Unpublished Disposition, 931 F.2d 61 (9th Cir. 1991)

MEMORANDUM^** 

Eric Schroeder, a Hawaii state prisoner, appeals pro se the district court's grant of summary judgment in favor of defendants in his 42 U.S.C. § 1983 action. Schroeder contends that the district court erred in granting summary judgment without fully considering his claims and in denying several of his motions. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in part, reverse in part, and remand.

We review a grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). Summary judgment is appropriate if the evidence, construed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989). If the nonmoving party bears the burden of proof at trial with respect to a material fact, that party is required to go beyond the pleadings and present specific facts establishing each element of his claim on which he would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990).

* Due Process Claims

Schroeder, an inmate at the Halawa Medium Security Facility ("Halawa"), filed an 85 page complaint in which he alleged numerous civil rights violations arising out of five separate disciplinary hearings within the prison, each of which resulted in his transfer to the Special Holding dormitory ("SHD"). Schroeder contends that he was denied due process of law in these hearings.

Liberty interests protected by the fourteenth amendment may arise from the due process clause itself or from the laws of the States. Hewitt v. Helms, 459 U.S. 460, 466 (1983). The due process clause does not create a liberty interest in remaining in the general prison population. Id. at 468. However, the due process clause does demand certain procedural protections when solitary confinement is imposed, because solitary confinement is a major change in the conditions of confinement. Wolff v. McDonnell, 418 U.S. 539, 571 n. 19 (1974). Here, however, the magistrate found that transfer to SHD did not constitute solitary confinement, and therefore Schroeder was not entitled to due process in his hearings.

Assuming arguendo that due process attached when Schroeder was transferred to SHD, Schroeder received sufficient process.¹  In Wolff, the Supreme Court held that when a prisoner is subjected to a major change in conditions of confinement, he is entitled to (1) written notice of the charges at least 24 hours in advance, (2) a written statement of the findings and the evidence relied on, (3) the opportunity to call witnesses and present documentary evidence in his defense, if permitting him to do so will not be unduly hazardous to institutional safety or correctional goals, and (4) a reasonably impartial disciplinary committee. Id. at 563-572. However, an inmate is not entitled to cross examine witnesses, and is not entitled to either retained or appointed counsel in disciplinary proceedings, unless the inmate is illiterate or the issue is so complex the inmate is unlikely to be able to represent himself adequately. Id. at 567-70.

Here, Schroeder received all the procedural protections to which he was entitled under Wolff. He was given advance written notice of all five charges. See id. at 564. His refusal to sign the notices because he was not allowed to retain a copy does not alter the adequacy of the notice. Further, after each hearing he was presented with a written statement of the findings and evidence relied upon. See id. at 564-65.

Schroeder was not permitted to call witnesses because he refused to provide a summary of their testimony and its relevancy. Halawa regulations provide that testimony of witnesses may be excluded where it is irrelevant. Because the right to call witnesses is not unlimited, there is no due process violation. See Bostic v. Carlson, 884 F.2d 1267, 1273 (9th Cir. 1989) ("the inmate, however, must inform the committee of the nature of the testimony each witness will deliver in order to allow the committee to determine whether institutional concerns would preclude calling the witnesses")

The impartiality of each committee was ensured by providing that no committee could include an individual who was involved in the incident at issue. Although Schroeder contends that one member of one committee was biased, she provided a declaration of her impartiality, and Schroeder has not made any showing of impartiality. Thus, Schroeder received a hearing before an impartial committee in each instance. See Wolff, 418 U.S. at 571. Finally, Schroeder was not entitled to counsel because he was literate and clearly adept at legal argument, and none of the hearings involved complex issues. See id. at 570. Thus, the district court correctly determined that Schroeder was not denied due process when he was transferred to SHD.

II

Confiscation of Property and Strip Search

Schroeder also contends that his civil rights were violated when his property, a prison floor plan, was confiscated, and when he was subjected to an improper strip search procedure. First, the prison officials correctly determined that the possession of prison floor plans posed a threat to the safety of the prison. See Hudson v. Palmer, 468 U.S. 517, 535 (1984). Thus, Schroeder had no right to possess the prison floor plan, and his rights were not violated when prison officials confiscated the floor plans. Further, Schroeder has failed to show that confiscation of the prison floor plan affected his legal action, and therefore the confiscation did not deny him access to the courts. See Eldridge v. Block, 832 F.2d 1132, 11 (9th Cir. 1987).

Second, the strip search procedure was constitutional. This court has upheld routine visual strip searches of prisoners when they leave and return to their cell blocks. See Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988); Rickman v. Avanti, 854 F.2d 327 (9th Cir. 1988). Even if the guard deviated from established procedure, one instance does not rise to the level of a constitutional violation absent brutality or outrageous conduct. Cf. McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986) (use of excessive force to inflict bodily injury during strip search violates prisoner's eighth amendment right).

III

Law Library Access

Schroeder contends that he was denied access to the law library when he was in SHD. The fundamental constitutional right of access to the courts requires prison officials to allow inmates access to law libraries. Bounds v. Smith, 430 U.S. 817, 828 (1977). Prisoners of every security classification, including those in administrative segregation, must be provided with constitutionally adequate access to law libraries. See Toussaint v. McCarthy, 801 F.2d 1080, 1109 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987) (affirming district court injunction ordering that segregated prisoners be allowed access to law library absent documented security reasons).

Here, defendants submitted a declaration with their motion for summary judgment stating that inmates in SHD are given physical access to the law library. In his sworn declaration submitted with his opposition to summary judgment, however, Schroeder stated that he was denied access to the law library on four specific dates in 1988 when he was in SHD. He further declared that access to the library for SHD inmates had "not started up at that time," and that he was told by the guard that library privileges were "not conducive to punishment."

Taken in the light most favorable to Schroeder, these allegations raise a triable issue of fact with regard to library access for SHD inmates. Defendants' declaration states only that inmates "have access to the law library." Even if prison officials now provide access to the law library for SHD inmates, voluntary cessation of allegedly illegal conduct does not make the case moot. Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 854 (9th Cir. 1985).²  Further, even though Schroeder has not shown that he was prejudiced when he was denied access to the law library, he can bring a section 1983 claim for nominal damages. See Carey v. Piphus, 435 U.S. 247, 266 n. 24 (1977) (holding that award of nominal damages under section 1983 without proof of actual injury is proper).

Thus, because defendants do not deny Schroeder's claim that access was denied to SHD inmates in 1988, Schroeder raises a triable issue sufficient to withstand summary judgment. See Celotex, 477 U.S. at 323.

IV

Immunity

The district court also granted summary judgment on the ground of immunity and qualified immunity. Here, Schroeder sued all defendants in both their official and individual capacities. The eleventh amendment bars a suit against state officials in their official capacity if the State is the real party in interest. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101 (1984). Thus, Schroeder's action against defendants in their official capacities is barred by eleventh amendment immunity.

State officials sued in their individual capacity are protected by qualified immunity insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, F457 U.S. 800, 818 (1982). As discussed above, we agree with the district court that defendants did not violate Schroeder's clearly established constitutional rights with regard to the due process, confiscation, and strip search claims. Thus, the district court correctly determined that defendants are protected by qualified immunity with regard to those claims.

With regard to the law library access claim, however, a reasonable prison official should have known that all prisoners have a clearly established constitutional right to access to a law library. See Bounds, 430 U.S. at 828; Toussaint, 801 F.2d at 1109. Thus defendants are not protected by qualified immunity insofar as they violated Schroeder's right to access to the law library. See Harlow, 457 U.S. at 818.

V

Default Entries

Schroeder contends that the magistrate erred when he vacated the entries of default of six of the defendants. Entry of default can be set aside for good cause. Fed. R. Civ. P. 55(c). A decision to vacate an entry of default will be reversed only where it is clearly wrong. Mendoza v. Wight Vineyard Management, 783 F.2d 941, 945 (9th Cir. 1986). "Where timely relief is sought from a default ... and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the [default] so that cases may be decided on their merits." Id. at 945-46 (quotation omitted). Here, where the defendants had a meritorious defense and sought timely relief, the magistrate did not abuse his discretion in vacating the entries of default.

VI

Procedural Rulings

Schroeder filed numerous motions in the district court, including motions to compel discovery, to enlarge time, to defer disposition, for preliminary injunctive relief, and for oral argument on summary judgment. Schroeder contends that the district court erred in denying these motions.

We review discovery rulings for abuse of discretion. Klingele v. Eikenberry, 849 F.2d 409, 410 (9th Cir. 1988). Denial of a motion to compel discovery is proper if the evidence sought was almost certainly nonexistant or the object of pure speculation. Visa Int'l Serv. Ass'n v. Bankcard Holders of America, 784 F.2d 1472, 1475 (9th Cir. 1986). Here, Schroeder repeatedly attempted to serve extensive and burdensome interrogatories on defendants. The district court issued a protective order in favor of defendants, staying all discovery until the court ruled on the issue of immunity. "Where defendants are entitled to qualified immunity because a court determines that no reasonable person in their position would have known that the challenged conduct was unlawful, such defendants are entitled to dismissal prior to discovery." F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1318 (9th Cir. 1989) (quotation omitted). Thus, the district court did not abuse its discretion in staying discovery prior to its ruling on the defense of immunity.

We also review denial of a motion to defer disposition or enlarge time for abuse of discretion. See Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 903 (9th Cir. 1989). Here, Schroeder was fully notified of his duty to respond to a motion for summary judgment. See Klingele, 849 F.2d at 411. Further, he was granted one extension of time to respond to defendants' motion for summary judgment. He then filed his response late, and the magistrate nevertheless considered it in his ruling. Throughout this litigation, Schroeder filed numerous motions for extensions of time. The district court concluded that these motions were filed primarily for purposes of delay and harassment. We find no abuse of discretion in the district court's refusal to grant additional time to Schroeder.

Schroeder also argues that the district court should have granted his request for oral argument on the summary judgment motion. Denial of a request for oral argument on a motion for summary judgment motion is not reversible absent a showing of prejudice. Houston v. Bryan, 725 F.2d 516, 518 (9th Cir. 1984). Here, Schroeder has made no showing of prejudice. Accordingly, the district court did not abuse its discretion in denying the request for oral argument.

Finally, because we affirm the grant of summary judgment against Schroeder on all his claims except access to the law library, we affirm the district court's denial of Schroeder's request for preliminary injunctive relief.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.