-LRL Orlomoski v. Neven et al, No. 2:2010cv01250 - Document 13 (D. Nev. 2011)
Court Description: ORDER Granting 10 Motion for Summary Judgment. Signed by Judge Gloria M. Navarro on 8/16/11. (Copies have been distributed pursuant to the NEF - ASB)
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-LRL Orlomoski v. Neven et al Doc. 13 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 6 DANIEL ORLOMOSKI, Plaintiff, vs. 7 DWIGHT W. NEVEN, et al., 8 9 Defendant. ) ) ) ) ) ) ) ) ) Case No.: 2:10-cv-01250-GMN-LRL ORDER 10 11 INTRODUCTION 12 Before the Court is Defendants Richard Liverani and Dwight Neven s Motion for 13 14 15 Summary Judgment (ECF No. 10). Plaintiff Daniel Orlomoski did not file a response. FACTS AND BACKGROUND Plaintiff filed the instant prisoner civil rights case arising out of an incident that 16 occurred at High Desert State Prison (“HDSP”) on November 18, 2009. After a fight occurred 17 in culinary, Plaintiff was placed in confinement, allegedly before he had been found guilty of 18 any charges. Plaintiff alleges that Liverani and Neven denied him due process at his 19 disciplinary hearing because they did not allow him to confront his accuser, call witnesses or 20 access counsel (law library assistant per Administrative Regulation 707). Plaintiff s original 21 complaint alleged violations of his Fifth and Sixth Amendment rights. These claims were 22 dismissed. (ECF No. 5.) Plaintiff s amended complaint alleges violations of his Fourteenth 23 Amendment due process and equal protection rights. After Plaintiff filed his Amended 24 Complaint this Court dismissed Plaintiff s Fourteenth Amendment equal protection claims. 25 (ECF No. 8.) Shortly thereafter Defendants filed the instant Motion for Summary Judgment. Page 1 of 10 Dockets.Justia.com DISCUSSION 1 2 A. Failure to Respond Plaintiff failed to file a response to Defendants Motion for Summary Judgment. On 3 4 February 28, 2010, a notice that the Minute Orders regarding the requirements of Klingele v. 5 Eikenberry and Rand v. Rowland was undeliverable and did not get sent to Plaintiff was filed. 6 (ECF No. 12.) Therefore there is a question regarding whether Plaintiff actually received the 7 Motion for Summary Judgment. Plaintiffs, however, are responsible for keeping their contact information up-to-date in 8 9 pending cases. In re Hammer, 940 F.2d 524, 526 (9th Cir.1991) (upholding denial of motion to 10 set aside default judgment where plaintiff failed to update address and knew or should have 11 known of proceedings). Additionally, Local Special Rule 2–2 requires that plaintiffs 12 immediately file with the court written notification of any change of address. Failure to do so 13 may result in dismissal of the action with prejudice. Local Rule 7-2(d) provides that the “failure of an opposing party to file points and 14 15 authorities in response to any motion shall constitute a consent to the granting of the motion.” 16 However, “[a] motion for summary judgment cannot be granted simply because there is no 17 opposition, even if the failure to oppose violated a local rule.” Martinez v. Stanford, 323 F.3d 18 1178, 1182 (9th Cir. 2003). Accordingly, the Court will consider the merits of the motion for 19 summary judgment. 20 B. Legal Standard The Federal Rules of Civil Procedure provide for summary adjudication when the 21 22 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 23 affidavits, if any, show that “there is no genuine issue as to any material fact and that the 24 /// 25 /// Page 2 of 10 1 movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).1 A principal 2 purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” 3 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). In determining summary judgment, a court applies a burden-shifting analysis. “When 4 5 the party moving for summary judgment would bear the burden of proof at trial, it must come 6 forward with evidence which would entitle it to a directed verdict if the evidence went 7 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 8 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 9 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In 10 contrast, when the nonmoving party bears the burden of proving the claim or defense, the 11 moving party can meet its burden in two ways: (1) by presenting evidence to negate an 12 essential element of the nonmoving party=s case; or (2) by demonstrating that the nonmoving 13 party failed to make a showing sufficient to establish an element essential to that party s case 14 on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323– 15 24. If the moving party fails to meet its initial burden, summary judgment must be denied and 16 the court need not consider the nonmoving party s evidence. See Adickes v. S.H. Kress & Co., 17 398 U.S. 144, 159–60 (1970). If the moving party satisfies its initial burden, the burden then shifts to the opposing 18 19 party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. 20 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, 21 22 1 23 24 25 Federal Rule of Civil Procedure 56 was recently amended, effective December 1, 2010. See Fed. R. Civ. P. 56 Advisory Committee Notes, 2010 Amendments. The standard for granting summary judgment remains the same. Id. Amendments to the Federal Rules of Civil Procedure govern proceedings that are pending at the time the amendments become effective, as long as the Supreme Court does not specify otherwise and the application would not be infeasible or work an injustice. Fed. R. Civ. P. 86(a)(2). Here, to prevent against any injustice to the parties, the Court will apply the language of Rule 56 that was in use prior to the new December 1, 2010 amendments. This earlier language was the language that was applicable when the Motion for Summary Judgment was filed and when the Response and Reply was submitted and, therefore, would be the most apt language to apply. Page 3 of 10 1 the opposing party need not establish a material issue of fact conclusively in its favor. It is 2 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 3 parties differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 4 Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid 5 summary judgment by relying solely on conclusory allegations that are unsupported by factual 6 data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go 7 beyond the assertions and allegations of the pleadings and set forth specific facts by producing 8 competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324. 9 At summary judgment, a court s function is not to weigh the evidence and determine 10 the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 11 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be 12 drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable 13 or is not significantly probative, summary judgment may be granted. See id. at 249–50. 14 C. 15 Fourteenth Amendment Right to Due Process The Due Process Clause of the Fourteenth Amendment provides that the State shall not 16 “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. 17 amend. XIV, § 1. “[T]he fact that prisoners retain rights under the Due Process Clause in no 18 way implies that these rights are not subject to restrictions imposed by the nature of the regime 19 to which they have been lawfully committed . . . .” Wolff v. McDonnell, 418 U.S. 539, 556 20 (1974). When a prisoner faces disciplinary charges, prison officials must provide the prisoner 21 with (1) a written statement at least twenty-four hours before the disciplinary hearing that 22 includes the charges, a description of the evidence against the prisoner, and an explanation for 23 the disciplinary action taken; (2) an opportunity to present documentary evidence and call 24 witnesses, unless calling witnesses would interfere with institutional security or correctional 25 goals; and (3) legal assistance where the charges are complex or the inmate is illiterate. See id. Page 4 of 10 1 at 563-70; see also Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 2 (1985); Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003); Neal v. Shimoda, 131 3 F.3d 818, 830-31 (9th Cir. 1997); Walker v. Sumner, 14 F.3d 1415, 1419-20 (9th Cir. 1994), 4 abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995); McFarland v. 5 Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986), abrogated in part on other grounds by Sandin, 6 515 U.S. 472. Plaintiff does not allege any facts that he was not given proper notice of the 7 disciplinary hearing, however he does contend that the only evidence that was provided was 8 untrustworthy. Plaintiff alleges that he was not allowed to confront his accuser and call 9 witnesses and was not given legal assistance. 10 1. Evidence 11 Plaintiff alleges that the only evidence that was provided at the disciplinary hearing was 12 untrustworthy. While due process requires some evidentiary basis for a disciplinary decision, 13 it does not impose significant new burdens on proceedings within the prison. Superintendent, 14 Mass. Corr. Inst., Walpole, 472 U.S. at 455. It does not require an examination of the entire 15 record, independent assessment of the credibility of witnesses, or weighing of the evidence, as 16 Plaintiff would have the court do. Id. As long as there is any evidence in the record that could 17 support the conclusion reached by the disciplinary board, then due process is satisfied. Id. 18 Defendants provide evidence in the form of reports from correctional officers. (See 19 Investigative Report, Ex. B, ECF No. 10-1.) These reports all indicate that Plaintiff had blood 20 on his jump suit and that his jump suit was also soaked in bleach as if to clean off the blood 21 stains. Correctional Officer Vasquez found abrasions on his hand consistent with a fight. This 22 evidence is sufficient to support the disciplinary board s finding that Plaintiff was involved in 23 a fight and should be disciplined accordingly. 24 2. Right to Confront Accuser and Call Witnesses 25 Plaintiff next alleges that his due process rights were violated because he was not Page 5 of 10 1 allowed to confront his accuser at the disciplinary hearing. The United States Supreme Court 2 has plainly held that inmates do not have an absolute right to confront their accusers during 3 disciplinary hearings. Wolff, 418 U.S. at 567. (“If confrontation and cross-examination of those 4 furnishing evidence against the inmate were to be allowed as a matter of course, as in criminal 5 trials, there would be considerable potential for havoc inside the prison walls.”). This is 6 consistent with the discretion given to prison administrators to institute policies and 7 procedures aimed toward maintaining the safety and security of the institution. Therefore this 8 point of error fails as a matter of law. 9 Plaintiff also argues that he was not allowed to call witnesses at his hearing. Plaintiff 10 identified correctional officers Richard Martin and Donald Davis as witnesses on his behalf. 11 Defendant Liverani rejected the witnesses as “redundant.” (See Disciplinary Form III, Ex. D, 12 ECF No. 10-1.). Pursuant to Administrative Regulation (AR) 707(2)(B)(3)(e)(7), inmates 13 have only a “qualified” opportunity to call witnesses on their behalf, and it is within the 14 hearing officer s discretion to “deny any witness if the Officer feels that the testimony would 15 be irrelevant, redundant, hazardous to the security of the institution/facility, or would in any 16 way endanger the safety of any individual, including the witness.” (AR 707, Ex. F, ECF No. 17 10-2.) The United States Supreme Court has guided that it is appropriate to afford prison 18 officials the discretion to refuse to call witnesses if allowing the witnesses would compromise 19 institutional safety or correctional goals. Wolff, 418 U.S. at 565. The Supreme Court further 20 directed that prison officials should have the necessary discretion to keep the hearing within 21 reasonable limits and to refuse to call witnesses that would undermine authority, such as 22 irrelevant or lack of necessity of the testimony. Id. Defendants provide evidence that Liverani 23 denied Plaintiff s request for witnesses because they were not present during the fight and did 24 not possess relevant first-hand knowledge of Plaintiff s participation in the fight. (See 25 Liverani Affidavit, Ex. G, ECF No. 10-4.) There is no due process violation resulting from the Page 6 of 10 1 failure to call witnesses who could not provide any new relevant information. See Baxter v. 2 Palmigiano, 425 U.S. 308, 321, 96 S.Ct. 1551 (1976); see also Bostic v. Carlson, 884 F.2d 3 1267, 1271–72 (9th Cir.1989). Therefore Defendants are entitled to summary judgment on 4 this claim. 5 3. Right to Counsel 6 Plaintiff alleges that he was not permitted to consult with a law library assistant prior to 7 the hearing and was not equipped with substituted counsel during the hearing. Under the 8 Supreme Court decision in Wolff, an inmate is only entitled to legal assistance where the 9 charges are complex or the inmate is illiterate. Wolff 418 U.S. at 570. AR 707(2)(B)(3)(e)(3) 10 permits inmates to consult with a law library assistant prior to the disciplinary hearing as long 11 as an inmate has been assigned to act as a law library assistant. (See AR 707 Ex. F, ECF No. 12 10-2.) Plaintiff has not provided any evidence that he requested a pre-hearing consultation. 13 Pursuant to AR 707(2)(B)(3)(e)(3), inmates are not entitled to the assistance of prison staff 14 during a disciplinary hearing unless the inmate suffers from an impaired mental or emotional 15 state such that the inmate is incapable of understanding or supporting their own defense. (See 16 Id.) This is consistent with the Supreme Court s decision in Wolff. Plaintiff has not alleged 17 that he suffers from an impaired mental or emotional state. Accordingly, Plaintiff s point of 18 error that he was not given counsel fails as a matter of law. 19 D. 20 Administrative Segregation Plaintiff claims that his due process rights were violated because he was placed in 21 administrative segregation pending his disciplinary hearing on his assault and battery charges. 22 There is no liberty interest for prison inmates to remain in the general prison population under 23 the Constitution. Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864 (1983) (overruled on other 24 grounds by Sandin v. Conner, 15 U.S. 472 (1995)). Since prison officials have broad 25 administrative and discretionary authority over institutions they manage and inmates retain Page 7 of 10 1 only a narrow range of protected liberty interests, administrative segregation is the sort of 2 confinement that inmates should reasonably anticipate receiving at some point in their 3 incarceration and it does not involve interests independently protected by the Due Process 4 Clause. Id. AR 507(1)(B) authorizes the temporary placement of inmates into administrative 5 6 segregation pending an investigation into violent misconduct. (See AR 507, Ex. I, ECF No. 7 10-4). There is no question that there was a violent altercation in which Plaintiff was alleged 8 to have taken part in. The prison officials should be allowed the freedom to exercise their 9 administrative authority without judicial oversight so that they can maintain the safety of all 10 involved. See generally, Grayson v. Rison, 945 F.2d 1064 (9th Cir. 1991). Because Plaintiff 11 has no right, interest, or entitlement to be housed in the general population he was not deprived 12 of any due process rights. 13 E. Defendant Neven Did Not Participate in Any of the Actions 14 In order to be held liable under Section 1983, a person acting under color of law must 15 have personally participated in the deprivation. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 16 1989). In a Section 1983 action, supervisors cannot be held accountable for the conduct of 17 their subordinates under a respondeat superior theory; supervisors must have participated in or 18 directed the violations, or knew of the violations and failed to act to prevent them. Id. Plaintiff 19 has alleged no facts that show that Defendant Neven was personally involved in any of the 20 events that form the basis of Plaintiff s claims. Defendants argue that he has no role in the 21 investigation, drafting of the notice of charges or the disciplinary hearing. Defendant Neven s 22 only involvement was limited to his response to Plaintiff s internal grievance on the first, 23 informal level. (See Inmate Issue History, Ex. E, ECF No. 10-1.) None of Plaintiff s claims 24 stem from the grievance process. Accordingly, Defendant Neven is entitled to summary 25 judgment. Page 8 of 10 1 2 F. Qualified Immunity In addition to the reasons stated above as to why summary judgment is proper, the 3 Court also finds that Defendants are entitled to qualified immunity. “The doctrine of qualified 4 immunity protects government officials from civil liability when performing discretionary 5 functions as long as „their conduct does not violate clearly established statutory or 6 constitutional rights of which a reasonable person would have known. ” Pearson v. Callahan, 7 129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 8 Analyzing whether a government official is entitled to qualified immunity involves two 9 questions: (1) whether the facts alleged show the official violated a constitutional right; and 10 (2) whether the right was clearly established such that a reasonable government official would 11 know the conduct was unlawful. Saucier v. Katz, 533 U.S. 194, 201 (2001) (overruled on other 12 grounds by Pearson v. Callahan, 555 U.S. 223 (2009)). 13 The term “clearly established” means that “[t]he contours of the right [are] sufficiently 14 clear that a reasonable official would understand that what he is doing violates that right.” 15 Anderson v. Creighton, 483 U.S. 635, 639 (1987)). The key inquiry is whether the 16 unlawfulness of the act would have been apparent to a reasonable person in the light of pre- 17 existing law at the time the act was committed. See Hope v. Pelzer, 536 U.S. 730, 739 (2002). 18 1. Disciplinary Hearing Claims 19 As seen from the analysis above there is much case law from the U.S. Supreme Court 20 and Ninth Circuit that show that an inmate does not have an unqualified right to confront his 21 accusers, call witnesses and receive substitute counsel. The law does not support a finding that 22 such rights are clearly established. Therefore the Court finds that Defendants are entitled to 23 qualified immunity on any claims arising from the disciplinary hearing. 24 2. Administrative Segregation Claim 25 The Court has cited to U.S. Supreme Court case law that holds that Plaintiff does not Page 9 of 10 1 have a right to be free from administrative segregation prior to an administrative hearing. 2 Thus, it would not be apparent to a reasonable prison official that it would be unconstitutional 3 to place an inmate in administrative segregation in light of the U.S. Supreme Court guidance. 4 Accordingly, Defendants are entitled to qualified immunity on any claims arising from his 5 administrative segregation. 6 7 8 9 CONCLUSION IT IS HEREBY ORDERED that Defendants Richard Liverani and Dwight Neven s Motion for Summary Judgment (ECF No. 10) is GRANTED. DATED this 16th day of August, 2011. 10 11 12 13 ________________________________ Gloria M. Navarro United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 Page 10 of 10
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