some of the Morrissey

factors apply in a prison disciplinary proceeding. See Wolff,

418 U.S. at 560–62. Understanding that the Wolff rights are

a subset of the Morrissey factors leads to two natural

conclusions. First, the right to call witnesses and present

documentary evidence does not include a prisoner’s right to

disclosure of evidence against him, lest the second Morrissey

factor be redundant. Second, the Court in Wolff did not adopt

the second Morrissey factor. See id. at 563–66. And the

disciplinary process in Wolff did not otherwise require

disclosure of evidence. See id. at 552–53. Thus, the Court

held that a prison disciplinary process that did not require

disclosure of the prison’s evidence against a prisoner could

still satisfy due process. Thus, I do not read Wolff as clearly

establishing any right that would allow Melnik to compel

access to the prison’s evidence against him.

Nor can I locate such a right in our circuit’s caselaw.

There are many published decisions that discuss the rights

that Wolff did establish, such as the qualified right to call

20 MELNIK V. DZURENDA

witnesses and present evidence. See Zimmerlee v. Keeney,

831 F.2d 183, 187 (9th Cir. 1987) (per curiam); Bostic v.

Carlson, 884 F.2d 1267, 1273 (9th Cir. 1989), overruled on

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

2016) (en banc); Koenig v. Vannelli, 971 F.2d 422, 423 (9th

Cir. 1992) (per curiam). But there are no published cases that

discuss whether the prison must disclose its evidence. Thus,

it is hardly surprising that the majority cannot cite a single

Supreme Court or Ninth Circuit case that establishes a

prisoner’s right to access the prison’s evidence (let alone

identify when that right was established in our circuit).

Majority Opinion at 8–12. Instead, every cited case either

comes from out of circuit or concerns one of the expressly

enumerated Wolff rights.

Of course, “we may look at unpublished decisions and the

law of other circuits, in addition to Ninth Circuit precedent.”

Prison Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir.

2005). But even that persuasive authority is unclear. Our

unpublished decisions are conflicted on whether a prisoner

can compel the prison to disclose its evidence against him.

Compare Sherrod v. Rardin, No. 99-56634, 2000 WL

1228999, at *1 (9th Cir. Aug. 29, 2000) (requiring prison to

grant access to videotape evidence), with Sivak v. Cluney, No.

91-35236, 1992 WL 259239, at *2 (9th Cir. Oct. 5, 1992)

(finding that a prison had no obligation to disclose all the

evidence against the prisoner). And although the majority

correctly notes that several other circuits have recognized that

prisoners must be able to access the prison’s evidence, the

Fourth Circuit is only a recent member of that group.

Majority Opinion at 8. A qualified right of access to evidence

is now clearly established in the Fourth Circuit, see Lennear

v. Wilson, 937 F.3d 257, 269 (4th Cir. 2019), but that was not

the case in 2015, when the Nevada prison officials denied

MELNIK V. DZURENDA 21

Melnik access to the letter. At that time, the controlling

Fourth Circuit law was Young v. Lynch, 846 F.2d 960 (4th

Cir. 1988). In Young, prison officials denied a prisoner’s

request to produce a cigarette butt that was evidence of his

violation, and the court held there was no “clearly established

right to demand production of physical evidence.” Id. at 961,

963 (explaining that Wolff “does not explicitly confer this

right,” id. at 963). The Young court ultimately declined to

decide whether such a right exists, but it noted that Wolff was

“not controlling” in this context. Id. at 963–64; see also Tyler

v. Hooks, 945 F.3d 159, 169 (4th Cir. 2019) (interpreting

Young).

So, in sum, we have no Supreme Court and no Ninth

Circuit precedent establishing the right. A majority of other

circuits recognize the right, but as of 2015, at least one circuit

had declined to do so. And our unpublished decisions

conflict as to whether the right exists. Even if this precedent

might suggest the right exists, the “clearly established”

inquiry asks whether the existence of the right has been

placed beyond debate. I believe the precedent here falls far

short of that standard. See Dougherty v. City of Covina,

654 F.3d 892, 900 (9th Cir. 2011) (finding a rule not clearly

established where “[n]either this court nor the Supreme Court

has addressed [the] question” and “other Circuit Courts of

Appeal have split on similar questions”). There are panels of

our own circuit and a published decision from another circuit

that disagree with the majority’s opinion. In these

circumstances, we cannot ask state officials to predict which

decisions are right and which decisions are wrong. See

Wilson v. Layne, 526 U.S. 603, 618 (1999) (“If judges . . .

disagree on a constitutional question, it is unfair to subject

22 MELNIK V. DZURENDA

[state officials] to money damages for picking the losing side

of the controversy.”).1

Nor is it fair to say that the defendants were on notice that

the right was clearly established because the prison

regulations require disclosure of evidence. Cf. Vazquez v.

Cnty. of Kern, 949 F.3d 1153, 1164–65 (9th Cir. 2020).

Nevada Department of Corrections Administrative

Regulation 707 (“AR 707”) provides that “the inmate shall

receive copies of any evidentiary documents, which the

Disciplinary Hearing Officer considers, except in cases where

non-disclosure has been approved under the ‘confidential

information’ provisions of this Code.” But AR 707 is not

descriptive of the prisoner’s constitutional rights. See

Furnace v. Sullivan, 705 F.3d 1021, 1027 (9th Cir. 2013).

AR 707 doesn’t even align with the constitutional right as

described in the majority’s opinion, which allows the prison

to limit disclosure for reasons other than confidentiality.

Majority Opinion at 10. Moreover, the rules and regulations

concerning the disclosure of evidence often extend much

further than the Constitution requires. See United States v.

Muniz-Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013)

(“[Federal Rule of Criminal Procedure] 16 is . . . broader than

Brady.”). Thus, AR 707 does not put officials on notice of a

prisoner’s constitutional right to disclosure of evidence

against him.

Rather than conduct this analysis, the majority relies on

the fact that defendants have “concede[d] that a prisoner has

1

Given the conflicting persuasive authority, this is not a case in which

the unconstitutionality of the defendants’ conduct is so obvious as to not

require a case on point. See A.D. v. Cal. Highway Patrol, 712 F.3d 446,

455 (9th Cir. 2013).

MELNIK V. DZURENDA 23

a general right to access evidence and that the right was

clearly established when Melnik made his first request for

copies of the envelopes.” Majority Opinion at 12. But

whether a right was clearly established is a question of law,

see Morales v. Fry, 873 F.3d 817, 821 (9th Cir. 2017), and

“[w]e are not bound by a party’s concession as to the

meaning of the law,” United States v. Ogles, 440 F.3d 1095,

1099 (9th Cir. 2006) (en banc). Concessions that are “likely

to affect a number of cases in the circuit” do not “relieve this

[c]ourt of the duty to make its own resolution of such issues.”

Deen v. Darosa, 414 F.3d 731, 734 (7th Cir. 2005) (citation

omitted). Besides, we may even consider an issue sua sponte

“if failure to do so would result in manifest injustice, or if the

opposing party will not suffer prejudice.” Hall v. City of Los

Angeles, 697 F.3d 1059, 1071 (9th Cir. 2012). Here, there is

no prejudice because the district court decided and Melnik

briefed on appeal whether the right was clearly established.

See Garvin v. Cook Invs. NW, SPNWY, LLC, 922 F.3d 1031,

1034 n.1 (9th Cir. 2019). Yet there is manifest injustice in

allowing the defendants’ concession to stand—it precludes

future defendants from challenging whether the right was

clearly established.

A state official who looked at Wolff, then looked at our

circuit’s caselaw (or lack thereof), and then resorted to

nonprecedential authority, would be left with at least some

uncertainty about what the rule in our circuit was before

today. The consequence of the majority’s decision is that six

Nevada officials will be personally liable for conduct that we

24 MELNIK V. DZURENDA

have only now decided is unconstitutional.2 Thus, I

respectfully dissent.

2

Some defendants do not even appear to be personally involved in the

violation of Melnik’s rights. For instance, James Dzurenda (the Director

of Corrections) is only the recipient of Melnik’s second level grievance,

to which Dzurenda had not responded at the time of the complaint. Cf.

Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014). But the

defendants, for some reason, have elected to litigate this case without

distinguishing between individual defendants. I express no view on

whether the interests of justice would (or could) allow them to change that

strategy going forward.