889 F2d 1096 Sands II v. Adams

889 F.2d 1096

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Royce Calvin SANDS, II Plaintiff-Appellant,
v.
Jim ADAMS, Warden; Mike Coe; Wayne Dorn, et al.,
Defendant-Appellees.

No. 88-2704.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 4, 1989.*
Decided Nov. 20, 1989.

Before WALLACE, PREGERSON and ALARCON, Circuit Judges.

1

MEMORANDUM**

2

Plaintiff/Appellant Royce Calvin Sands, II (Sands) appeals from the order granting summary judgment in favor of James Adams, Mike Coe, and Wayne Dorn, et al., (defendants) who are individual employees at the Arizona Department of Corrections (ADOC), in this 42 U.S.C. Sec. 1983 action for damages. Sands seeks reversal on the following grounds: (1) the district court erred in finding that Sands had failed to demonstrate that there was a dispute as to any material issue of fact, (2) the defendants deprived him of his right to procedural due process in four different disciplinary hearings, (3) the defendants deprived him of his constitutional right not to be transferred from one maximum custody cell to another, and (4) the defendants violated his right to the free exercise of religion by precluding him from attending chapel services. We conclude that none of these contentions has merit and affirm. We discuss each issue and the facts pertinent thereto under separate headings.

I. STANDARD OF REVIEW

3

This court "reviews de novo the grant of summary judgment and will affirm if the pleadings and supporting materials show the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Medallion Television Enterprises, Inc. v. SelecTV of Calif., Inc., 833 F.2d 1360, 1362 (9th Cir.1987) (Citation omitted), cert. denied, 109 S.Ct. 3241 (1989).

II. MATERIAL ISSUES OF FACT

4

Sands contends that the district court erred in finding that he did not raise any material issue of fact in opposing the defendants' motion for summary judgment. Sands has failed to cite to any portion of the record to support his claim that there are issues of material fact in dispute. We have reviewed the record and have found none.

5

III. DUE PROCESS IN PRISON DISCIPLINARY HEARINGS

6

Sands contends that defendants violated the Fourteenth Amendment by denying him his right to procedural due process in four separate disciplinary hearings. We disagree. After setting forth the procedural due process principles applicable to prison disciplinary hearings, we discuss each of Sands' contentions and the facts pertinent thereto under separate headings.

7

In Wolff v. McDonnell, 418 U.S. 539, 557 (1974), the Supreme Court held that an inmate who faces the loss of a state-created liberty interest such as good time credits is entitled to "those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated." An inmate should be allowed (1) written notice of the charges against him at least twenty-four hours prior to any disciplinary action, (2) a written statement setting forth the basis for the disciplinary action taken against the prisoner, and (3) the opportunity to call witnesses as long as it would not be "unduly hazardous to institutional safety or correctional goals." Id. at 563-67. The Supreme Court made clear in Wolff that it was not suggesting that minimum due process procedures were required "for the imposition of lesser penalties such as the loss of privileges." Id. at 571-72 n. 19.

8

Because of the flexible nature of the due process requirements, each of the four disciplinary hearings must be reviewed separately. See Id. at 560 (" '[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.' [Citation.]")

A. First Disciplinary Hearing

9

At the first disciplinary hearing held on April 26, 1984, Sands was found guilty of a minor rules violation. Sands alleges that the sentencing imposed was a loss of privileges for fifteen days. A minor rules violation, as defined by the ADOC, carries a "minor penalty not including loss of time credits or confinement and not including restitution."

10

Sands contends that the defendants deprived him of his right to procedural due process by not allowing him to call witnesses at his hearing. Because the charges and penalty imposed against Sands were minor, the procedural requirements set forth in Wolff were not applicable. Wolff, 418 U.S. at 571-72 n. 19. The alleged denial of the opportunity to call witnesses at the first disciplinary proceeding did not violate Sands' procedural due process rights.

B. Second Disciplinary Hearing

11

On May 18, 1984, Sands was charged with fighting, a major violation. Sands was locked down for twelve days pending the disciplinary hearing. At the hearing, Sands was found not guilty of the charges.

12

While Sands' contention is not totally clear, he appears to complain that the lock down pending a hearing over a false charge was "arbitrary action" violating his right to procedural due process. The record does not show that the defendants deprived Sands of any protected liberty interest derived directly from the Due Process Clause itself or accorded under state law. Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir.1986), cert. denied, 481 U.S. 1069 (1987).

13

In Hewitt v. Helms, 459 U.S. 460 (1983), the Supreme Court stated that "prison officials have broad administrative and discretionary authority over the institutions they manage ... [while] lawfully incarcerated persons retain only a narrow range of protected liberty interests." Id. at 467. Accordingly, not every "substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause." Id. The Court held that the Due Process Clause does not in itself protect an inmate from being placed in a more restrictive setting pending a hearing since this is "well within the terms of confinement ordinarily contemplated by a prison sentence." Id. at 468.

14

We have previously noted that Arizona has not created a protected liberty interest concerning an administrative decision to segregate a prisoner from the general population.

15

[N]one of the statutes or regulations promulgated by the Arizona legislature or state correctional officials concerning administrative segregation contain the "mandatory language" [necessary to create a liberty interest under Hewitt ]. See Ariz.Admin.Comp. R5-1-201 to 5-1-607. Therefore we think it unlikely that state law created a liberty interest in remaining within the general prison population.

16

McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir.1986). Sands has not demonstrated that he was entitled to procedural due process protections prior to being locked down.

C. Third Disciplinary Hearing

17

The third disciplinary hearing occurred on or about January 10, 1985. Sands was charged with a minor rules violation after he had to be placed into his cell forcibly when he refused to reenter it. The Disciplinary Committee denied Sands' request to call witnesses because Sands had not submitted a written list of witnesses prior to the hearing. Again, Sands argues that the defendants violated his right to call witnesses.

18

Although the charge was minor, Sands received a sanction of five days' cell restriction. In Wolff, the Court noted that an inmate is deprived of a protected liberty interest if the penalty imposed "represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct." Wolff, 418 U.S. at 571-72 n. 19. Unlike the loss of privileges, "confinement" is a sanction imposed for major violations in the Arizona prison system. It is not clear from the record whether "confinement" refers to placement in a different level of custody or can include restrictions to the same cell without exercise or other proceedings.

19

Assuming arguendo that Sands was subjected to "confinement" for a major violation of prison rules, and that Wolff protections apply, see Hewitt, 459 U.S. at 468 and Toussaint, 801 F.2d at 1091-92, the requirement that Sands submit a list of witnesses before the hearing began did not violate Sands' due process rights under the Wolff standards. In Ponte v. Real, 471 U.S. 491 (1985), the Supreme Court stated "the inmate's right to present witnesses is necessarily circumscribed by the penological need to provide swift discipline in individual cases." Id. at 495. The Court further instructed that "[t]his right is additionally circumscribed by the very real dangers in prison life which may result from violence or intimidation directed at either other inmates or staff." Id. Considering the limited nature of a prisoner's right to call witnesses, it was within the Disciplinary Committee's discretion to require a list of witnesses in order to determine whether the calling of the persons named would result in violence or intimidation or would unduly deter the imposition of swift discipline.

20

Sands further contends that his constitutional rights were violated because Defendant Leonard presided over this hearing at which Defendant Northrup, Leonard's supervisor, appeared as a witness. Although an impartial decision maker is an important requirement of due process [See, eg., Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (stating that a "neutral and detached" hearing body is a minimum requirement of due process) ], in a prison setting the decision maker need not come from outside the prison. Vitek v. Jones, 445 U.S. 480, 496 (1980).

21

Sands does not suggest any personal bias on Leonard's part. In fact, the record shows that Leonard replaced Northrup as Coordinator of Discipline in order to provide Sands with an impartial hearing. The fact that Leonard presided over Sands' third disciplinary hearing did not violate his right to procedural due process.

E. Fourth Disciplinary Hearing

22

The fourth hearing challenged by Sands took place on August 12, 1985 and involved a major violation. Sands was charged with disobeying a direct order to "shut up" during a disturbance involving another inmate. Sands claims that his constitutional rights were violated by being placed on investigative lock down status prior to his hearing. As discussed above with respect to the second disciplinary hearing, a lock down prior to an administrative hearing for a major violation does not violate due process.

IV. PRISON CELL TRANSFER

23

Sands contends that he has a constitutional right not to be transferred to another cell block within the same unit. Sands was transferred within the Central Unit in which all cells are designated as "maximum custody." CR 80, Exh. C. The Supreme Court noted in Hewitt that " '[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.' " Hewitt, 459 U.S. at 468 (quoting Montanye v. Haymes, 427 U.S. 236, 242 (1976)); See also Olim v. Wakinekona, 461 U.S. 238 (1983) (inmate's transfer to another state is within the normal range of custody and thus not protected by the Due Process Clause). Clearly, being transferred from one maximum custody cell to another is within the normal range of custody.

24

In Rizzo v. Dawson, 778 F.2d 527 (9th Cir.1985), the plaintiff, a California prisoner, claimed that transfer to another state prison without a hearing violated his constitutional rights. Id. at 530. We disagreed and noted that "unless there is some guarantee that transfer will not be effected except for misbehavior or some other specified reason," the prisoner has no liberty interest in not being transferred. Id. at 531. Sands has not demonstrated that the defendants were restricted by Arizona law or prison regulations from transferring a prisoner within the Central Unit. Accordingly, Sands has failed to present facts showing that he was deprived of a protected liberty interest.

V. DENIAL OF CHAPEL SERVICE

25

Sands was removed from the religious services turnout list from January, 1985 through October, 1985. Sands asserts that this denial of access to chapel services violated his right to the free exercise of religion.

26

A prison regulation that allegedly deprives an inmate of his religious rights is constitutional if " 'it is reasonably related to a legitimate penological interest.' " O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (citation omitted). The reasonableness of the regulation is determined by balancing various factors:

27

(1) whether the regulation has a logical connection to the penological interests invoked to justify it; (2) whether the prisoners remain free to participate in other religious activities; (3) whether accommodating the prisoners, [sic] asserted rights would have adverse effects on the institution; and (4) whether ready alternatives that fully accommodate the prisoners' rights could be implemented at de minimus cost to valid penological interests.

28

Standing Deer v. Carlson, 831 F.2d 1525, 1528 (9th Cir.1987) (citing O'Lone, 482 U.S. at 348-52.)

29

The prison chaplain stated in an affidavit submitted to the district court that Sands was denied attendance at Sunday services because Sands' attitude had "deteriorated" to the point that he was destroying the worship services. This court must accept the prison chaplain's determination that allowing Sands to attend chapel services would disrupt institutional safety. O'Lone 482 U.S. at 353 (courts should not substitute their judgment on sensitive issues of institutional administration for "the determinations of those charged with the formidable task of running a prison"). The desire to maintain order at prison chapel services is a legitimate penological interest that was logically connected to the denial of Sands' access to the services. See Standing Deer 831 F.2d at 1528 (banning religious head bands in the prison dining hall has a logical connection to the penological interests of cleanliness, security, and safety).

30

The record shows that Sands was not completely barred from religious activity. Sands was continually accorded the opportunity to visit with the prison chaplain upon request. Sands has not "pointed to an obvious, easy alternative that fully accommodates [his] rights at de minimus cost to penological interests. [Citations.]" Standing Deer 831 F.2d at 1529. The regulation correctly balanced Sands' religious rights with the prison's legitimate penological interests.

VI. DENIAL OF ACCESS TO LAW LIBRARY

31

Sands contends that his right to procedural due process was violated by being deprived access to the prison law library during May and June of 1985. The defendants submitted an affidavit in which it is alleged that Sands did not submit kites (requests for library attendance) after July, 1984. In contrast, Sands submits an inmate's affidavit stating that the inmate submitted kites on Sands' behalf in May and June of 1985. These conflicting affidavits demonstrate that a dispute of fact exists with respect to whether Sands actually submitted requests for law library attendance.

32

Sands has not alleged or demonstrated any injury resulting from the denial of law library access. In Sands v. Lewis, 878 F.2d 1188 (9th Cir.1989), we adopted the Third Circuit's approach to the requirement that facts must be alleged showing injury resulting in denial of a "right of access" to a prison library.

33

[A] court must first determine whether the right of access claimant alleges inadequate " 'law libraries or alternative sources of legal knowledge,' " [Peterkin v. Jeffes, 855 F.2d 1021, 1041 (3rd Cir.1988) ] that is, whether the claimant alleges a denial of "adequate law libraries or adequate assistance from persons trained in the law." [Bounds v. Smith, 430 U.S. 817, 828 (1977) ] Second, if the claims do not involve such an allegation, the court must consider whether the plaintiff has alleged an "actual injury" to court access. An "actual injury" consists of some specific " 'instance in which an inmate was actually denied access to the courts.' " [Citations].

34

Sands, 878 F.2d at 1192.

35

Sands does not claim that the law library is inadequate or that he is part of a class of inmates that is completely barred access to the facilities. See Peterkin, 855 F.2d at 1041 (a class of inmates that is prohibited from visiting the law library need not allege or demonstrate prejudice). Thus, Sands' reliance on Storseth v. Spellman, 654 F.2d 1349 (9th Cir.1981), for the proposition that "the burden is entirely on [defendants] to demonstrate [the] adequacy" of Sands' library access is misplaced. In Storseth, we stated that the state prison "bears the burden of demonstrating the adequacy of the chosen method" of providing constitutionally adequate legal access. Storseth 654 F.2d at 1352. It is not the method of access of which Sands complains, but rather the failure of defendants to act on his request to use the library. Therefore, Sands must show actual injury. Sands, 878 F.2d at 1192. He has failed to do so. Accordingly, any dispute as to whether Sands actually submitted kites in May and June of 1985 is not a material issue of disputed fact requiring a trial.

36

The judgment of the district court is AFFIRMED.

*

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4

**

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