Tony Hines v. James Dzurenda

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 23 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TONY HINES, Nos. 22-15452, 22-16234

Plaintiff-Appellant, D.C. No.

2:18-cv-02373-JAD-NJK

v.

JAMES DZURENDA; BRIAN WILLIAMS, MEMORANDUM*

Warden, Warden; JENNIFER NASH,

Associate Warden; JAMES SCALLY;

JOSEPH LEWIS; DARREN SPENCE;

DARREN SPIECE; OFFICE OF THE

ATTORNEY GENERAL, STATE OF

NEVADA,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

Jennifer A. Dorsey, District Judge, Presiding

Argued and Submitted May 15, 2024

Phoenix, Arizona

Before: GRABER, DESAI, and DE ALBA, Circuit Judges.

In these consolidated cases, Nevada state prisoner Tony Hines appeals from

the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging due

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

process violations in connection with a prison disciplinary proceeding, Case No.

22-15452, and a post-judgment order denying his Rule 60(b) motion, Case No. 22-

16234.1 We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s grant of summary judgment. Hamby v. Hammond, 821 F.3d 1085,

1090 (9th Cir. 2016) (cross-motions for summary judgment). We review for an

abuse of discretion motions for relief from judgment under Rule 60(b). United

States v. Asarco, Inc., 430 F.3d 972, 978 (9th Cir. 2005). We affirm summary

judgment in Case No. 22-15452 and dismiss Case No. 22-16234.

1. In Case No. 22-15452, the district court properly granted summary

judgment for Lt. Spiece on Hines’s claim alleging inadequate disclosure of the

evidence against him. Hines did not receive the confidential evidence or a

description of it because disclosing it could (1) reveal the confidential informants’

identities, which in turn would affect future cooperation, and (2) compromise the

safety and security of the facilities. These reasons allow the prison to withhold

evidence. See Melnik v. Dzurenda, 14 F.4th 981, 986 (9th Cir. 2021) (noting that

prison officials may limit a prisoner’s right to access evidence for a disciplinary

hearing if they have a “legitimate penological reason” (citation and internal

quotation marks omitted)); Zimmerlee v. Keeney, 831 F.2d 183, 187–88, 187 n.2

1

We previously consolidated the two appeals and assigned pro bono counsel to

Hines.

2

(9th Cir. 1987) (per curiam) (noting that information that would reveal a

confidential informant’s identity and threaten his safety was properly withheld

from the prisoner).

The district court also properly granted summary judgment for Lt. Spiece on

Hines’s claim alleging improper reliance on confidential informants. The

confidential information on which the disciplinary committee relied was

sufficiently reliable because the evidence was corroborated and because the

investigative report linked Hines to introducing drugs into the prison. See

Zimmerlee, 831 F.2d at 186–87 (explaining criteria for determining when reliance

on unidentified inmate informants satisfies due process); Superintendent, Mass.

Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455–56 (1985) (noting that the “some

evidence” standard does not require courts to independently assess the credibility

of witnesses or weigh the evidence).

Also, Hines received proper notice to understand the charges against him

and prepare a defense as required by Wolff v. McDonnell, 418 U.S. 539 (1974).

Hines was informed about the conduct at issue, given an approximate date of when

the violation occurred, and was told that his charge was the result of a formal

investigation. Although the information provided in the notice was general, it was

sufficient to allow a reasonable person to understand the charges and prepare a

defense. See id. at 564 (holding that notice given to an inmate must be sufficient to

3

“enable him to marshal the facts and prepare a defense”); see also Ashker v.

Newsom, 81 F.4th 863, 879 (9th Cir. 2023) (“Notice satisfying due process . . .

need not painstakingly detail all facts relevant to the date, place, and manner of

charged inmate misconduct; it must simply permit a reasonable person to

understand what conduct is at issue so that he may identify relevant evidence and

present a defense” (citation and internal quotation marks omitted)).

Because Hines failed to show that Lt. Spiece violated his due process rights,

Lt. Spiece is shielded from civil liability by qualified immunity. See Ashcroft v. al-

Kidd, 563 U.S. 731, 735 (2011) (explaining that public officials are not shielded by

qualified immunity if the plaintiff shows “(1) that the official violated a statutory

or constitutional right, and (2) that the right was clearly established at the time of

the challenged conduct” (citation and internal quotation marks omitted)). We need

not consider the “clearly established constitutional right” prong of qualified

immunity in this case. See Pearson v. Callahan, 555 U.S. 223, 230–32, 235–36

(2009) (holding that courts may exercise their discretion in deciding which prong

to address first).

2. Hines expressly waived his appeal in case No. 22-16234; we do not

consider an issue or appeal that is waived. Thus, we dismiss this case.

Case No. 22-15452 is AFFIRMED.

Case No. 22-16234 is DISMISSED.

4