Petition for Writ of Certiorari — Tilton v. Remeidio (No. 06-167)
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supreme Court U.S.
e), FILE
No. _ 06-167 JUL 31 2006
Jn Tye OFFICE OF THE CLERK
Supreme Court of the Anited States
S
JEANNE WOODFORD, DEWEY WOOTEN,
ANTHONY P. KANE, H. WILLIAMS,
D.A. DACANAY, AND 1.A. NIENHUIS,
Petitioners,
Vv.
ROMIRICO REMEIDIO,
Respondent.
° : +
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
a
PETITION FOR A WRIT OF CERTIORARI
S 7
BILL LOCKYER
Attorney General of the
State of California
JAMES M. HUMES
Chief Assistant Attorney General
MANUEL M. MEDEIROS
State Solicitor General
FRANCES T. GRUNDER
Senior Assistant Attorney General
THOMAS S. PATTERSON*
Deputy Attorney General
State Bar No. 202890
455 Golden Gate Avenue,
Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-5727
Facsimile: (415) 703-5843
Counsel for Petitioners
*Counsel of Record
ae ene oe es a laced
ae ———— ame
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED
Can an inmate proceed on a civil-rights claim that
prison officials retaliated against him for First Amend-
ment expression if the action taken against the inmate
objectively served a legitimate penological purpose?
ii
TABLE OF CONTENTS
Page
QUESTION FRR Rtn re Cpe P i cccecccccessecreseressereeseevvevesecessees i
PETITION FOR WRIT OF CERTIORARI ................... 1
CPTI a ee iintertentcetenesececveseseoseees 1
Fes he eae eiieindanetitesterecececoveseveessess 1
CONSTITUTIONAL PROVISIONS INVOLVED.......... 1
SEAT Ree wisest aaa albibiwrenevecteseceveseescoees 2
A. The Cell Search and Eventual Disciplinary
Action Stemmed from an Investigation
into Dlicit Activities Among Inmates in the
LS 2
B. The District Court Granted Summary
Judgment on the Retaliation Claim, but
the Ninth Circuit Reversed, Holding that
Regardless of the Legitimate Bases for the
Action Against Mr. Remeidio, Summary
Judgment Was Improper Because of a Dis-
pute Over the Officials’ Motivation ............ 5
REASONS FOR GRANTING THE PETITION............ 7
I. The Circuits Are Divided on Whether an
Inmate’s Retaliation Claim Is Defeated by Ob-
jectively Legitimate Penological Goals for the
Adverse Action, and If Not, What the Proper
Standard of Pleading and Proof Is for Deciding
a nn cwwnccsvcersencs 7
II. The Circuits that Allow a Prisoner to Chal-
lenge an Objectively Legitimate Action As Re-
taliatory Are in Conflict with Turner v. Safley
and Out of Step with Hartman v. Moore........... 10
TABLE OF CONTENTS — Continued
Page
III. The Dispute Among the Circuits Potentially
Impacts a Substantial Portion of the Federal
SII sxccecassnsineunstisminegnrepeaninniiihinianionammanaiiiiaa 13
lv
TABLE OF AUTHORITIES
Page
CASES
Allen v. Thomas, 388 F.3d 147 (5th Cir. 2004).................. 14
Babcock v. White, 102 F.3d 267 (7th Cir. 1996)............. 9,14
Barnett v. Centoni, 31 F.3d 813 (9th Cir. 1994).................. 2)
Bigelow v. Virginia, 421 U.S. 809 (1975) 0... eeeeseeereees 1
Bruce v. Ylst, 351 F.3d 1283 (9th Cir. 2008)................... 6, 8
Cornell v. Woods, 69 F.3d 1383 (8th Cir. 1995)................. 10
Davidson v. Flynn, 32 F.3d 27 (2d Cir. 1994)........... eee 14
Goff v. Burton, 7 F.3d 734 (8th Cir. 1993)............cseceesees 10
Graham v. Henderson, 89 F.3d 75 (2d Cir. 1996)...... 8, 9, 10
Hall v. Sutton, 755 F.2d 786 (11th Cir. 1985) ................0. 14
Hartman v. Moore, 126 S. Ct. 1695 (2006)............. 11, 12, 13
Henderson v. Baird, 29 F.3d 464 (8th Cir. 1994) ................ 7
Hewitt v. Helms, 459 U.S. 460 (1983) ..............cccceseceeseeeees 10
Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997)............... 9, 15
Layne v. Vinzant, 657 F.2d 468 (1st Cir. 1981) .....20.0........ 10
Marshall v. Knight, 445 F.3d 965 (7th Cir. 2006)............. 14
Morris v. Powell, 449 F.3d 682 (5th Cir. 2006)................ 14
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
a Bee EE itinstans psn casnctinhicanigniananecmbbantinniiie 9, id
Orebaugh v. Caspari, 910 F.2d 526 (8th Cir. 1990) .. 7, 8, 10
Peterson v. Shanks, 149 F.3d 1140 (10th Cir. 1998).......... 10
Pratt v. Rowland, 65 F.3d 802 (9th Cir. 1995).................. 14
v
TABLE OF AUTHORITIES — Continued
Page
Rauser v. Horn, 241 F.3d 330 (8d Cir. 2001)....................00 9
Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005) ............ 14
Superintendent v. Hill, 472 U.S. 445 (1985) .........ccceceeeseees 8
Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999).....9, 15
Turner v. Safley, 482 U.S. 78 (1987)............:000 10, 11, 12, 13
Woods v. Smith, 60 F.3d 1161 (5th Cir. 1995)................... 10
STATUTES
28 U.S.C.
cs aici si cihiah ios a daca aadelliiimpannanenadhacudesepuaaiiliniteadte 1
42 U.S.C.
I i niriis isis caainiscncuslia d edunannaahadbishiiiaieauadanenihiastneainiel 2,8
IT ssidins <dnciits his stlascoidibsdintennensnnubicaslonniusancddéabaencsieupiabetos 12
OTHER AUTHORITIES
Administrative Office of the U.S. Courts, Judicial
Business of the United States Courts 2005,
Table C-3 (Sept. 30, 2005), http://www.uscourts.
gov/judbus2005/appendices/c3. pdf .............:::sssseeeeeees 13
Administrative Office of the U.S. Courts, Judicial
Facts and Figures: U.S. District Court — Civil Cases
Filed by Nature of Suit, Table 4.6 (2005), avail-
able at http://Awww.uscourts.gov/judicialfactsfigures/
RET EON CITE Here TC Ne PLOT 13
1
PETITION FOR WRIT OF CERTIORARI
Petitioners Jeanne S. Woodford, Dewey Wooten,
Anthony P. Kane, H. Williams, D.A. Dacanay, and I.A.
Nienhuis — who are current and retired employees of the
California Department of Corrections and Rehabilitation —
respectfully petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
Ninth Circuit in this case.
42
Vv
OPINIONS BELOW
The court of appeals’ opinion (App., infra, 1-4) is
unpublished but reported at 173 F. App’x 636. The district
court’s opinion granting summary judgment (App. 5-32) is
also unpublished but available at 2004 WL 1635561.
,
Vv
JURISDICTION
The court of appeals entered judgment on April 5,
2006 (App. 1) and denied a timely petition for rehearing on
May 1, 2006 (App. 33). This Court may exercise jurisdic-
tion under 28 U.S.C. § 1254(1). =
,
v
CONSTITUTIONAL PROVISIONS INVOLVED
The First Amendment to the United States Constitu-
tion, which is applicable to the States through the Four-
teenth Amendment, Bigelow v. Virginia, 421 U.S. 809,
811 (1975), states that “Congress shall make no law...
abridging the freedom of speech ... or the right of the
2
people ... to petition the Government for a redress of
grievances.”
,
ww
STATEMENT
The Respondent, Romirico Remeidio, is a former
inmate from San Quentin State Prison, who contends that .
various prison officials retaliated against him for his First
Amendment expression. Specifically, he alleges that after
he complained about the prison’s College Program, officials
searched his cell and found prohibited gambling and
pornographic materials, and that this discovery led to
disciplinary action against Mr. Remeidio, the eventual
denial of his parole, his confinement in administrative
segregation, and transfer to another prison. (App. 5-11.)
The complaint, which was filed under 42 U.S.C.
§ 1983, alleged retaliation, due-process, and equal-
protection claims. (Id. at 14-15.) The retaliation claim
alleged only that the search and administrative segrega-
tion were retaliatory. (/d. at 21.) The complaint demanded
compensatery damages, punitive damages, and declara-
tory and injunctive relief, including expungement of all
adverse reports from Mr. Remeidio’s prison central file.
A. The Cell Search and Eventual Discipli-
nary Action Stemmed from an Investiga-
tion into Dllicit Activities Among Inmates
in the College Program.
San Quentin’s College Program allows volunteers to
enter the prison and provide college-level courses to inmates.
In 2001, Defendant Nienhuis, the former Community
3
Resource Manager at San Quentin, learned of conflict that
was developing among some inmates, volunteers, and the
program’s coordinator about the leadership and direction
of the program. (App. 5-6.)
As Mr. Nienhuis looked into the issue, several mem-
bers of the College Program expressed concern to him
about the program’s stability and safety, and that some
inmates may have been creating conflict within the Col-
lege Program. (See id. at 6.) In particular, Mr. Nienhuis
learned that inmates may have been trying to change the
nature of the program and remove its coordinator in order
to gain freer access to the program volunteers and thereby
engage in illicit activity with them. (Id. at 6-7.)
Mr. Nienhuis was also aware that two inmates in-
volved in the College Program were previously investi-
gated for fostering inappropriate romantic relationships
with volunteers in other prison programs. (Jd.) After
reviewing a proposal by several inmates within the Col-
lege Program, including Mr. Remeidio, that used harsh
and discrediting language regarding the College Program
coordinator, Mr. Nienhuis began working with San Quen-
tin’s Investigative Services to determine if any unauthor-
ized or illegal activities were occurring within the College
Program. (See id.)
With the consent of San Quentin’s warden at the time,
Jeanne Woodford, Mr. Remeidio’s cell was searched and
documents were seized. (Jd. at 7.) When Mr. Nienhuis
reviewed the documents, he found no evidence that Mr.
Remeidio was engaging in illicit activity connected to the
College Program. But he did find gambling materials,
hardcore pornographic photographs depicting bestiality,
and several loose magazine pages of other hardcore
4
pornography. (See id. at 7-8.) All of these items are contra-
band under prison regulations. (Jd. at 8.)
Before the cell search, Mr. Remeidio had been recom-
mended for parole. (Jd. at 7.) Following discovery of the
prohibited materials, a classification committee headed by
Defendant Dacanay anticipated that if Mr. Remeidio was
denied parole because of the contraband, he might react
unfavorably and create a security threat as a possible
escape risk. (Jd. at 8.) Thus, the committee placed him in
administrative segregation pending the disciplinary
charges. (Id.)
Eventually, Mr. Remeidio was only reprimanded for
possessing gambling materials after the rules-violation
charge was reduced to a “counseling chrono” (id. at 11),
but he was found guilty of a prison-rules violation for
possessing the pornography (id. at 8.) His parole was
denied (id. at 10), and out of continuing concern that he
might pose a security threat, a classification committee
headed by Defendant Kane recommended that Mr. Re-
meidio be retained in administrative segregation and
considered for transfer to a more-secure prison (id. at 10.)
Later, Defendant Wooten headed a classification commit-
tee that also recommended transfer to another prison,
citing Mr. Remeidio’s two disciplinary charges within
recent months, the parole denial, possible future parole
denials, and San Quentin’s lack of modern security fea-
tures. (Id.)
Although Mr. Remeidio was not personally linked to
improper activity within the College Program, the investi-
gation uncovered threats to San Quentin’s security caused
by prohibited activities between program volunteers and
two other inmates, Mike Viet Ngo and Eddy Zheng. (See
-5
id. at 9-10.) According to the record, officials found that
Mr. Ngo was involved in an illicit romantic relationship with
a female volunteer, both of whom shared violent ideologies
that advocate governmental overthrow. In their correspon-
dence, the two spoke of revolution and effecting change
through violence. The volunteer spoke of whether she had
“resolve to hold the gun,” and Mr. Ngo believed that he would
be killed while in prison. The officials also found that Ngo
and the volunteer smuggled items through prison security, as
did Mr. Zheng and another female volunteer.
B. The District Court Granted Summary
Judgment on the Retaliation Claim, but
the Ninth Circuit Reversed, Holding that
Regardless of the Legitimate Bases for the
Action Against Mr. Remeidio, Summary
Judgment Was Improper Because of a Dis-
pute Over the Officials’ Motivation.
The district court granted summary judgment to the
officials on all of the claims, including retaliation, based on
the above facts. (App. 31.) As to the retaliation claim, the
court noted that officials are entitled to appropriate
deference concerning their asserted legitimate penological
reasons for conduct alleged to be retaliatory. (Id. at 22.)
Finding that Mr. Remeidio failed to show that there was
“no legitimate penological objective to defendants’ actions,”
the court ruled that the retaliation claim failed as a
matter of law. (id. at 22-23.) Further, the court reasoned
that the officials provided significant evidence that the
search advanced legitimate penological goals. (Jd. at 23-24.)
And it held that although Mr. Remeidio presented some
evidence that “may tend to support defendants’ intent to
retaliate,” the officials showed that the administrative
6
segregation and later transfer “were made pursuant to
legitimate penological goals.”
On appeal, the Ninth Circuit affirmed summary
judgment on the due-process and equal-protection claims
but reversed on the retaliation claim. (Jd. at 1-4.) The
court specifically confirmed that the “defendants were
within their rights to search Remeidio’s cell,” but held that
summary judgment was improper because there was a
dispute over the officials’ actual motivation for their
conduct. (Jd. at 2.) As the court noted, Mr. Remeidio
contended that no other inmate was similarly punished for
possession of similar contraband or had been placed in
administrative segregation after a denial of parole. (Id.)
Further, the verified complaint alleged that before the
contraband was discovered, Mr. Remeidio’s correctional
counselor told him that he would be transferred because
he complained about the College Program. (Id.) Although
_ the court conceded that the evidence of improper motive
may be of limited force, it was enough to create a dispute
of material fact about motive. (Jd.) Thus, in line with the
Ninth Circuit’s retaliation precedent, the court held that
summary judgment could not be granted. See Bruce v. Yist,
351 F.3d 1283, 1289 (9th Cir. 2003) (holding that summary
judgment on a prisoner’s retaliation claim is improper if
there is a dispute over the official’s motive).
In addition, the Ninth Circuit ruled that the officiais
could not receive qualified immunity. (Jd. at 2-3.) Rather
than examining whether a reasonable official in Defen-
dants’ position could have believed that the conduct was
lawful, the court held generally that retaliatory punish-
ment is clearly unlawful within the Ninth Circuit. (Jd. at
7
2-3.) It then remanded the case for further proceedings.
(Id. at 3.)
2
Vv
REASONS FOR GRANTING THE PETITION
I. The Circuits Are Divided on Whether an
Inmate’s Retaliation Claim Is Defeated by Ob-
jectively Legitimate Penological Goals for the
Adverse Action, and If Not, What the Proper
Standard of Pleading and Proof Is for Decid-
ing the Claim.
There is conflict among the circuits over the proper
standard for deciding a prisoner’s retaliation claim when
the defendant-official’s subjective motive is disputed. First,
the circuits disagree about whether a retaliation claim is
defeated if the official puts forth an objectively legitimate
reason for taking adverse action against the inmate
Second, the circuits that allow a claim to proceed despite
an objectively legitimate reason disagree over what stan-
dards of pleading and proof apply to establish a retaliatory
motive.
The Eighth Circuit focuses on whether the action
against the inmate was objectively legitimate, and not on
any dispute over the officials’ subjective motive, when
considering retaliatory-discipline cases. Henderson uv.
Baird, 29 F.3d 464, 469 (8th Cir. 1994). The court holds
that such claims fail if the disciplinary action is objectively
legitimate. Jd. (stating that an adequate evidentiary basis
for a disciplinary conviction “essentially checkmates” the
claim); see also Orebaugh v. Caspari, 910 F.2d 526, 528
(8th Cir. 1990) (holding that “no claim can be stated when
the alleged retaliation arose from discipline imparted for
8
acts that a prisoner was not entitled to perform”). And to
be objectively legitimate, the conviction must simply
satisfy the some-evidence test under Superintendent uv.
Hill, 472 U.S. 445, 454-56 (1985), which holds that disci-
plinary findings satisfy due-process standards if they are
supported by some evidence. As the Eighth Circuit ex-
plains, applying any other rule would allow a prisoner to
file an inmate grievance or lawsuit, “openly flout prison
rules,” and then file suit under § 1983 alleging that the
prison officials disciplined him in retaliation. Orebaugh,
910 F.2d at 528.
The Second Circuit declines to apply such an ap-
proach. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.
1996). The court reasons that an objective inquiry like the
some-evidence test does not fit into the analysis of a claim
that concerns subjective motivation. Id. Of course, this
reasoning assumes that a prisoner who brings a retalia-
tion claim need not show both improper subjective motive
and a lack of an objectively legitimate penological interest.
Whether the latter must be shown is the question pre-
sented here.
The Ninth Circuit has vacillated between the Eighth
and Second Circuit’s approaches. Generally, the Ninth
Circuit holds that the objective some-evidence test does
“not apply to retaliation claims.” Bruce v. Yist, 351 F.3d
1283, 1289 (9th Cir. 2003). Thus, in a case alleging retalia-
tion because an inmate was classified as a gang member
and placed in administrative segregation, the court held
that the inmate was entitled to proceed to trial as long as
there was a dispute over the officials’ intent, “even though
[the inmate] may have arguably ended up where~he
belonged.” Jd.
9
In other cases, however, the Ninth Circuit has given
at least some of the defendants the benefit of an objective-
legitimacy inquiry. For example, the court held in a case
alleging retaliatory reclassification that the officers were
entitled to judgment because there was some evidence to
support the reclassification, which “serv-d the legitimate
penological purpose of maintaining prison discipline.”
Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994). And in
a retaliatory-discipline case, the court held that a discipli-
nary-board member was entitled to judgment as a matter
of law after trial because there was evidence to support
the guilty finding, but that the officer who brought the
same charge was not entitled to judgment. Hines v. Gomez,
108 F.3d 265, 268-70 (9th Cir. 1997). The court’s only
explanation for this distinction was that a disciplinary
board is required to provide inmates due-process protec-
tions like notice and a hearing, which apparently help to
prevent retaliation, but the charging officer need not
provide such protections. Jd. at 268-69.
Other circuits also allow an inmate to proceed on a
retaliation claim despite the existence of objective legiti-
macy, but there is a further split over the standards of
pleading and proof to determine whether the official was
actually motivated by retaliatory animus. As previously
discussed, the Ninth Circuit allows the inmate to proceed
to trial as long as there is a dispute over motivation.
Bruce, 351 F.3d at 1289. Other circuits — the Second,
Third, Sixth, and Seventh — follow the standard used in
employment-retaliation cases, as set forth in Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S.
274 (1977). Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001);
Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999);
Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996). Under
10
this standard, the inmate must first raise an inference
that the protected conduct was a substantial or motivating
factor for the adverse action. Graham, 89 F.3d at 80. Then
the burden shifts to the official to show that he would have
taken the same action absent the protected conduct. Jd.
The Eighth Circuit criticizes the application of Mt. Healthy
to prisoners’ retaliation cases, noting that Mt. Healthy was
not a prison-retaliation case, Goff v. Burton, 7 F.3d 734,
738-39 (8th Cir. 1993), and that its application in the
prison context allows an inmate to disobey prison regula-
tions and then file suit when he receives the discipline he
deserves, Orebaugh, 910 F.2d at 528.
The rest of the circuits to address the issue — the
First, Fifth, and Tenth, along with the Eighth in relation
to retaliatory-transfer cases — decline to apply the Mz.
Healthy test for prison-retaliation cases and have adopted
a “but for” test. Layne v. Vinzant, 657 F.2d 468, 475 (1st
Cir. 1981); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.
1995); Cornell v. Woods, 69 F.3d 1383, 1388-89 (8th Cir.
1995); Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.
1998). These circuits, in apparent recognition of the
burden that retaliation suits impose on prison officials,
place on the inmate the burden of showing that the official
would not have taken the adverse action “but for” the
protected conduct. E.g., Layne, 657 F.2d at 475.
IL The Circuits that Allow a Prisoner to Challenge
an Objectively Legitimate Action As Retalia-
tory Are in Conflict with Turner v. Safley and
Out of Step with Hartman v. Moore.
Because this Court has held that a restriction on an
inmate’s First Amendment rights is legitimate as long as it
is objectively reasonable, inmates should not be able to
11
challenge objectively legitimate conduct as retaliatory. In
Turner v. Safley, 482 U.S. 78, 89 (1987), the Court bal-
anced its competing goals of protecting inmates’ constitu-
tional rights and providing substantial deference to prison
administrators’ professional judgment, by holding that
burdens on inmates’ fundamental rights are constitutional
if they are “reasonably related to legitimate penological
interests.” Key to this inquiry is whether there is “a ‘valid,
rational connection’ between the prison regulation and the
legitimate governmental interest put forward to justify it.”
Id. This consideration does not analyze the official’s
subjective motive, but whether there is a “logical connec-
tion between the regulation and the asserted goal.” Id.
(emphasis added).
Thus, if an official accused of retaliation can put forth a
legitimate basis for taking adverse action against an
inmate, and that basis is logically connected to the action,
the official should not be burdened by a retaliation suit
simply because the inmate challenges the officer’s motive.
As this Court recognized in Hewitt v. Helms, 459 U.S. 460,
474 (1983), the prison atmosphere is a volatile one, with
ever-present safety and security threats. Prison officials
should not be deterred from making objectively reasonable
decisions, which may have important safety and security
implications, because they are fearful that their action may
be construed as retaliatory, subjecting them to burdensome
litigation. Because it is all too easy for a prisoner to claim
retaliatory motive, and even present circumstantial evi-
dence of one, but very difficult for an officer to conclusively
refute such claims, Turner’s objective reasonableness
standard should apply to prisoners’ retaliation claims.
This Court’s recent decision in Hartman v. Moore, 126
S. Ct. 1695 (2006), also counsels that objective legitimacy
12
should be sufficient to defeat a prisoner’s retaliation claim.
Hartman holds that a plaintiff who alleges that govern-
mental officers induced criminal charges out of retaliation
must plead and prove an absence of probable cause. Id. at
1707. This decision is based on two factors with ready
analogies to the prison context.
First, Hartman explained that in _ retaliatory-
prosecution cases, there is a “distinct body of highly
valuable circumstantial evidence available and apt to
prove or disprove retaliatory causation, namely evidence
showing whether there was or was not probable cause to
bring the criminal charge.” Jd. at 1704. Likewise, in the
prison context, records exist to prove whether there was
an objectively legitimate basis for the action taken against
the inmate. Prisons regularly document both monumental
and mundane events concerning inmates. And because
of the Prison Litigation Reform Act’s administrative-
exhaustion requirement, 42 U.S.C. §1997e(a), inmates
cannot bring a claim to court without first exhausting
available administrative remedies — a process that typi-
cally documents any legitimate basis for the action about
which the inmate complains.
Second, Hartman’s decision was based on the “pre-
sumption that a prosecutor has legitimate grounds for the
action he takes.” Hartman, 126 S.Ct. at 1706. In the
prison context also, an official’s decision is entitled to a
high presumption of legitimacy. Turner, 482 U.S. at 84-85.
“Running a prison is an inordinately difficult undertaking
that requires expertise, planning, and the commitment of
resources, all of which are peculiarly within the province
of the legislative and executive branches of government.”
Id. When state prisons are involved, deference is further
required under federalism concerns. Id. at 85.
13
Thus, the rationale of both Turner and Hartman
dictate that prison officials should not be held to answer a
retaliation suit for objectively legitimate conduct. In line
with these decisions, an inmate alleging retaliatory action
should be required to allege and prove that the adverse
action did not further any legitimate penological interest.
Ill. The Dispute Among the Circuits Potentially
Impacts a Substantial Portion of the Federal
Docket.
The issue in this case potentially affects a great
number of cases before the federal judiciary. Over the last
six years, inmates have filed an average of over 24,000
prisoner-civil-rights and prison-conditions suits against
state and federal correctional officials. See Administrative
_ Office of the U.S. Courts, Judicial Facts and Figures: U.S.
District Court — Civil Cases Filed by Nature of Suit,
Table 4.6 (2005), available at http://www.uscourts.gov/
judicialfactsfigures/Table406.pdf. In 2005, there were
24,614 such cases, see id., accounting for 9.7% of all civil
cases nationwide, see id. Table 4.4 (noting that there were
a total of 253,273 civil cases filed). In the Ninth Circuit,
the percentage is even higher than the national average.
In 2005, 16.5% of all civil filings in the Ninth Circuit were
prisoner-civil-rights and prison-conditions cases. See
Administrative Office of the U.S. Courts, Judicial Business
of the United States Courts 2005, Table C-2 (Sept. 30,
2005), available at http://www.uscourts.ge«judbus2005/
appendices/c3.pdf (showing that there ~ere 6,890 civil
prisoner suits against state and feders officials and a
total of 41,662 civil cases).
14
Available statistics do not show the number of inmate
cases that include retaliation claims. But whenever an
inmate alleges some harm that is sufficient to state a
constitutional violation, whatever the claim might be, he
almost certainly has alleged sufficient harm for a retalia-
tion claim. In fact, alleged retaliatory action need not
independently violate the Constitution in order to be
cognizable. Babcock v. White, 102 F.3d 267, 275 (7th Cir.
1996); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
Rather, an inmate need only show some adverse action
that would chill an inmate of ordinary firmness from
exercising First Amendment rights in the future. See, e.g.,
Morris v. Powell, 449 F.3d 682, 685-86 (5th Cir. 2006)
(citing cases from the Second, Sixth, Seventh, and D.C.
Circuits); Rhodes v. Robinson, 408 F.3d 559, 568-69 (9th
Cir. 2005). Thus, courts have allowed inmates to proceed
on a variety of retaliation claims, relating to all aspects of
prison life. See, e.g., Marshall v. Knight, 445 F.3d 965, 970-
71 (7th Cir. 2006) (allowing inmate to allege claims that he
was put on idle status from his prison job without pay,
restricted from proper law-library access, denied educa-
tional and vocational opportunities, denied a transfer to
minimum security, and celled with violent inmates); Allen
v. Thomas, 388 F.3d 147, 150 (5th Cir. 2004) (holding that
inmate could proceed on a claim that his typewriter was
confiscated); Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir.
1994) (holding that the plaintiff stated a claim by alleging
that he was handcuffed too tightly); Hall v. Sutton, 755
F.2d 786, 788 (11th Cir. 1985) (allowing prisoner to proceed
on a claim that his tennis shoes were confiscated).
Moreover, inmates frequently engage in First
Amendment expression that might be construed as the
15
basis for adverse action. See, e.g., Hines v. Gomez, 108 F.3d
265, 268 (9th Cir. 1997) (holding that evidence of an
inmate’s reputation for filing grievances was relevant to
whether the officer had a retaliatory motive). Inmates file
appeals to challenge their convictions, administrative
grievances to address virtually every aspect of prison life,
and lawsuits to contest their conditions of confinement.
With such frequent First Amendment exercise, inmates
will often be able to point to factors suggesting that an
official might have had a retaliatory motive. See, e.g.,
Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (hold-
ing that circumstantial evidence, such as the timing of
events or disparate treatment of prisoners, is sufficient to
demonstrate retaliatory motive).
&
v
16
CONCLUSION
The petition for a writ of certiorari should be granted.
Dated: July 31, 2006
Respectfully submitted,
BILL LOCKYER
Attorney General of the State
of California
JAMES M. HUMES
Chief Assistant Attorney General
MANUEL M. MEDEIROS
State Solicitor General
FRANCES T. GRUNDER
s Senior Assistant Attorney General
THOMAS S. PATTERSON*
Deputy Attorney General
State Bar No. 202890
455 Golden Gate Avenue,
Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-5727
Facsimile: (415) 703-5843
Counsel for Petitioners
*Counsel of Record
App. 1
173 Fed.Appx. 636
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROMIRICO REMEIDIO, No. 04-16427
Plaintiff-Appellant, | D.C. No. CV-C¥-02212-SI
Vv. .
J. WOODFORD; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Yvonne Illston, District Judge, Presiding.
Argued and Submitted February 14, 2006.
San Francisco, California
(Filed Apr. 05, 2006)
Before: SILVERMAN, GRABER, and CLIFTON,
Circuit Judges.
Romirico Remeidio appeals the district court’s grant of
summary judgment in his 42 U.S.C. § 1983 action against
several California prison officials. We review the district.
court’s decision de novo, drawing all reasonable inferences
in favor of the non-moving party. Porter v. California
Department of Corrections, 419 F.3d 885, 891 (9th Cir.
* This disposition is not appropriate for publication and may not
be cited to or by the courts of this circuit except as provided by 9th Cir.
R. 36-3.
App. 2
2005). We affirm in part and reverse in part, and remand
for further proceedings on the retaliation claim.
We conclude that summary judgment should not have
been granted on the retaliation claim. To establish a First
Amendment retaliation claim, a prisoner must show “that
he was retaliated against for exercising his constitutional
rights and that the retaliatory action does not advance
legitimate penological goals.” Bruce v. Yist, 351 F.3d 1283,
1288 (9th Cir. 2003) (citation omitted). On the current
record, there is a genuine issue of material fact as to
whether the discipline imposed was retaliatory and not
motivated by a legitimate correctional purpose. Even
though the defendants were within their rights to search
Remeidio’s cell (which search led to the discovery of
contraband), Remeidio’s verified complaint asserts that no
other inmate within his cell block has ever been similarly
punished ~— in particular, issued a rules violation report —
for the possession of such contraband. The complaint. also
contends that no other inmate serving a life sentence has
been placed in administrative segregation when his parole
date was rescinded. Although the persuasive force of
Remeidio’s assertions on information and belief might be
limited, the defendants have offered no evidence to rebut
these allegations, thus permitting an inference that the
consequences he suffered were motivated in part by
retaliation and not by legitimate penological concerns.
Remeidio further alleges in his verified complaint that
even before the contraband was discovered, his correc-
tional counselor told him that he would be transferred
because he had signed the College Program petition,
thereby further bolstering the claim. The defendants are
not entitled to qualified immunity for this claim, because
“the prohibition against retaliatory punishment is ‘clearly
App. 3
established law’ in the Ninth Circuit, for qualified immu-
nity purposes.” Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.
1995) (citation omitted).
Summary judgment was proper on Remeidio’s equal
protection claim, which alleges that he was targeted
because of his Asian background. To the extent that his
claim alleges disparate treatment between himself and
other inmates in his cell block, that claim fails, because he
has not shown that the defendants’ actions “result{ed] in
members of a certain group being treated differently from
other persons based on membership in that group.”
McLean v. Crabtree, 173 F.3d 1176, 1185 (9th Cir. 1999)
(citation omitted). To the extent that his claim is based on
disparate treatment among the petition signatories, that
claim is also deficient because incriminating materials
were not found in the cell of the non-Asian signatory.
Therefore, Remeidio cannot show “that the defendant(s]
acted with an intent or purpose to discriminate against
him based upon his membership in a protected class.”
Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003).
The district court properly granted summary judg-
ment on Remeidio’s due process claim. This claim falls
short because Remeidio has not shown that due process
standards were violated. Although he claims that he was
prevented from introducing documentary evidence at the
hearing, cf. Serrano, 345 F.3d at 1077, he apparently only
wanted to present the letter and envelope that contained
the contraband. These documents would have apparently
been used to show that prison staff inspected the contra-
. band materials when they were delivered to Remeidio, and
to demonstrate that the materials were not openly dis-
played. Because Remeidio had a chance to testify and thus
App. 4
to make these points, the papers themselves would not
have affected the outcome of his hearing.
Each party to bear its own costs.
AFFIRMED in part; REVERSED and RE-
MANDED in part.
App. 5
2004 WL 1635561
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
-ROMIRICO REMEIDIO, _No. C 03-02212 SI
Plaintiff, ORDER GRANTING
: DEFENDANTS’
: MOTIONS FOR
J. WOODFORD, et al. SUMMARY JUDGMENT
Defendant. _ (Filed Jul. 1, 2004)
ENTERED IN CIVIL DOCKET ___7/2/04
Plaintiff Romirico Remeidio, an inmate at San Quen-
tin State Prison, filed this civil rights complaint under 42
U.S.C. § 1983. Defendants move for summary judgment
pursuant to Fed.R.Civ.P. 56. For the reasons set forth
below, the Court GRANTS defendants’ motions for sum-
mary judgment with respect to plaintiff’s three causes of
action.
BACKGROUND
Plaintiff Romirico Remeidio is a prisoner serving a life
term following his 1981 conviction for second degree
murder. Cattermole Decl. Ex. B. From July 15, 1993 to
October 18, 2002, plaintiff was incarcerated at California
State Prison, San Quentin, including the period June 11,
2002 to October 18, 2002 in which plaintiff was housed in
administrative segregation. Cattermole Decl. Ex. C.
In the latter part of 2001, defendant Nienhuis, serving
as Community Resource Manager, learned of a dispute
between several supervi: ~s and coordinators of the San
App. 6
Quentin College Program. Nienhuis Decl. { 3(A), Ex. A at
2. Nienhuis learned that the former coordinator of the
College Program, Janowitz, was attempting to replace the
current program through Patton College with another
program. Jd. Furthermore, Nienhuis was informed that
inmates may be encouraging this dispute. Jd. Plaintiff
disputes use of the term “conflict” and whether Janowitz
was attempting to have the College Program replaced.
Opp’n at 1.
During January of 2002, Lewen, the coordinator of the
College Program at the time, discussed with Nienhuis the
rights of prisoners to correspond with volunteers of the
College Program. Nienhuis Decl. 7 3(D), Ex. A at 2-3. It
became apparent to Nienhuis that some inmates wanted
to change the program to allow more interaction between
the program volunteers and inmates. Jd. Nienhuis advised
Lewen that more interaction between inmates and volun-
teers was not appropriate due to safety concerns. Id.
During the week of April 29, 2002, Educational Officer
Davis and Academic Teacher DeArteaga discussed their
concerns with Nienhuis about the College Program.
Nienhuis Decl. { 3(C), Ex. A at 3-4. Their concerns focused
on a list of demands some inmates made at a College
Program meeting. Jd. During the week of April 29th,
Nienhuis also met with Lewen. Nienhuis Decl. { 3(D), Ex.
A at 3. Lewen told Nienhuis that she had received a
document entitled “Proposal For Academic Committee To
Manage The San Quentin College Program” (“Inmates’
Proposal”), which contained the inmates’ complaints
expressed at the earlier meeting. Id.
Dating back to December 2000, Nienhuis suspected
illicit activities by two of the other inmates signing the
App. 7
proposal with plaintiff. Nienhuis Decl. { 3(F), Ex. A at 4.
These two inmates had fostered inappropriate relation-
ships with volunteers in another prison program. Jd. In
light of this history, Nienhuis was concerned about rela-
tionships between volunteers and the inmates in the
College Program. Jd. Plaintiff contends these two inmates
were never found guilty of improper relationships in the
earlier circumstances. Opp’n at 2.
On May 10, 2002, Nienhuis informed defendant
Warden Woodford about the College Program situation.
Nienhuis Decl. { 3, Ex. A at 3. Woodford instructed Nien-
huis to work with the Investigational Services Unit to
investigate the signatories of the Inmates’ Proposal for
possible involvement in unauthorized activities. Jd. Based
on these instructions, beginning May 10, 2002, Nienhuis
began an investigation into possible unauthorized activi-
ties of plaintiff and the three other signatories of the
Inmates’ Proposal. Nienhuis Decl. {{ 1, 3; Ex. A at 1.
On May 13, 2002, plaintiff appeared in front of the
Board of Prison Terms (“BPT”), which recommended that
he be granted a parole date. Cattermole Decl. Ex. D. On
May 15, 2002, Plaintiff’s cell was searched pursuant to
_ the College Program investigation. Nienhuis Decl. 7 4, Ex.
A at 4. During the search, plaintiff’s written materials
were confiscated. Jd. On May 28, 2002, the materials
seized from plaintiff’s cell were searched, yielding gam-
bling materials, two pages of hardcore pornographic
material printed from the internet, and additional loose
magazine pages depicting hardcore pornographic material.
Nienhuis Decl. { 5, Ex. C at 43-44. On June 10, 2002,
Nienhuis issued plaintiff a Rules Violation Report (“RVR”)
for possession of pornographic materials. Nienhuis Decl.
q 7, Ex. C at 43-44.
App. 8
On June 11, 2002, plaintiff was placed on administra-
tive segregation status out of concern that the recent RVR
might affect plaintiff’s behavior, given the potential
impact of the RVR on plaintiff’s recent recommendation
for a parole date. Cattermole Decl. Ex. F. Three days later
plaintiff appeared before an Institutional Classification
Committee (“ICC”) chaired by defendant Dacanay. Cat-
termole Decl. Ex. G. The ICC recommended that plaintiff
remain in administrative segregation until adjudication of
the RVR, in light of the potential for plaintiff to lose his
parole date and out of concern for the safety and security
of the facility in such an event. Jd. Furthermore, the ICC
referred the issue of extending the administrative segrega-
tion due to possible loss of plaintiff’s parole date to the
Classification Staff Representative (“CSR”). Jd. On June
25, 2002, the CSR approved a 90 day administrative
segregation extension due to the pending RVR and its
potential impact on plaintiff’s parole date. Cattermole
Decl. Ex. G.
On June 28, 2002, a disciplinary hearing was held on
plaintiff’s RVR, chaired by defendant Williams. Williams
Decl. {{ 5-9; Nienhuis Decl. Ex. C. Plaintiff was given all
pertinent documentation 24 hours prior to the hearing and
at the hearing stated he was ready to proceed. Williams
Decl. {7 5-9. At the hearing plaintiff entered a plea of not
guilty, but admitted to possessing the hardcore porno-
graphic material in question. Id.; Nienhuis Decl. Ex. C.
Plaintiff was found guilty of “Possession of Obscene
Material Depicting Anal and Vaginal Penetration and
Bestiality” in violation of California Code of Regulations,
Title 15, § 3006(c)(15)(C)(1) and (2), an administrative
level offense. Id. The decision was based on three finding:
(i) plaintiff admitted to possessing the material stated in
App. 9
the RVR, (ii) the RVR was accurate and correct, and (iii)
the material was contraband. Id.
Plaintiff claims he was not afforded sufficient due
process. Opp’n at 3-4. He alleges that he was denied “the
right to present documentary evidence in mitigation of the
charges” and that the hearing officer “refused to accept
documents in my defense,” in violation of California Code
of Regulations, Title 15, section 3329. (“The inmate may
present documentary evidence in defense or mitigation of
the charges.”) Id.; see also Remeidio Compl. Claim I.
Furthermore, plaintiff alleges Nienhuis withheld key
evidence, because the hearing officer was not given the
“letter and envelope containing the obscene materials.”
Remeidio Compl. Claim 1. Plaintiff does not state what
“documentary evidence in mitigation of the charges” he
wished to present, nor what “documents in my defense”
might have been presented, except for the “letter and
envelope containing the obscene materials.”
On July 19, 2002, plaintiff appeared before a second
ICC chaired by defendant Dacanay for review of plaintiff’s
administrative segregation. Cattermole Decl. Ex. I. The
ICC noted that plaintiff had been found guilty of an RVR
and that the Governor’s Office was still reviewing his
parole date. Id. The ICC concluded the plaintiff should be
kept in administrative segregation, because if plaintiff’s
parole date was rescinded, he would pose a security threat
as a possible escape risk. Jd. Furthermore, the ICC re-
ferred the issue of transfer to more secure institution to
the CSR. Id.
On or about July 26, 2002, defendant Nienhuis con-
cluded his investigation into the College Program. Nien-
huis Decl. { 9, Ex. A at 39-40. Nienhuis concluded two of
App. 10
the signatories on the Inmates’ Proposal had engaged in
inappropriate relationships with volunteers and had
circumvented prison security by trafficking materials into
and out of the institution. Jd. Nienhuis found that there
was insufficient information to find that plaintiff had
engaged in inappropriate relationships or circumvented
prison security. Id.
On July 31, 2002, the Board of Prison Terms Decision
Review Unit recommended disapproval of the May 13,
2002 recommendation for a parole date. Cattermole Decl.
Ex. J. On August 14, 2002, the BPT, sitting en banc,
disapproved the May 13, 2002 recommendation for a
parole date. Cattermole Decl. Ex. K.
On August 23, 2002, plaintiff appeared before an ICC,
chaired by defendant Kane, for review of plaintiff’s
administrative segregation. Cattermole Decl. Ex. L. The
ICC decided to continue plaintiff’s administrative segre-
gation, taking into account plaintiff’s 90 day extension of
administrative segregation, the BPT decision of August 14,
and the pending disciplinary action for gambling. Catter-
mole Decl. Ex. L. Additionally, the ICC referred the case to
the CSR to consider transfer to a more secure institution.
Id.
On October 4, 2002, plaintiff appeared before an ICC
chaired by defendant Wooten for review of plaintiff’s
administrative segregation. Cattermole Decl. Ex. N. The
ICC recommended that plaintiff be transferred to a more
secure institution. Jd. This recommendation was based on
plaintiff’s two RVRs in recent months, his denial of parole,
possible future denials of parole and because San Quentin
was an older facility lacking modern security features. Id.
On October 18, 2002, plaintiff was transferred from San
App. 11
Quentin to California State Prison, Solano. Cattermole
Decl. Ex. C.
Sometime between July 30, 2002 and August 27, 2002,
plaintiff was issued an RVR for participating in a gam-
bling pool based on gambling materials seized from plain-
tiff’s cell on May 15, 2002. Cattermole Decl. Ex. M. Due to
lack of evidence and failure to meet time constraints,
sometime in September 2002 the gambling RVR was
reduced to a CDC-128A Counseling Chrono, and plaintiff
received a reprimand. Id.
On May 13, 2003, plaintiff, proceeding pro se, filed a
complaint against Dacanay, Kane, Lemos, Nienhuis,
Williams, Woodford and Wooten. Remeidio Compl. Claims
1, 2 and 3. Defendants’ responded with a request for
screening review under 28 U.S.C. § 1915A. Defs’ Req. for
Screening Review at 1. Pursuant to defendants’ request,
the Court issued an order on August 13, 2003 dismissing
with leave to amend the claim for an equal protection
violation, dismissing without leave to amend the claim
based on administrative review, and dismissing defendant
Lemos. Order of Dismissal with Leave to Amend at 7-8. On
September 5, 2003, plaintiff filed an amendment to the
equal protection claim, alleging a claim against Dacanay,
Kane, Nienhuis, Woodford, and Wooten. Amendment to
Compl. at 1-4.
Now before the Court is defendants’ motion for sum-
mary judgment, filed February 20, 2004. Defs’ Mot. for
Summ. J. On February 23, 2004, prior to filing an opposi-
tion to the summary judgment motion, Charles Carbone
was added as plaintiff’s attorney. Notice of Appearance of
Carbone at 1.
App. 12
LEGAL STANDARD
The Court will grant summary judgment “against a
party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial ... since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessar-
ily renders all other facts immaterial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (a
fact is material if it might affect the outcome of the suit
under governing law, and a dispute about a material fact
is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party”).
Generally, as is the situation with defendants’ chal-
lenge to. the plaintiff’s § 1983 claims, the moving party
bears the initial burden of identifying those portions of the
record which demonstrate the absence of a genuine issue
of material fact. Celotex, 477 U.S. at 324. The burden then
shifts to the nonmoving party to “go beyond the pleadings,
and by his own affidavits, or by the ‘depositions, answers _
to interrogatories, or admissions on file,’ designate ‘specific
facts showing that there is a genuine issue for trial.”’ Id.
(citations omitted).
Where, as is the situation with a qualified immunity
defense, the moving party bears the burden of proof at
trial and must come forward with evidence which would
entitle him to a directed verdict if the evidence went
uncontroverted at trial. See Houghton v. South, 965 F.2d
1532, 1536 (9th Cir.1992). He must establish the absence
of a genuine issue of fact on each issue material to his
App. 13
affirmative defense. Jd. at 1537; see also Anderson v.
Liberty Lobby, Inc., 477 U.S. at 248. When the defendant-
movant has come forward with this evidence, the burden
shifts to the non-movant to set forth specific facts showing
the existence of a genuine issue of fact on the defense.
A verified complaint may be used as an opposing
affidavit under Rule 56, as long as it is based on personal
knowledge and sets forth specific facts admissible in
evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 and
nn. 10-11 (9th Cir.1995) (treating plaintiff’s verified
complaint as opposing affidavit where, even though
verification not in conformity with 28 U.S.C. § 1746,
plaintiff stated under penalty of perjury that contents
were true and correct, and allegations were not based
purely on his belief but on his personal knowledge). Here,
the Court will consider as evidence Remeidio’s verified
Complaint, and his Amendment of Equal Protection
Claim.
The court’s function on a summary judgment motion
is not to make credibility determinations or weigh conflict-
ing evidence with respect to a disputed material fact. See
T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir.1987). The evidence must be viewed in
the light most favorab to the nonmoving party, and the
inferences to be drawn from the facts must be viewed in a
light most favorable to the nonmoving party. See id. at
631.
Title 42 U.S.C. § 1983 “provides a cause of action for
the ‘deprivation of any rights, privileges, or immunities
secured by the Constitution and laws’ of the United
States.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508,
110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (quoting 42 U.S.C.
App. 14
§ 1983). Section 1983 is not itself a source of substantive
rights, but merely provides a method for vindicating
federal rights elsewhere conferred. See Graham v. Connor,
490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989). To state a claim under § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated
and (2) that the alleged violation was committed by a
person acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40
(1988); Ketchum v. Alameda County, 811 F.2d 1243, 1245
(9th Cir.1987).
DISCUSSION
Defendants seek summary judgment on all of plain-
tiff’s claims and to assert qualified immunity. Defs.’ Mot.
for Summ. J. at 1. As amended, plaintiff makes three
claims under 42 U.S.C. § 1983 against the defendants. See
Remeidio Compl. Claims-1, 2 and 3; see also Amendment
to Compl. First, plaintiff makes an equal protection claim
against defendants Nienhuis, Woodford, Kane, Wooten,
and Dacanay based on alleged different treatment of Asian
inmates by defendants. Amendment to Compl. at 4.
Second, plaintiff makes a retaliation claim against defen-
dants Woodford, Nienhuis, Dacanay, Kane, and Wooten
based on alleged retaliation against plaintiff for signing
the Inmates’ Proposal. Remeidio Compl. Claim 2; see also
Order of Dismissal with Leave to Amend at 5-6. Finally,
plaintiff makes a due process claim against defendants
Williams, Nienhuis and Woodford arising from the alleged
denial of due process procedural protections during his
disciplinary hearing for possession of pornographic material.
App. 15
Remeidio Compl. Claim 3; see also Order of Dismissal with
Leave to Amend at 3-4.
1. Plaintiff’s equal protection rights were not vio-
lated ;
Plaintiff makes two arguments concerning his equal
protection rights. Amendment to Compl. at 4. First,
plaintiff alleges that defendants Nienhuis and Woodford
singled out plaintiff, as one of three Asian signatories on
the Inmates’ Proposal, for punishment. Id. Second, plain-
tiff alleges defendants Woodford, Kane, Wooten, and
Dacanay treated plaintiff differently than other inmates
when they placed him in administrative segregation and
transferred him to a different institution because of his
race. Id. at 3-4.
“The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to any
person within its jurisdiction the equal protection of the
laws,’ which is essentially a direction that all persons
similarly situated should be treated alike.” City of Cle-
burne v. Cleburne Living Center, 473 U.S. 432, 439, 105
S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting Plyler v. Doe,
457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)).
“Prisoners are protected under the Equal Protection
Clause of the Fourteenth Amendment from invidious
discrimination based on race.” Wolff v. McDonnell, 418
U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (cita-
tion omitted). Invidious racial discrimination such as
racial segregation, which is unconstitutional outside
prisons, is unconstitutional within prisons, save for the
necessities of prison security and discipline. Cruz v. Beto,
App. 16
405 U.S. 319, 321, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972);
Johnson v. California, 207 F.3d 650, 655 (9th Cir.2000).
A plaintiff alleging denial of equal protection under 42
U.S.C. § 1983 must plead intentional unlawful discrimina-
tion or allege facts that are at least susceptible of an
inference of discriminatory intent. See Monteiro v. Tempe
Union High School Dist., 158 F.3d 1022, 1026 (9th
Cir.1998). In addition, the claim must be rejected if the
prison regulation or practice claimed to have infringed on
an inmate’s constitutional rights is “reasonably related to
legitimate penological interests.” Turner v. Safley, 482 U.S.
78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); see also
Washington v. Harper, 494 U.S. 210, 223-25, 110 S.Ct.
1028, 108 L.Ed.2d 178 (1990) (standard of review adopted
in Turner applies in all circumstances in which needs of
prison administration implicate constitutional rights,
including when the constitutional right claimed to have
been infringed is fundamental or a suspect class is in-
volved).
A. Plaintiff fails to provide evidence showing
defendants Nienhuis and Woodford acted
with discriminatory intent or without le-
gitimate penological goal
Plaintiff alleges that defendants Nienhuis and Wood-
ford violated plaintiff’s right to equal protection in their
investigation of the Inmates’ Proposal. Amendment to
Compl. at 4. Plaintiff claims the three Asian inmates who
signed the Inmate’ Proposal were targeted for investiga-
tion and punishment. Jd. at 3. Plaintiff was issued an RVR
for possession of sexually explicit material, and later
Woodford informed the BPT of the RVR, leading to denial
of plaintiff’s parole date. Id.
App. 17
Plaintiff alleges Nienhuis and Woodford acted with
discriminatory intent in choosing to investigate plaintiff
and the other two Asian inmates who signed the Inmates’
Proposal. Jd. at 4. Plaintiff asserts that a group of other
inmates found in possession of obscene contraband in the
North Block where plaintiff is housed were not charged
with an RVR, as plaintiff was. Jd. at 3. Plaintiff believes
that in the last five years no North Block inmate has been
issued an RVR for possession of obscene material. Id. at 2.
Furthermore, plaintiff states that only the three Asian
inmates who signed the Inmates’ Proposal were placed in
administrative segregation, found guilty of rule violations,
and transferred to different institutions. Id. at 3.
A claim for racial discrimination must plead inten-
tional unlawful discrimination or allege facts that are at
least susceptible of an inference of discriminatory intent.
See Monteiro, 158 F.3d at 1026. Plaintiff’s statements
concerning enforcement of the ban on sexually explicit
materials do not support plaintiff’s allegations that
Nienhuis and Woodford acted with intent to discriminate.
Plaintiff does not allege that Nienhuis and Woodford were
responsible for the prior enforcement decisions in the
North Block. Furthermore, previous enforcement in the
North Block does not address plaintiff’s primary allega-
tion that Nienhuis and Woodford treated plaintiff differ-
ently because he was Asian. Nonenforcement of the ban on
pornography in the past, by unknown individuals, does not
show intent to discriminate against Asian inmates and
therefore has no evidentiary value.
Plaintiff argues Nienhuis and Woodford were target-
ing Asians by pointing out that only the three Asians who
signed the Inmates’ Proposal were found guilty of rule
violations, placed in administrative segregation and
App. 18
transferred. Amendment to Compl. at 3. In total, there
were four inmates who signed the Inmates’ Proposal. Decl.
Nienhuis Ex. A at 3. Plaintiff alleges that three of the
inmates who signed the proposal, including himself, were
of Asian descent, and the fourth, plaintiff apparently
alleges, was not of Asian descent. Amendment to Compl. at
3.
Woodford and Nienhuis authorized cell searches for
all of the inmates involved in the Inmates’ Proposal. Decl.
Nienhuis Ex. A at 4. All four of the inmates had their cells
searched and their written material confiscated. Jd.
Materials confiscated from the three Asian inmates led to
charges being filed for improper relationships with volun-
teers, compromising institutional security, and, in the case
of plaintiff, possession of contraband materials. Jd. Ex. A
at 37-40; Ex. C. Incriminating materials were not found in
the fourth inmate’s cell, and therefore no charges were
filed. Id. Ex. A at 4.
Plaintiff’s argument that Asian inmates were inten-
tionally targeted for investigation and discipline does not
have an evidentiary basis. Plaintiff’s comparison with the
North Block as a whole does not substantiate his claims
that plaintiff was singled out as an Asian. The fact that
only the Asian inmates who signed the Inmates’ Proposal
were issued RVRs is not evidence of differential treatment.
The Asian inmates, including plaintiff, were found in
possession of materials that led to disciplinary charges,
while the non-Asian inmate was not in possession of such
materials. Moreover, plaintiff does not dispute that the
fourth inmate was not in possession of materials which
could lead to disciplinary charges.
App. 19
Defendants’ motion for summary judgment points out
plaintiff’s failure to provide evidence supporting intent to
discriminate against the Asian inmates. Defs.’ Mot. for
Summ. J. at 18-19. Once the moving party has pointed out
the portions of the record which demonstrate the absence
of a genuine issue of material fact, the burden shifts to the
non-moving party to show a material fact at issue. Celotex,
477 U.S. at 324. As discussed above, plaintiff’s Complaint
and Amendment to Complaint do not provide evidence
supporting intent to discriminate.
Furthermore, defendants point out there were legiti-
mate non-discriminatory reasons for issuing RVRs to the
three Asian inmates and not the fourth non-Asian inmate.
The claim must be rejected if the prison regulation or
practice is “reasonably related to legitimate penological
interests.” Turner, 482 U.S. at 89; see also Washington, 494
U.S. at 223-25. Plaintiff has provided no evidence that
legitimate penological goals were not being pursued when
the four inmates’ cells were searched, and rule violations
were issued to three of the inmates. Defendant has pro-
vided a record of the investigation which cites specific
penological goals for the defendants actions. See Nienhuis
Decl. Ex. A at 2-4.
Plaintiff has not carried his burden of proof, and the
Court therefore GRANTS summary judgment to defen-
dants on the issue of the equal protection violation by
Nienhuis and Woodford.
App. 20
B. Plaintiff fails to provide evidence showing
defendants Woodford, Dacanay, Kane and
Wooten acted with discriminatory intent or
without legitimate penological goals
Plaintiff alleges defendants Woodford, Kane, Wooten
and Dacanay violated plaintiff’s equal protection by
treating plaintiff differently than other inmates. Amend-
ment to Compl. at 3-4. Plaintiff claims that Kane, Wooten
and Dacanay targeted plaintiff for differential treatment,
while they were chairing various ICC hearings on the
plaintiff’s administrative segregation and transfer. Id.
Plaintiff alleges that only the three Asian inmates who
signed the Inmates’ Proposal were found guilty of rule
violations, placed in administrative segregation, and
transferred. Id. at 3.
Plaintiff supports his allegations by stating that no
North Block inmate has been placed on administrative
segregation for possession of obscene materials. Id. at 2.
Other North Block inmates were given notice that sexually
explicit material were contraband. Jd. Furthermore, other
inmates had been caught with sexually explicit materials
and had not been placed in administrative segregation. Id.
at 2-3. Plaintiff also asserts that prisoners similar to him
were denied parole but did not receive administrative
segregation or transfer. Jd.
Plaintiff’s allegations about prior discipline and
administrative segregation in the North Block, even if
true, do not support the essential element of inteucional
discrimination. Plaintiff does not allege that the prior
decisions were made by the defendants. Nor does plaintiff
allege other circumstances where Asian inmates have been
treated differently. Furthermore, defendants contend that
legitimate penological goals were advanced by their
App. 21
actions, and have provided a record of the ICC hearings
showing these goals. Defs.’ Mot. for Summ. J. at 13;
Cattermole Decl. F, G, I, L and N. Plaintiff bears the
burden of showing no legitimate goal was advanced, but
has not met it.
Plaintiff has not established an issue of material fact,
and the Court therefore GRANTS defendants’ motion for
summary judgment on the equal protection claim against
defendants Woodford, Dacanay, Kane and Wooten.
2. Plaintiff failed to establish a retaliation claim
Plaintiff makes two arguments that defendants
retaliated against him. Remeidio Comp]. Claim 2 and 3.
First, plaintiff claims defendants Woodford and Nienhuis
retaliated against his involvement in the Inmates’ Pro-
posal by searching his cell on May 15, 2002. Remeidio
Compl. Claims 2 and 3; see also Order of Dismissal with
Leave to Amend at 2. Second, plaintiff claims defendants
Woodford, Dacanay, Kane, and Wooten placed plaintiff in
administrative segregation as retaliation for plaintiff’s
involvement in the Inmates’ Proposal, for filing a habeas
corpus action in state court, and for challenging San
Quentin’s policy on the College Program. Remeidio Compl.
Claim 2; see also Order of Dismissal with Leave to Amend
at 2.
Retaliation by a state actor for the exercise of a
constitutional right is actionable under 42 U.S.C. § 1983,
even if the act, when taken for different reasons, would
have been proper. See Mt. Healthy City Bd. of Educ. v.
Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 50 L.Ed.2d 471
(1977). Retaliation, though it is not expressly referred to in
the Constitution, is actionable because retaliatory actions
App. 22
may tend to chill individuals’ exercise of constitutional
rights. See Perry v. Sindermann, 408 U.S. 593, 597, 92
S.Ct. 2694, 33 L.Ed.2d 570 (1972). In Pell v. Procunier, 417
U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), the
Supreme Court stated “a prison inmate retains those First
Amendment rights that are not inconsistent with his
status as a prisoner or with the legitimate penological
objectives of the corrections system.” In Rizzo v. Dawson,
778 F.2d 527, 582 (9th-Cir.1985), the Ninth Circuit held,
that for a prisoner to state a cause of action, “[plaintiff]
must do more than allege retaliation because of the
exercise of his First Amendment rights ... ; he must also
allege that the prison authorities’ retaliatory action did not
advance legitimate goals of the correctional institution or
was not tailored narrowly enough to achieve such goals.”
Furthermore, plaintiff bears the burden of showing that
there was no legitimate penological objective to defen-
dants’ actions. Pratt v. Rowland, 65 F.3d 802, 806 (9th
Cir.1995) (“The plaintiff bears the burden of pleading and
proving the absence of legitimate correctional goals for the
conduct he complains of.”).
Retaliation claims brought by prisoners must be
evaluated in light of concerns over “excessive judicial
involvement in day-to-day prison management, which
‘often squander[s] judicial resources with little offsetting
benefit to anyone.’” Pratt, 65 F.3d at 807 (quoting Sandin
v. Conner, 515 U.S. 472, 482, 115 S.Ct. 2293, 132 L.Ed.2d
418 (1995)). In particular, courts should “ ‘afford appropri-
ate deference and flexibility to prison officials in the
evaluation of proffered legitimate penological reasons for
cunduct alleged to be retaliatory.” Jd. (quoting Sandin, 515
US. at 482).
App. 23 -
A. Plaintiff failed to provide evidence show-
ing Woodford and Nienhuis acted without a
legitimate penological goal
Plaintiff claims that on May 15, 2002, his cell was
subject to a search in retaliation for his participation-in
the Inmates’ Proposal, an exercise of his First Amendment
rights. Remeidio Compl. Claim 3; see also Order to Dismiss
with Leave to Amend at 2. He alleges that the search took
place on Warden Woodford’s orders, after Nienhuis
brought the Inmates’ Proposal to Woodford’s attention. Id.
Both Woodford and Nienhuis are named as the defendants
responsible for this retaliation. Jd.
Defendants argue that plaintiff has failed to provide
evidence showing that a legitimate penological goal was
not advanced by the search of plaintiff’s cell. Defs.’ Mot.
for Summ. J. at 18-19. By pointing out a specific failure to
create material issue of fact, defendants have shifted the
burden to plaintiff to provide evidence creating a material
issue of fact. Celotex, 477 U.S. at 324.
Plaintiff simply alleges that the search of his cell by
Woodford and Nienhuis part of “a deliberate policy to
exclude the expression of viewpoints and opinions that are
unflattering or unwelcome.” See Remeidio Compl. Claim 3.
Plaintiff has not alleged or provided any facts suggesting
that the search of his cell did not advance legitimate
penological goals, as was his burden. Plaintiff’s pleadings
are considered a valid affidavit to oppose summary judg-
ment, but the complaint does not establish facts within
plaintiff’s knowledge which create a material issue of
triable fact.
Furthermore, defendants have provided significant
evidence, in the form of Nienhuis’s investigation report,
App. 24
showing there were legitimate penological goals advanced
by the search of plaintiff’s cell. See Nienhuis Decl. Ex. A.
Records show that an ongoing investigation was taking
place when plaintiff’s cell was searched. Jd. at 4. The
investigation was initiated partly because of the demands
made in the Inmate Proposal, but also because of the prior
records of the inmates involved and concerns of the Col-
lege Program staff. Jd. at 3-4. This investigation was
pursued for the safety of the College Program volunteers,
safety of the prison staff and security of the prison. Nien-
huis Decl. J 3(B). The search of plaintiff’s cell was not
retaliation, ut part of an ongoing investigation under-
taken for legitimate penological goals. Plaintiff has pro-
vided no evidence to refute the defendants’ records. For
the forgoing reasons, summary judgment is GRANTED on
plaintiff’s claims against defendants Woodford and
Nienkuis for retaliatory search of his cell.
B. Woodford, Kane, Dacanay, and Wooten did
not retaliate against the plaintiff because
placement in administrative segregation
advanced a legitimate penological goal
Plaintiff claims that he was retaliated against for his
participation in the Inmates’ Proposal, for filing a writ of
habeas corpus in Marin County Superior Court, and for
challenging prison policy. Remeidio Compl. Claim 2; see
also Order of Dismissal with Leave to Amend at 2. Plain-
tiff alleges that in retaliation he was placed in administra-
tive segregation and later transferred to another prison.
Id. Plaintiff names defendants Woodford, Dacanay, Kane,
and Wooten as the individuals responsible for the retalia-
tion. Id.
App. 25
Plaintiff does not detail what role Woodford played in
the alleged retaliation, beyond ordering the search of
plaintiff’s cell discussed earlier. Dacanay, Kane and
Wooten chaired various ICC hearings concerning plain-
tiff’s placement in administrative segregation and his
eventual transfer to another institution. See Cattermole
Decl. F,G,I,LandN. -
Defendants argue that plaintiff has failed to provide
evidence that the actions by Woodford, Dacanay, Kane,
and Wooten did not advance legitimate penological goals.
Mot. for Summ. J. at 20. The only evidence provided was
plaintiff’s own assertion in the complaint recounting that
Ms. Sorddragger told him that plaintiff was transferred
because he signed the proposal. Remeidio Compl. Claim 2.
Plaintiff’s recounting of Ms. Sorddragger’s statement may
tend to support defendants’ intent to retaliate, but does
not establish that there was no legitimate penological goal
advanced by the defendants’ actions. By pointing out a
specific failure to create material issue of fact, defendants
have shifted the burden to plaintiff to provide evidence
creating a material issue of fact. Celotex, 477 U.S. at 324.
Plaintiff has failed to bear his burden of showing a mate-
rial issue of fact that there was no legitimate penological
goal advanced by the defendants actions. .
Moreover, defendants have provided a record showing
the ICC finding in question were made pursuant to legiti-
mate penological goals, such as safety of staff and inmates,
and the security of the institution. See Cattermole Decl. F,
G, I, L and N. Plaintiff has failed to show that there is a
triable issue of material fact on whether defendants’
actions advanced legitimate penological goals. Therefore,
for the above reasons the, Court GRANTS summary
App. 26
judgment to the defendants on the “urges of retaliation
against Woodford, Dacanay, Kane, and Wooten.
3. Plaintiff’s due process rights were not violated
Plaintiff claims his due process rights were violated at
the June 28, 2002 ICC hearing, because he was denied
“the right to present documentary evidence in mitigation
of the charges” and the hearing officer “refused to accept
documents in my defense”; and because Nienhuis withheld
key evidence when the hearing officer was not given the
“letter and envelope containing the obscene materials.”
Remeidio Compl. Claim 1. Plaintiff does not state what
“documentary evidence in mitigation of the charges” he
wished to present, nor what “documents in my defense”
might have been presented, except for the “letter and
envelope containing the obscene materials.” Plaintiff does
not dispute that he possessed the ne materials
as charged in the RVR.
The Due Process.Clause of the Fourteenth Amend-
ment of the U.S. Constitution protects individuals against
governmental deprivations of life, liberty or property
without due process of law. Interests that are procedurally
protected by the Due Process Clause may arise from two
sources — the Due Process Clause itself and laws of the
states. See Meachum v. Fano, 427 U.S. 215, 223-27, 96
S.Ct. 2532, 49 L.Ed.2d 451 (1976).
Prison disciplinary hearings may amount to a depri-
vation of a constitutionally protected liberty interest if two
requirements are satisfied. Sandin v. Conner, 515 US.
472, 477-87, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). First,
the liberty interest in question must be one of “real sub-
stance.” Jd. A liberty interest of “real substance” generally
App. 27
means (i) a restraint that imposes “atypical and significant
hardship on the inmate in relation to the ordinary inci-
dents of prison life,” or (ii) state action that “will inevitably
affect the duration of [a] sentence.” Jd. at 484, 487. Second,
the state statutes or regulations must narrowly restrict
the power of prison officials to deprive the inmate of the
liberty interest. Id. at 477-487; see Bonin v. Calderon, 77
F.3d 1155, 1161-62 (9th Cir.1996) (looking first to statutory
language and finding no state-created constitutionally
protected interest in choosing method of execution where
state statute does not guarantee prisoner a choice).
In the absence of a liberty interest, an inmate’s due
process rights are violated in a disciplinary proceeding
only if there is no evidence whatsoever supporting the
disciplinary sanction. See Burnsworth v. Gunderson, 179
F.3d 771, 773-74 (9th Cir.1999).
A. Plaintiff fails to allege Woodford participated
in the violation of plaintiff’s due process
rights
Plaintiff’s due process claim alleges that Woodford
denied plaintiff’s request to have the RVR for possession
of pornographic materials dismissed. Remeidio Compl.
Claim 3. Plaintiff does not describe what due process was
absent when this denial was issued, nor does plaintiff
claim that Woodford was involved in the alleged due
process violations that took place at the ICC on June 28,
2002. In Claim 1 of plaintiff’s complaint, plaintiff alleges
that Woodford participated in retaliation against plaintiff,
but this is a separate cause of action already discussed.
Remeidio Comp.. Claim 1. The Court GRANTS summary
judgment in favor of the defendants on the due process
claim against Woodford.
-
App. 28
B. Plaintiff’s placement in administrative segre-
gation subsequent to the June 28, 2002 ICC
- hearing was not an “atypical and significant
hardship”
To invoke the Due Process clause, plaintiff must meet
the first prong of the Sandin test by showing that a liberty
interest of real substance was at stake at the hearing.
Sandin, 515 U.S. 483-86. In Sandin, the Supreme Court
held that placement in administrative segregation after a
disciplinary hearing did not amount to atypical and
significant hardship. 515 U.S. at 486. In that case plaintiff
alleged that he was not provided the opportunity to
present a witness at his disciplinary hearing, and plaintiff
was subsequently placed in administrative segregation. Id.
at 475. The Court held that the situation was not atypical
and significant hardship, and therefore no liberty interest
of real substance was at stake. Jd. at 486. Because no
liberty interest of substance was at stake, only minimal
due process was necessary. Id.
Here, plaintiff argues that his situation differs from
mere administrative segregation as described in Sandin,
because the outcome of his June 28, 2002 disciplinary
hearing led to revocation of his parole date and his trans- °
fer to a Level III facility. Remeidio Compl. Claim 1. A state
action that “will inevitably affect the duration of [a]
sentence” creates a liberty interest for the inmate. Sandin,
515 U.S. at 487.
Sandin addressed whether a disciplinary hearing
having an effect on other administrative hearings gives
rise to a liberty interest of real substance. Id. “The deci-
sion to release a prisoner rests on a myriad of considera-
tions. And, the prisoner is afforded procedural protection
at his parole hearing in order to explain the circumstances
App. 29
behind his misconduct record. The chance that a finding of
misconduct will alter the balance is simply too attenuated
to invoke the procedural guarantees of the Due Process
Clause.” Jd. (citations omitted).
The Sandin analysis applies to plaintiff’s parole
denial and transfer to another prison facility. Plaintiff’s
parole and reassignment to a different facility were too
attenuated to create a substantial liberty interest at the
June 28th disciplinary hearing. Furthermore, plaintiff
does not allege that his due process rights were denied at
either his parole hearing or at the prison reassignment
hearing.
Finally, in light of the interests at stake, the discipli-
nary hearing did not violate minimum due process stan-
dards. Plaintiff does not deny that he received notice of the
hearing on the RVR, that he received all pertinent docu-
mentation 24 hours prior to the hearing, that he stated he
was ready to proceed with the hearing when it was called,
or that he was present during the hearing. Further, he
does not deny the statement attributed to him at the
hearing: “I had all the stuff they say I had but I do not feel
it is contraband. I have had it a long time and no one said
it was contraband in the past. I feel there is nothing wrong
with it, therefore [’'m not guilty.” Nienhuis Decl. Ex. C.
Although he now asserts that he was denied “the right to
present documentary evidence in mitigation of the
charges” and that the hearing officer “refused to accept
documents in my defense,” he appears to refer to the
“letter and envelope containing the obscene materials,”
which would not have affected the outcome of the hearing.
App. 30
Summary judgment is GRANTED in the defendants’
favor on the issue due process violations by Nienhuis and
Williams.
4. Qualified immunity
Defendants urge, in the alternative, that they are
entitled to qualified immunity for their conduct. The
defense of qualified immunity protects “government
officials . . . from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Harlow v. Fitegerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982). The rule of qualified
immunity “‘provides ample protection to all but the
plainly incompetent or those who knowingly violate the
law’”; defendants can have a reasonable, but mistaken,
belief about the facts or about what the law requires in
any given situation. Saucier v. Katz, 533 U.S. 194, 202,
121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Malley v.
Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271
(1986)). “Therefore, regardless of whether the constitu-
tional violation occurred, the [official] should prevail if the
right asserted by the plaintiff was not ‘clearly established’
or the [official] could have reasonably believed that his
particular conduct was lawful.” Romero v. Kitsap County,
931 F.2d 624, 627 (9th Cir.1991).
A court considering a claim of qualified immunity
must first determine whether the plaintiff has alleged the
deprivation of an actual constitutional right, then proceed
to determine if the right was “clearly established.” See
Wiison v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 1694, 143
L.Ed.2d 818 (1999); Conn v. Gabbert, 526 U.S. 286, 290,
App. 31
119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). The threshold
question must be: Taken in the light most favorable to the
party asserting the injury, do the facts alleged show the
officer’s conduct violated a constitutional right? Saucier,
533 U.S. at 201; see Martin, 360 F.3d at 1082-1084. If no
constitutional right would have been violated were the
allegations established, there is no necessity for further
inquiries concerning qualified immunity. Saucier, 533 U.S.
at 201.
On the other hand, if a violation could be made out on
the allegations, the next sequential step is to ask whether
the right was clearly established. Jd. This inquiry must be
undertaken in light of the specific context of the case, not
as a broad general proposition. Jd. at 202. The relevant,
dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a rea-
sonable officer that his conduct was unlawful ‘in the
situation he confronted. Jd. If the law did not put the
officer on notice that his conduct would be clearly unlaw-
ful, summary judgment based on qualified immunity is
appropriate. Jd. The plaintiff bears the burden of proving
the existence of a “clearly established right.”
In this case, summary judgment wil be granted to
defendants because plaintiff has not established triable
issues of material fact to warrant trial on his affirmative
case. Alternatively, if a qualified immunity analysis were
required, this Court would find that qualified immunity
protects defendants since under the circumstances of this
case it would not have been clear to reasonable officers
that their conduct in performing plaintiff’s cell search, in
placing plaintiff in administrative segregation or in
conducting the ICC hearing was unlawful. Accordingly,
App. 32
summary judgment in favor of defendants is GRANTED
on the claim for qualified immunity.
CONCLUSION
For the foregoing reasons, defendants’ motions for
summary judgment are GRANTED. [Docket # 13]
IT IS SO ORDERED.
Dated: June 30, 2004
s/
SUSAN ILLSTON
United States District Judge
App. 33
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROMIRICO REMEIDIO, No. 04-16427
Plaintiff-Appellant, D.C. No.
x CV-03-02212-SI
Northern District of
J. WOODFORD; A. KANE; California, San Francisco
I. NEINHUIS; D. WOOTEN;
H. WILLIAMS; D. DACANAY, | ORDER
Defendants-Appellees. (Filed May 1, 2006)
Before: SILVERMAN, GRABER, and CLIFTON, Circuit
Judges. ,
Defendants-Appellees’ petition for rehearing is DE-
NIED.
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