(PC) Rico v. Beard et al, No. 2:2017cv01402 - Document 102 (E.D. Cal. 2019)
Court Description: ORDER signed by District Judge Kimberly J. Mueller on 3/4/19 ADOPTING 86 FINDINGS AND RECOMMENDATIONS to the extent they are consistent with the explanations in this order. Plaintiff's claims for injunctive and declaratory relief are DISMISSE D as moot. Plaintiff's claims against defendants Beard, Kernan, Stainer, Harrington and Allison are DISMISSED based on qualified immunity. The case will proceed on plaintiff's claims for damages against the appeals review defendants (Duc art, Marulli, Abernathy, Cuske and Parry) and the floor officer defendants (Nelson, Garcia, Shaver and Escamilla). The case is REFERRED back to the magistrate judge for further proceedings in light of this order and as provided by the Local Rules. (Kastilahn, A)
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(PC) Rico v. Beard et al Doc. 102 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JORGE ANDRADE RICO, No. 2:17-cv-1402-KJM-DB-P 12 Plaintiff, 13 ORDER 14 v. 15 16 JEFFREY BEARD, et al., 17 Defendants. 18 19 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 20 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 21 Eastern District of California local rules, and the matter is now back before this court as explained 22 below. 23 Plaintiff initiated this action by filing a complaint in the Northern District of 24 California on August 2, 2016, ECF No. 1, in which he alleged use of the Guard One security 25 check system in the Security Housing Unit (“SHU”) at Pelican Bay State Prison (“PBSP”) 26 violated his Eighth Amendment rights. On July 6, 2017, the assigned Northern District judge 27 ordered the case transferred to this district because the Guard One system at issue implemented 28 this court’s order in Coleman v. Brown, No. 2:90-cv-520-KJM-DB (E.D. Cal.). See ECF No. 51. 1 Dockets.Justia.com 1 On February 2, 2018, the undersigned issued an order relating this case and two others to 2 Coleman. See ECF No. 60. 3 As a result, defendants’ motion to dismiss is before the court. Defendants argue 4 they are entitled to qualified immunity, in part because they were following the Coleman court 5 order to implement the Guard One security checks. See Mot., ECF No. 68 at 6. In addition, 6 defendants argue granting injunctive relief would violate principles of judicial comity, and 7 plaintiff has failed to state a cognizable claim for an Eighth Amendment violation. Id. at 6–7. In 8 their supplemental briefing, defendants also argue that, because plaintiff is no longer incarcerated 9 in the SHU at PBSP, his claims for injunctive and declaratory relief are moot. ECF No. 77 at 1. 10 On August 2, 2018, the magistrate judge filed findings and recommendations, 11 recommending the court grant defendants’ motion, dismissing (1) the injunctive and declaratory 12 relief claims as moot, and (2) the claims for damages against the “high-level supervisory 13 defendants” on the basis of qualified immunity. Findings & Recommendations (“Findings”), 14 ECF No. 86 at 7–14. The magistrate judge recommended denying the motion to dismiss with 15 respect to the remaining claims for damages against the “appeals review defendants” and the 16 “floor officer defendants,” finding they are not entitled to qualified immunity. Id. at 18. 17 Plaintiff and defendants filed objections to the Findings, and responses to the other 18 parties’ objections. ECF Nos. 87–89 & 91. In light of the court’s standing order encouraging 19 argument by new attorneys, plaintiff filed a request for oral argument on his objections, to be 20 argued by a new attorney. ECF No. 90; see also Standing Order (“If a written request for oral 21 argument is filed before a hearing, stating an attorney of four or fewer years out of law school 22 will argue the oral argument, then the court will hold the hearing.”). The court heard oral 23 argument on the parties’ objections on October 19, 2018. ECF No. 94. 24 On January 16, 2019, defendants filed a letter regarding a new Supreme Court case 25 on qualified immunity, and plaintiff responded. ECF Nos. 96, 97 (citing City of Escondido, 26 California, et al. v. Emmons, 139 S. Ct. 500, 2019 WL 113027, at *3 (Jan. 7, 2019) (per curiam)). 27 Defendants filed a second letter soon after, regarding a new Ninth Circuit case on qualified 28 2 1 immunity, and plaintiff responded. ECF Nos. 98, 100 (citing Hines v. Youseff, 914 F.3d 1218 (9th 2 Cir. Feb. 1, 2019)). 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 4 this court has conducted a de novo review of this case. Having reviewed the file, considered the 5 parties’ briefing and arguments, and good cause appearing, the court finds the findings and 6 recommendations with respect to qualified immunity to be supported by the record and by the 7 proper analysis, with the clarification below. The court also agrees with the magistrate judge that 8 plaintiff’s claims for injunctive and declaratory relief are moot, without adopting the magistrate 9 judge’s reasoning regarding the distinction between the Administrative Segregation Unit (“ASU”) 10 at PBSP and the SHU at PBSP. Instead, as explained below, the court finds plaintiff has not met 11 his burden of showing a reasonable expectation that he will return to ASU for non-punitive 12 reasons. 13 I. 14 QUALIFIED IMMUNITY A. High-Level Supervisory Defendants 15 At oral argument, plaintiff’s counsel clarified that plaintiff’s claims against the 16 “high-level supervisory defendants” do not arise from their implementation of the Guard One 17 system, but from the Guard One system itself, which plaintiff argues is inherently 18 unconstitutional even if implemented without human error. The court therefore accepts the 19 magistrate judge’s recommendation that the “high-level supervisory defendants,” defendants 20 Beard, Kernan, Stainer, Harrington and Allison, are entitled to qualified immunity because they 21 were carrying out a facially valid court order in instituting the Guard One system. See Findings at 22 16–18; see also Hines, 914 F.3d at 1230–31 (state officials entitled to qualified immunity for 23 exposing inmates to Valley Fever in part because officials reported to federal receiver charged 24 with managing state prison system’s response to Valley Fever); Fayle v. Stapley, 607 F.2d 858, 25 862 (9th Cir. 1979) (recognizing that government officers would be immune from civil rights 26 liability for actions authorized by court order); Kulas v. Valdez, 159 F.3d 453, 456 (9th Cir. 1998) 27 (prison doctor entitled to qualified immunity for forcibly administering drugs to inmate pursuant 28 to facially valid court order). 3 1 B. 2 Other Defendants By contrast, plaintiff’s claims against the “appeals review defendants,” Ducart, 3 Abernathy, Marulli, Cuske and Parry, and the “floor officer defendants,” Nelson, Garcia, Escamilla 4 and Shaver, arise out of those defendants’ allegedly flawed implementation of the court order. 5 See Findings at 18; Pl.’s Opp’n to Defs.’ Mot. to Dismiss at 18 (“[T]he Coleman Order does not 6 shield the Defendants from liability for their actions beyond the scope of the Order . . . . 7 [Plaintiff] alleges that the checks were even louder due to the Defendants’ actions beyond the 8 scope of the Order, such as hitting the buttons with extra force and multiple times.”). Because the 9 appeals review defendants’ and floor officer defendants’ alleged actions go beyond the bounds of 10 the court’s order, the court adopts the magistrate judge’s recommendation that these defendants 11 are not entitled to qualified immunity, as supplemented below. 12 1. 13 The court’s conclusion turns on application of the second prong of the two- Qualified Immunity: Clearly Established Law 14 pronged test used in assessing whether qualified immunity applies. See Pearson v. Callahan, 15 555 U.S. 223, 232 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Under the second 16 prong, “the court [] decide[s] whether the right at issue was ‘clearly established’ at the time of 17 defendant's alleged misconduct”; if it was not, a defendant is entitled to qualified immunity. Id. 18 (citing Saucier, 533 U.S. at 201). 19 The Supreme Court has assumed without deciding that the law as determined by a 20 Circuit court may constitute clearly established law. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 21 1153 (2018) (“[E]ven if a controlling circuit precedent could constitute clearly established law in 22 these circumstances, it does not do so here.”) (quoting City & Cty. of San Francisco v. Sheehan, 23 135 S. Ct. 1165, 1176 (2015)); Elder v. Holloway, 510 U.S. 510, 516 (1994); see also Carrillo v. 24 County of Los Angeles, 798 F.3d 1210, 1221 & n.13 (9th Cir. 2015) (noting that in Hope v. 25 Pelzer, 536 U.S. 730, 741–45 (2002), the Court looked to “binding circuit precedent” to 26 determine clearly established law and has not yet “overruled Hope or called its exclusive reliance 27 on circuit precedent into question”). 28 ///// 4 1 The Ninth Circuit makes clear it “first look[s] to binding precedent to determine 2 whether a law was clearly established.” Ioane v. Hodges, 903 F.3d 929, 937 (9th Cir. 2018) 3 (citing Chappell v. Mandeville, 706 F.3d 1052, 1056 (9th Cir. 2013)); see Carrillo, 798 F.3d at 4 1221 (“clearly established law” includes “controlling authority in [the defendants’] jurisdiction” 5 (alteration in original) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). If no binding 6 precedent “is on point, [the Ninth Circuit] may consider other decisional law.” Chappell, 706 7 F.3d at 1056. Ultimately, “the prior precedent must be ‘controlling’—from the Ninth Circuit or 8 Supreme Court—or otherwise be embraced by a ‘consensus’ of courts outside the relevant 9 jurisdiction.” Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (citing Wilson, 526 U.S. 10 at 617). That said, the Ninth Circuit has approved of the use of unpublished and district court 11 decisions to inform qualified immunity analysis in conjunction with controlling authority. 12 Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002) (“We have held that unpublished decisions 13 of district courts may inform our qualified immunity analysis.”). 14 15 i. Level of Specificity Clearly established law must be defined with a “high ‘degree of specificity,’” 16 District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Mullenix v. Luna, 136 S. Ct. 17 305, 309 (2015) (per curiam)), and this standard is “demanding,” id. at 589. The “legal principle 18 [at issue] must have a sufficiently clear foundation in then-existing precedent.” Id. It “must be 19 settled law, which means it is dictated by controlling authority or a robust consensus of cases of 20 persuasive authority,” rather than merely “suggested by then-existing precedent.” Id. at 589–90 21 (citations and internal quotation marks omitted). 22 While “a case directly on point” is not required “for a right to be clearly 23 established, existing precedent must have placed the statutory or constitutional question beyond 24 debate,” Kisela, 138 S. Ct. at 1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)), and must 25 “‘squarely govern[]’ the specific facts at issue.” Id. at 1153 (citing Mullenix, 136 S. Ct. at 309); 26 see also Pike v. Hester, 891 F.3d 1131, 1141 (9th Cir. 2018) (“An exact factual match is not 27 required . . . .”). “The rule’s contours must be so well defined that it is ‘clear to a reasonable 28 officer that his conduct was unlawful in the situation he confronted.’” Wesby, 138 S. Ct. at 590 5 1 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). Thus, “[t]he dispositive question is ‘whether 2 the violative nature of particular conduct is clearly established.’” Ziglar v. Abbasi, 137 S. Ct. 3 1843, 1866 (2017) (quoting Mullenix, 136 S. Ct. at 308) (emphasis and alteration in original). 4 “This requirement—that an official loses qualified immunity only for violating 5 clearly established law—protects officials accused of violating ‘extremely abstract rights.’” 6 Ziglar, 137 S. Ct. at 1866 (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). In one oft- 7 quoted summation of these principles, the Court has said qualified immunity “protects ‘all but the 8 plainly incompetent or those who knowingly violate the law.” Wesby, 138 S. Ct. at 589 (quoting 9 Malley v. Briggs, 475 U.S. 335, 341 (1986)). 10 ii. 11 Notice/Fair Warning Specificity is required to provide officials with notice of what conduct runs afoul 12 of the law. “Because the focus is on whether the officer had fair notice that her conduct was 13 unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.” 14 Kisela, 138 S. Ct. at 1152 (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)); 15 see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (“‘[T]he salient question . . . is whether 16 the state of the law’ at the time of an incident provided ‘fair warning’ to the defendants ‘that their 17 alleged [conduct] was unconstitutional.’”) (quoting Hope, 536 U.S. at 741) (alterations in 18 original). 19 Although “‘general statements of the law are not inherently incapable of giving 20 fair and clear warning to officers,’ . . . . constitutional guidelines [that] seem inapplicable or too 21 remote” will not suffice. Kisela, 138 S. Ct. at 1153 (quoting White, 137 S. Ct. at 552). Put 22 another way, “[a]n officer ‘cannot be said to have violated a clearly established right unless the 23 right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes 24 would have understood that he was violating it.’” Id. (quoting Plumhoff v. Rickard, 134 S. Ct. 25 2012, 2023 (2014)). Accordingly, “a court must ask whether it would have been clear to a 26 reasonable officer that the alleged conduct ‘was unlawful in the situation he confronted.’” Ziglar, 27 137 S. Ct. at 1867 (quoting Saucier, 533 U.S. at 202). 28 ///// 6 1 2. 2 Applying these principles here, by 2016 it was clearly established that forcing an Discussion 3 inmate to live in an environment with excessive noise is a violation of the Eighth Amendment. 4 See Findings at 15–16. The magistrate judge comes to the same conclusion, but cites Keenan v. 5 Hall, 83 F.3d 1083, 1090 (9th Cir. 1996), opinion amended on denial of reh’g, 135 F.3d 1318 6 (9th Cir. 1998) and Chappell, 706 F.3d at 1070, for the proposition that “the law is clearly 7 established that excessive noise causing sleep deprivation may violate the Eighth Amendment.” 8 Findings at 18. Though these two cases do not directly address sleep deprivation caused by noise. 9 See Keenan, 83 F.3d at 1090–91 (addressing sleep deprivation caused by excess light and 10 separate claim for excessive noise); Chappell, 706 F.3d at 1057–58 (“Chappell’s claim is based 11 on seven days of contraband watch, and he did not claim that he was sleep deprived.”). 12 Nonetheless, the court agrees that it was clearly established that both excess noise and excess 13 sleep deprivation could violate the Eighth Amendment. 14 In Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996), opinion amended on denial 15 of reh’g, 135 F.3d 1318 (9th Cir. 1998), the panel majority opined that “[p]ublic conceptions of 16 decency inherent in the Eighth Amendment require that [inmates] be housed in an environment 17 that, if not quiet, is at least reasonably free of excess noise.” Keenan, 83 F.3d at 1090 (quoting 18 Toussaint v. McCarthy, 597 F. Supp. 1388, 1397, 1410 (N.D. Cal. 1984)). And in Jones v. 19 Neven, an unpublished decision, the Ninth Circuit vacated a finding that qualified immunity 20 applied because “the Eighth Amendment rights [plaintiff] claims defendants violated,” including 21 the right to be free from “excess noise,” were “clearly established.” 399 F. App’x 203, 205 (9th 22 Cir. 2010).1 23 It also was clearly established that causing an inmate excessive sleep deprivation is 24 an Eighth Amendment violation. Keenan v. Hall, 83 F.3d at 1090 (constant illumination 25 1 26 27 28 On appeal after remand in Jones, the Circuit ultimately found defendants were entitled to qualified immunity on plaintiff’s conditions of confinement claims based on (1) deprivation of a mattress and (2) “constant lighting in his cell for a period of ninety-six hours.” Jones v. Neven, 678 F. App’x 490, 493 (9th Cir. 2017), cert. denied, 137 S. Ct. 2279 (2017). The court did not address the question of qualified immunity with respect to plaintiff’s claim of excessive noise. See id. 7 1 interfering with sleep, with no legitimate penological purpose, can be an Eighth Amendment 2 violation); Chappell, 706 F.3d at 1070 (dissent observing, although majority did not reach 3 question, “it was clearly established law that conditions having the mutually reinforcing effect of 4 depriving a prisoner of a single basic need, such as sleep, may violate the Eighth Amendment.”). 5 District court decisions provide further support for this proposition. Harris v. Sexton, No. 1:18- 6 cv-00080-DAD-SAB, 2018 WL 6338730, at *1 (E.D. Cal. Dec. 5, 2018) (“[T]he Ninth Circuit 7 has concluded that conditions of confinement involving excessive noise that result 8 in sleep deprivation for inmates may violate the Eighth Amendment.”) (citing Jones, 399 F. 9 App’x at 205; Keenan, 83 F.3d at 1090); Matthews v. Holland, No. 114CV01959SKOPC, 2017 10 WL 1093847, at *8 (E.D. Cal. Mar. 23, 2017) (“It has been clearly established in the Ninth 11 Circuit, since the 1990s, that inmates are entitled to conditions of confinement which do not result 12 in chronic, long term sleep deprivation.”) (citing Keenan, 83 F.3d at 1090–91) (other citations 13 omitted); Williams v. Anderson, No. 1:10-CV-01250-SAB, 2015 WL 1044629, at *10 (E.D. Cal. 14 Mar. 10, 2015) (officer not entitled to qualified immunity because, “[v]iewed in Plaintiff's favor, 15 the Court finds that it would have been clear to a reasonable officer that subjecting Plaintiff to 16 excessive noise causing sleep deprivation for several months would pose a substantial risk of 17 serious harm.”). 18 Given the clearly established law regarding excessive noise and excessive sleep 19 deprivation, a reasonable officer would have known it was unlawful to create a racket by running 20 “loudly up and down the metal stairs” and hitting “the Guard One buttons with more force than 21 necessary,” “multiple times, making extra unnecessary noise” once an hour during the night, 22 thereby causing inmates severe sleep deprivation. See First Am. Compl., ECF No. 38, ¶¶ 35–38. 23 For the same reasons, a reasonable officer would have known it was unconstitutional to ignore an 24 inmate’s complaint detailing such allegations. Therefore, the appeals review defendants and the 25 floor level defendants are not entitled to qualified immunity. 26 ///// 27 ///// 28 ///// 8 1 II. MOOTNESS 2 Because plaintiff is no longer in the SHU, and therefore no longer subject to the 3 Guard One checks, the magistrate judge found plaintiff’s claims for injunctive and declaratory 4 relief (“the claims”) moot unless they fall under one of two exceptions to the mootness doctrine. 5 Findings at 7–8. The magistrate judge found that neither of the exceptions applied, and the court 6 adopts this finding, as explained here. 7 First, the voluntary cessation exception to mootness does not apply, because 8 defendants did not unilaterally cease their illegal activity in response to the instant litigation when 9 they released plaintiff from the SHU after his SHU term expired. See Findings at 12; see also 10 Pub. Utilities Comm’n of State of Cal. v. F.E.R.C., 100 F.3d 1451, 1460 (9th Cir. 1996) 11 (“[D]efendant’s voluntary cessation must have arisen because of the litigation.”) (emphasis in 12 original) (citing Nome Eskimo Community v. Babbitt, 67 F.3d 813, 816 (9th Cir. 1995)). 13 The second mootness exception applies if “(1) the challenged action is in its 14 duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a 15 reasonable expectation that the same complaining party will be subjected to the same action 16 again.” Findings at 8 (quoting United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1540 (2018)). 17 This is often referred to as the “capable of repetition yet evading review” exception. See, e.g., 18 Pub. Utilities Comm’n of State of Cal., 100 F.3d at 1459. The magistrate judge concludes 19 plaintiff has not met his burden to establish the second prong of this test is satisfied, and the court 20 agrees. See Findings at 8–11. 21 However, the magistrate judge also construes plaintiff’s complaint as “limited to 22 his challenge to the use of Guard One in the SHU at PBSP”; therefore, she says the actions 23 challenged are capable of repetition only if there is a reasonable expectation that plaintiff will be 24 incarcerated in that SHU again. Id. at 9. Plaintiff objects, explaining the Guard One system is 25 being implemented in both the ASU and the SHU at PBSP, and cites declarations from PBSP 26 prisoners who complain of the same sleep deprivation caused by use of Guard One in the ASU. 27 Pl.’s Objs. at 7–9 (citing Pl.’s Mootness Br. Ex. B–Ex. D (ECF Nos. 84-2–84-4)) (other citations 28 omitted). The court need not reach the question of whether the conditions in the ASU and the 9 1 conditions in the SHU are sufficiently factually distinct to render plaintiff’s potential future 2 incarceration in the ASU irrelevant for mootness purposes. See Findings at 9. 3 Assuming without deciding that the ASU conditions as relevant here are 4 equivalent to those in the SHU, the court finds plaintiff has not met his burden of showing a 5 reasonable expectation he will be reincarcerated in either the SHU or the ASU for non-punitive 6 reasons. See Sanchez-Gomez, 138 S. Ct. at 1541. Because the “capable of repetition” prong 7 cannot be satisfied by a reasonable expectation that plaintiff will commit future misconduct, the 8 exception cannot be satisfied here by plaintiff’s mere expectation that he will be reincarcerated in 9 the SHU or in the ASU for punitive reasons. See Findings at 10–11; see also Sanchez-Gomez, 10 138 S. Ct. at 1541 (“cable of repetition yet evading review” exception not satisfied by “possibility 11 that a party will be prosecuted for violating valid criminal laws”) (citation omitted). 12 A. 13 Returning to the SHU Because the SHU is used to punish inmates who have committed misconduct, 14 plaintiff is not able to show that he is likely to return there for a non-punitive reason. In fact, as 15 defendants point out, Rico “does not dispute that he ‘holds the keys’ to remaining free from the 16 Guard One checks in the SHU because SHU placement is tied directly to Rico’s behavior.” 17 Defs.’ Response to Pl.’s Objs. at 9 (citing Cal. Code Regs., tit. 15 § 3341.3 (“An inmate whose 18 conduct endangers the safety of others or the security of the institution shall be housed in a [SHU] 19 to complete an administrative SHU term or for a determinate period of time, if found guilty for 20 serious misconduct pursuant to section 3341.9(e).”)). Moreover, defendants offer evidence to 21 show plaintiff has only ever been placed in the SHU for punitive reasons in the past. Id. (citing 22 ECF No. 83-1 at 2). 23 24 25 Therefore, the magistrate judge is correct that plaintiff cannot meet his burden to show he is likely to return to the SHU for non-punitive reasons. B. Returning to the ASU 26 Plaintiff also does not meet his burden to show there is a reasonable possibility he 27 will return to the ASU for non-punitive reasons. To make this showing, plaintiff relies on: (1) his 28 unsupported representation that he “has already been released from and returned to solitary 10 1 confinement during the course of this lawsuit,” Pl.’s Objs. at 13 (emphasis omitted), and (2) case 2 law in which courts generally have observed that “administrative segregation is the sort of 3 confinement that inmates should reasonably anticipate receiving at some point in their 4 incarceration,” id. at 14 (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)). The court rejects 5 both arguments. 6 As to the first point, plaintiff does not clarify whether he has been placed in any 7 form of solitary confinement for non-punitive reasons. See id. at 13. Defendants argue, with 8 support, that plaintiff has only ever been housed in the ASU for punitive reasons. Defs.’ 9 Response to Pl.’s Objs., ECF No. 91 at 12 (“[Plaintiff] has never been placed in ASU for any of 10 [the governing regulations’ list of] non-punitive reasons.”). In fact, “the only two times he was 11 housed in ASU were pending the adjudication of his Rules Violation Reports . . . .” Id. (citing 12 Reynolds Decl., ECF No 83-1, ¶ 2). Plaintiff does not dispute or rebut defendants’ 13 representations and so has not met his burden of showing he will likely be placed in the ASU in 14 the future for non-punitive reasons. 15 As to plaintiff’s second point, the cases he cites do not establish that all prisoners 16 are repeatedly held in administrative segregation for non-punitive reasons throughout their 17 sentences. The Court in Hewitt at most observes quite generally that administrative segregation is 18 “the sort of confinement that inmates should reasonably anticipate receiving at some point in their 19 incarceration.” Hewitt v. Helms, 459 U.S. 460, 468 (1983), receded from on other grounds, 20 Sandin v. Conner, 515 U.S. 472, 472 (1995). The Ninth Circuit similarly has noted only broadly 21 that placement in the SHU was “within the range of confinement to be normally expected” by 22 prison inmates and therefore plaintiff “had no protected liberty interest in being free from 23 confinement in the SHU pending his disciplinary hearing.” Resnick v. Hayes, 213 F.3d 443, 448 24 (9th Cir. 2000). Because Resnick addresses detention in special housing for punitive reasons 25 only, it does not support an argument that plaintiff is reasonably likely to return to the ASU or 26 SHU for non-punitive reasons. See Sanchez-Gomez, 138 S. Ct. at 1541. Plaintiff has identified 27 no authority supporting his argument that he has a reasonable expectation of returning to ASU in 28 the future. 11 1 For the foregoing reasons, the court finds plaintiff has not met his burden of 2 showing a reasonable expectation of returning to the SHU or the ASU for non-punitive reasons, 3 and therefore his claims for injunctive and declaratory relief are moot. 4 Accordingly, IT IS HEREBY ORDERED: 5 1. 6 7 the extent they are consistent with the explanations above; 2. 8 9 Plaintiff’s claims for injunctive and declaratory relief are DISMISSED as moot; 3. 10 11 The findings and recommendations filed August 2, 2018, are ADOPTED to Plaintiff’s claims against defendants Beard, Kernan, Stainer, Harrington and Allison are DISMISSED based on qualified immunity; 4. The case will proceed on plaintiff’s claims for damages against the appeals 12 review defendants (Ducart, Marulli, Abernathy, Cuske and Parry) and the 13 floor officer defendants (Nelson, Garcia, Shaver and Escamilla); and 14 15 16 5. The case is referred back to the magistrate judge for further proceedings in light of this order and as provided by the Local Rules. DATED: March 4, 2019. 17 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 12
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