United States District Court, D. Nevada
WILLIAM G. COBB, Magistrate Judge.
This Order is issued in response to the memorandum decision issued by the United States Court of Appeals for the Ninth Circuit on Plaintiff's appeal. (Doc. # 92.)
District Judge Robert C. Jones issued a screening order (Doc. # 9) on Plaintiff's Amended Complaint (Doc. # 10) on January 14, 2011, allowing certain claims to proceed, dismissing certain claims with and without prejudice, and dismissing certain defendants. Specifically, all claims against the State of Nevada, Nevada Department of Corrections, Ely State Prison (ESP), High Desert State Prison (HDSP), and other defendants sued in their official capacities were dismissed with prejudice. (Doc. # 9 at 15.) In addition, defendants K. Mellinger, R. Daniels, and L.C. Adams were dismissed. ( Id. ) Substantively, the court dismissed all of Plaintiff's claims with prejudice except that: (1) Count I was dismissed with leave to amend to plead a First Amendment free exercise and RLUIPA claim; and (2) the Eighth Amendment claims in Counts VI and VII were allowed to proceed. ( Id. at 16.)
Plaintiff did not file an amended complaint with respect to the First Amendment free exercise and RLUIPA claim in Count I. In Count VI, Plaintiff alleges that his Eighth Amendment rights were violated when certain defendants were deliberately indifferent to his serious medical need when they caused him to wait sixty-five days for treatment for an abscess that resulted from a decayed tooth. (Doc. # 10 at 31-32.) In Count VII, Plaintiff alleges that certain defendants were deliberately indifferent to his serious medical need when they failed to provide proper treatment for an ear infection in his left ear. (Doc. # 10 at 34-37.)
On October 11, 2011, Defendants filed a Motion to Dismiss. (Doc. # 48.) They argued: (1) Plaintiff failed to exhaust his administrative remedies with respect to Count VI; and (2) Plaintiff has not alleged defendants Baca, Bannister, Cox, Graham, Hartman, Morrow, Neven, and Skolnik violated the Constitution through their own actions in Count VII. ( Id. )
After the matter was fully briefed, the undersigned issued a report and recommendation that the motion be granted in part and denied in part. (Doc. # 55.) The undersigned recommended that the motion to dismiss be denied insofar as Defendants argued Plaintiff failed to exhaust his administrative remedies as to Count VI. ( Id. at 7.) With respect to Count VII, the court determined that Plaintiff had not properly plead a supervisory liability claim as to defendants Bannister, Hartman, Morrow, Baca, Neven, Cox, and Skolnik; however, the court recommended that Plaintiff be permitted to amend his complaint to correct these deficiencies. ( Id. at 11.) Additionally, the undersigned recommended that the motion to dismiss be granted, without leave to amend, as to defendant Graham. ( Id. )
On June 14, 2012, District Judge Robert C. Jones issued an order adopting and accepting the report and recommendation. (Doc. # 66.)
As a result, the action proceeded as to Count VI against defendant Dr. Hanson (the dentist) and defendants Baca, Bannister, Cox, Hartman, Neven, and Skolnik (on a theory of supervisory liability) and as to Count VII against defendant Clark.
Defendants then filed a motion for summary judgment on May 9, 2012 (Doc. # 58), and Plaintiff filed a cross-motion for summary judgment on May 29, 2012 (Doc. # 62). When the motions were fully briefed, the undersigned issued a report and recommendation recommending that Defendants' motion for summary judgment be granted and that Plaintiff's cross-motion for summary judgment be denied. (Doc. # 79.)
On December 10, 2012, District Judge Robert C. Jones issued an order adopting and accepting the report and recommendation. (Doc. # 83.) Judgment was entered the following day. (Doc. # 84.) Plaintiff appealed. (Doc. # 85.) In his notice of appeal, Plaintiff identified the following as the principal issues to be raised on appeal: (1) the failure to appoint counsel; (2) the failure to permit Plaintiff to amend Counts I-V and VIII-X (which were dismissed on screening); (3) the granting of Defendants' motion for summary judgment and denial of Plaintiff's cross-motion for summary judgment; and (4) the refusal to permit discovery. ( Id. )
The United States Court of Appeals for the Ninth Circuit issued its memorandum decision on March 19, 2014, affirming in part, reversing in part, and remanding the action. (Doc. # 92.) The Ninth Circuit affirmed the grant of summary judgment in favor of defendant Clark in Count VII. ( Id. at 2.) Next, the Ninth Circuit determined the court did not abuse its discretion in denying Plaintiff's motion for appointment of counsel. ( Id. )
As to Count VI, the Ninth Circuit reversed the grant of summary judgment to defendant Hanson, and remanded the claim, finding that Hanson did not provide evidence explaining the delay in treatment of Plaintiff's dental problem such that a triable dispute remained as to whether he acted with deliberate indifference. ( Id. ) Because the decision to grant summary judgment as to supervisory defendants Baca, Bannister, Cox, Hartman, Morrow, and Neven was based on the conclusion that Hanson did not act with deliberate indifference, the Ninth Circuit reversed the grant of summary judgment as to these defendants as well, and remanded for further proceedings. ( Id. at 3.) As a result of the reversal and remand, the Ninth Circuit did not consider whether the court abused its discretion in denying Plaintiff's request for discovery included in his opposition to summary judgment. ( Id. )
Finally, the Ninth Circuit found that the court prematurely dismissed, without leave to amend, claims in its order filed on January 14, 2011, stating that "it is not absolutely clear' that the deficiencies cannot be cured by amendment." ( Id. ) As such, the Ninth Circuit reversed and remanded for the court to provide Plaintiff with notice of the deficiencies in the complaint and to allow him to amend. ( Id. )
In view of the Ninth Circuit's decision, the court has taken the initial step of reviewing the claims in Counts I-V and VIII-X, that were originally dismissed with prejudice on screening. As set forth in detail below, and in accordance with the decision of the Ninth Circuit, the court will allow certain of Plaintiff's claims to proceed, and advises Plaintiff as to the deficiencies with respect to others, instructing him to amend, if possible. Once the status of the operative complaint (or any amended complaint) is settled, the court will issue further necessary orders or conduct a status conference to address how the action will proceed.
A. COUNT I
1. Fourteenth Amendment
In the First Amended Complaint, Plaintiff alleges that his rights under the Fourteenth Amendment were violated by defendants Baca, Morrow, Garcia, Graham, Nash, Deal, Wuest, Baker and Drain when they, as classification committee members, deprived Plaintiff of due process related to his placement in administrative segregation. (Doc. # 10 at 11 ¶ 1.) He further asserts that defendants Neven, Scillia, McDaniel and Cox indirectly violated his rights because he made them aware of the due process deprivation and they did nothing to remedy the situation. ( Id. ¶ 2.)
Plaintiff alleges that as a result of their action, he was subject to conditions of confinement that imposed an "atypical and significant hardship in relation to the ordinary incidents of prison life." ( Id. at 12 ¶ 3.) Plaintiff asserts his confinement to segregation was indefinite. ( Id. )
Plaintiff contends that on July 1, 2009, he was served with a notice that he was being placed in administrative segregation and would receive a hearing within three days. ( Id. ¶ 5.) Plaintiff then listed the names of the witnesses he wished to call and sought the production of video evidence. ( Id. ) Plaintiff claims, however, that the hearing was not held by defendants Baca, Morrow and Garcia within three days, and he was then placed in segregated housing. ( Id. at 12-13 ¶ 6.) Plaintiff filed an emergency grievance stating that he had not received his hearing and asked to be released from segregation, but received no response. ( Id. at 13 ¶ 7.) After approximately fifty days, on August 19, 2009, Plaintiff was released from segregation, only to be returned there on September 11, 2009. ( Id. ¶ 8.) Plaintiff acknowledges he received a notice he would be placed in segregated housing this second time, but once again, he did not receive a hearing before the committee before he was retained in segregated housing. ( Id. ) He says the defendants responsible for this were Baca, Morrow and Graham. ( Id. )
Then, fifty-eight days later, on November 7, 2009, Plaintiff alleges he attended a disciplinary hearing. ( Id. at 13 ¶ 9.) Plaintiff was convicted and received time in disciplinary segregation, but appears to complain that the time he already spent in administrative segregation, which he contends was the same as disciplinary segregation, should have been applied to that punishment. ( Id. )
Next, Plaintiff alleges that between November 7, 2009, and December 15, 2009, he was arbitrarily classified and transferred from a medium custody facility to a maximum custody facility, but did not receive the requisite forty-eight hour written notice or a hearing before a three member panel. ( Id. at 14 ¶ 10.) He implicates defendant Nash in connection with this allegation. ( Id. ) On December 15, 2009, Plaintiff arrived at ESP's segregated housing unit, and without notice or a hearing, Plaintiff's disciplinary segregation time was suspended and he was placed in administrative segregation. ( Id. ¶ 11.)
On January 7, 2010, Plaintiff was returned to HDSP's segregation unit. ( Id. ) He asserts this was also without notice or a hearing, as a result of the conduct of defendants Baca, Morrow, and Wuest. ( Id. ) 156 days later, Plaintiff was returned to ESP and was placed in administrative segregation by defendants Drain and Baker. ( Id. ¶ 12.) Despite his requests to them, these defendants told him he would not receive a hearing and would remain in administrative segregation indefinitely. ( Id. ) Plaintiff advised defendant Skolnik of this, to no avail. ( Id. at 15 ¶ 13.)
Plaintiff alleges that in these segregated housing units he has been denied participation in the inmate food or clothing package program while general population inmates receive up to four packages through this program per year. ( Id. ¶ 14.) Plaintiff asserts he is denied access to his personal clothing, while general population inmates receive their clothing. ( Id. ¶ 15.) He is only allowed to shower every seventy-two hours, and is escorted to and from the showers in only his underwear and in hand and ankle shackles, placing his health in danger because he is forced to kneel on his bare knees in dirt, hair, waste, fecal matter, urine, lint, bacterial and soap scum, while general population inmates walk to the showers every day, unshackled, in a bathrobe or other clothing, and shower in a sanitary manner. ( Id. )
He further avers that he does not have a personal coat to wear outside in cold weather and must wear the same unsanitary coat that forty-eight other inmates wear or be denied outdoor exercise, while general population inmates can wear their own coats. ( Id. ¶ 16.) He is not permitted to wear gloves or take water outside while general population inmates have access to water, soda, coffee, or cocoa, and gloves. ( Id. at 15-16 ¶ 16.)
Plaintiff is confined to his cell twenty-four hours a day and is isolated from contact with other inmates. ( Id. at 16 ¶ 7.) He cannot converse with staff, and cannot view other people. ( Id. ) If inmates in the unit want to talk to another, they must shout loudly which also deprives inmates of sleep. ( Id. )
Plaintiff claims he is housed with mentally ill inmates who constantly bang on items in their cells, flood their cells, light fires, scream obscenities, and flush their toilets, which causes officers to spray mace in the units. ( Id. ¶ 18.)
Plaintiff contends that unlike general population inmates, he has been denied access to religious services and rehabilitative programs. ( Id. ¶ 19.)
The Fourteenth Amendment provides, "[n]o State shall... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend XIV, § 1. To invoke its protections, an inmate "must establish that one of these interests is at stake." Wilkinson v. Astrue, 545 U.S. 209, 221 (2005); see also Wolff v. McDonnell, 418 U.S. 539, 558 (1974); Chappell v. Mandeville, 706 F.3d 1052, 1062 (9th Cir. 2013). Once the plaintiff has established that one of these interests is at stake, the court's analysis turns to whether the inmate suffered a denial of adequate procedural protections. See Biggs v. Terhune, 334 F.3d 910, 913 (9th Cir. 2003) (citations omitted).
"A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word liberty, '... or it may arise from an expectation or interest created by state laws or policies[.]" Wilkinson, 545 U.S. at 221 (citing Vitek v. Jones, 445 U.S. 480, 493-94 (1980) (finding a liberty interest in avoiding involuntary psychiatric treatment and transfer to mental institution under Due Process Clause itself) and Wolff v. McDonnell, 418 U.S. 539, 556-558 (1974) (finding a liberty interest in avoiding withdrawal of state-created system of good-time credits)); see also Chappell, 706 F.3d at 1062 (citing Mendoza v. Blodgett, 960 F.2d 1425, 1428 (9th Cir. 1992)).
First, under the Constitution itself, a liberty interest is implicated when the conditions of confinement "[exceed] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force." Mitchell v. Dupnik, 75 F.3d 517, 523 (9th Cir. 1996) (internal quotation marks and citation omitted); see also Chappel, 706 F.3d at 1062-63 (citations and internal quotation marks omitted) ("[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight.") (holding that "investigative contraband watch is the type of condition of confinement that is ordinarily contemplated by the sentence imposed."). The Ninth Circuit has recognized that "only the most extreme changes in the conditions of confinement" such as "involuntary commitment to a mental institution" and "forced administration of psychotropic drugs" have been found to "directly invoke the protections of the Due Process Clause." Chappel, 706 F.3d at 1063 (citing Vitek v. Jones, 445 U.S. 480, 493-94 (1980) and Washington v. Harper, 494 U.S. 210, 221-22 (1990)). Other circumstances where a liberty interest has been found as arising from the Due Process Clause itself include: revocation of probation, Gagnon v. Scarpelli, 411 U.S. 778 (1973); revocation of parole status (not just mere denial of parole), Morrissey v. Brewer, 408 U.S. 471 (1972); and labeling an inmate as a sex offender, Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997).
Second, "[a] state may create a liberty interest through statutes, prison regulations, and policies." Chappell, 706 F.3d at 1063 (citing Wilkinson v. Austin, 545 U.S. 209, 222 (2005) and Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir. 1997).
In Meachum v. Fano, the Supreme Court held that "the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement." Wilkinson, 545 U.S. at 221-22 (citing Meachum v. Fano, 427 U.S. 215, 225 (1976) (confinement in any of state's institutions is within normal limits or range of custody which the conviction authorized state to impose)). However, as indicated above, "a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations, subject to the important limitations set forth in Sandin v. Conner [.]" Wilkinson, 545 U.S. at 222 (citing Sandin ). Sandin rejected the previously employed approach for evaluating whether there was a state-created liberty interest which looked at the mandatory language of prison regulations. See id. (citing Sandin, 515 U.S. at 481). Instead, Sandin directed that it was more important to look at the "nature of the deprivation." Id. (citing Sandin, 515 U.S. at 481).
Sandin held that liberty interests created by the state are generally limited to "freedom from restraints which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483-84; see also Wilkinson, 545 U.S. at 222-23 (quoting Sandin ); Chappell, 706 F.3d at 1063-64 (recognizing the same).
The Supreme Court has thus far declined to establish a "baseline from which to measure what is atypical and significant in any particular prison system." Wilkinson, 545 U.S. at 223 (noting inconsistent conclusions among the circuits, but concluding that assignment to Ohio's "Supermax" facility satisfied this standard "under any plausible baseline"). However, the Ninth Circuit has concluded that in order to determine whether a restraint imposes "atypical and significant hardship, " a court considers a condition or combination of conditions or factors on a case by case basis, rather than invoking a single standard. See Chappell, 706 F.3d at 1064 (quoting Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (confirming that the inquiry is "context-dependent" and requires "fact by fact consideration"); see also Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003); Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) ("[t]here is no single standard for determining whether a prison hardship is atypical and significant" and each analysis requires "case by case, fact by fact consideration.").
At least three factors have been used to guide this inquiry: (1) "whether the conditions of confinement mirrored those conditions imposed upon inmates in analogous discretionary confinement settings, namely administrative segregation and protective custody;'" (2) "the duration and intensity of the conditions of confinement;" and (3) "whether the change in confinement would inevitably affect the duration of [the prisoner's] sentence.'" Chappell, 706 F.3d at 1064-65 (italics and alteration in original) (quoting Pifer v. Marshall, 139 F.3d 907 (9th Cir. Feb. 24, 1998) (unpublished)); see also Serrano, 345 F.3d at 1078 (citing Sandin, 515 U.S. at 486-87); Keenan, 84 F.3d at 1089. Thus, " Sandin requires a factual comparison between conditions in general population or administrative segregation (whichever is applicable) and disciplinary segregation, examining the hardship caused by the prisoner's challenged action in relation to the basic conditions of life as a prisoner." Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003).
If a liberty interest is implicated, when an inmate is placed in segregated housing, he must be provided, within a reasonable time after such placement, with an informal, nonadversary review of the evidence justifying the decision to segregate the inmate. See Hewitt v. Helms, 459 U.S. 460, 476 (1983), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). After being placed in segregation, prison officials must periodically review the initial placement. See Hewitt, 459 U.S. at 477 n. 9.
By contrast, when an inmate faces disciplinary charges, due process requires that he receive: (1) written notice of charges; (2) at least twenty-four hours between the time the prisoner receives the written notice and the time of the hearing, so that the prisoner may prepare his defense; (3) a written statement by the hearing officer of the evidence relied upon and the reasons for taking disciplinary action; (4) the right to call witnesses in his defense, when permitting him to do so would not be unduly hazardous to institutional safety or correctional goals; and (5) legal assistance if the prisoner is illiterate or the issues presented are legally complex. Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
Upon further review of Plaintiff's allegations, and in light of the Ninth Circuit's decision, the court finds Plaintiff states a colorable claim for denial of his due process rights under the Fourteenth Amendment in Count I. Plaintiff has alleged facts that the conditions of confinement in segregation, whether administrative or disciplinary segregation, do not mirror those in general population. While not all of the facts alleged are indicative of the type of "atypical and significant hardship" required by Sandin, he includes averments that plausibly suggest the denial of a protected liberty interest, including that unlike general population inmates, he is in his cell twenty-four hours a day, isolated from all contact with others; he is housed with mentally ill inmates who create disturbances at all hours; he is denied access to religious and rehabilitative programs; and that his showers are limited in number and take place under much more restrictive conditions than general population inmates. Coupled with the allegation that his confinement to segregation is indefinite, Plaintiff has sufficiently alleged the deprivation of a liberty ...