15 F.3d 1463 (9th Cir. 1993), 91-16704, Conner v. Sakai

Docket Nº:91-16704.
Citation:15 F.3d 1463
Party Name:DeMont R.D. CONNER, Plaintiff-Appellant, v. Theodore SAKAI et al., Defendants-Appellees.
Case Date:June 02, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1463

15 F.3d 1463 (9th Cir. 1993)

DeMont R.D. CONNER, Plaintiff-Appellant,


Theodore SAKAI et al., Defendants-Appellees.

No. 91-16704.

United States Court of Appeals, Ninth Circuit

June 2, 1993

        Submitted Nov. 5, 1992.[*]

        Amended Feb. 2, 1994.

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[Copyrighted Material Omitted]

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        DeMont R.D. Conner, Honolulu, Hawaii, pro se, for the plaintiff-appellant.

        John Campbell, Jr., Frank D.J. Kim, Deputy Attorneys General, Honolulu, Hawaii, for the defendants-appellees.

        Appeal from the United States District Court for the District of Hawaii.

        Before: BROWNING, NORRIS, and REINHARDT, Circuit Judges.


        The opinion filed on June 2, 1993, and published at 994 F.2d 1408 (9th Cir.1993), is amended as follows:


        REINHARDT, Circuit Judge:

        DeMont R.D. Conner, a Hawaii state prisoner serving a thirty-years-to-life sentence, appeals pro se the district court's grant of the state's motion for summary judgment, and the district court's denial of his cross-motion for summary judgment, on his Sec. 1983 suit against a number of prison officials 1 and the State of Hawaii. We reverse, as to certain of the defendants, the district court's grant of summary judgment in the state's favor on certain of Conner's claims: that he was improperly subjected to disciplinary segregation and that he was punished for praying aloud in Arabic with a fellow inmate. We affirm the remainder of the district court's order, including the denial of Conner's cross-motion for summary judgment.


  1. State's Motion for Summary Judgment

    1. Sovereign Immunity

              The state correctly contends that the eleventh amendment bars Conner's suit against the State of Hawaii, Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), Quern v. Jordan, 440 U.S. 332, 338-41, 99 S.Ct. 1139, 1143-45, 59 L.Ed.2d 358 (1979), 2 and Conner's suit against the other defendants in their official capacities, Hafer v. Melo, --- U.S. ----, ----, 112 S.Ct. 358,

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      362, 116 L.Ed.2d 301 (1991). However, the eleventh amendment does not bar Conner's suit against the other defendants in their personal capacities. Id. at ----, 112 S.Ct. at 362.

    2. Disciplinary Segregation

              Conner contends that the disciplinary segregation imposed on him after a hearing on August 28, 1987, violated his right to due process. He asserts that, before the hearing, he was not given a summary of the facts leading to the charges, that he was not permitted to question the guard who charged him with the offense, that he was not allowed to call witnesses at the hearing, and that his testimony was "doctor[ed]" and used against him. We agree that Conner has presented a genuine issue of material fact as to whether his hearing comported with due process.

              The first issue we face is whether Conner had a liberty interest, protected by the fourteenth amendment, in not being arbitrarily placed in disciplinary segregation. The fourteenth amendment protects liberty interests arising from the Due Process Clause or created by state law. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983). To discover whether state law has created a liberty interest, we must "examine closely the language of the relevant statutes and regulations" to see whether the state has placed "substantive limitations on official discretion." Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989) (internal quotation omitted; citation omitted). Most commonly, a state fetters official discretion by a two-step process. First, the state establishes "substantive predicates" to govern official decisionmaking. These are "particularized standards or criteria to guide the State's decisionmakers." Id. Next, the state requires, in "explicitly mandatory language," that if the substantive predicates are met, a particular outcome must follow. Id. at 461-64, 109 S.Ct. at 1909-10. We conclude that Hawaii's regulations create a liberty interest in remaining free from disciplinary segregation. The regulations provide explicit standards that fetter official discretion. Under Title 17, subtitle 2 (Corrections Division), Department of Social Services and Housing, Sec. 17-201-18(b) ("Sec. 17-201-18(b)"), the inmate must admit guilt or the prison disciplinary committee must be presented with substantial evidence before the committee may make a finding of guilt. If the inmate does not admit guilt, or the committee does not find substantial evidence, the particular outcome--freedom from disciplinary segregation--must follow. Sec. 17-201-18(b).

              Having found that Conner possessed a liberty interest in not being confined to disciplinary segregation, we now proceed to the issue whether he was afforded sufficient process before being so confined.

              i. summary of facts

              Under the Due Process Clause, an inmate facing a disciplinary hearing must be given advance notice of the hearing. Wolff v. McDonnell, 418 U.S. 539, 563-65, 94 S.Ct. 2963, 2978-79, 41 L.Ed.2d 935 (1974). Even if state administrative regulations supply additional process due to inmates of Hawaiian prisons, see Sec. 17-300-3 et seq., 3 and even if inmates may sue to enforce such regulations in federal court, there is no genuine issue of material fact as to whether Conner was given the opportunity to review the facts and other materials supporting the charge against him. The record contains a form, apparently signed and dated by Conner, that recites the charge against him and states, "Facts supporting the charge(s) are as stated on the attached Misconduct Report." Because Conner does not contest that he signed and dated the form or that the misconduct report was attached, and does not otherwise dispute the authenticity of the form, he has failed to show that a genuine issue of material fact exists as to this contention. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548,

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      2463, 91 L.Ed.2d 265 (1986); Fed.R.Civ.Pro. 56(c).

              ii. cross-examination

              No genuine issue of material fact exists as to Conner's contention that he was not permitted to cross-examine the guard who charged him with misconduct. The Due Process Clause does not require prison administrators to afford inmates such a right. Wolff v. McDonnell, 418 U.S. at 567-69, 94 S.Ct. at 2980-81. Even if state regulations may be enforced in a case such as this, Hawaii has not created a due process right to cross-examine witnesses at a disciplinary hearing. 4

              iii. alteration of testimony

              Conner has not raised a genuine issue of material fact to support his contention that his testimony at his hearing was doctored. His affidavits do not disclose the alterations allegedly made. Bare allegations do not suffice to defeat a motion for summary judgment; Conner's obligation, rather, was to relate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. at 2552.

              iv. witnesses

              Under Wolff v. McDonnell, an inmate "should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." 418 U.S. at 566, 94 S.Ct. at 2979. The state's regulations, even if applicable, do not expand on this right. 5 A genuine issue of material fact exists as to Conner's contention that he was not permitted to call witnesses at his hearing. The record contains a form, apparently distributed to Conner after the hearing, that states that witnesses were unavailable at the hearing "due to the move to the medium facility and being short staffed on the modules."

              Prison disciplinary committees may not deny a defendant the right to call important witnesses solely for the sake of administrative efficiency. Bostic v. Carlson, 884 F.2d 1267, 1273 (9th Cir.1989). Rather, they must show the adequacy of their justification for denying a request to present witnesses in a disciplinary proceeding. Id. Further, we note that "[t]he security issues that concerned the Wolff Court were the risk of death or injury to inmate witnesses and informants identified at hearings or in produced documents, as well as the potential for breakdown in authority, order and discipline inside the institution." Young v. Kann, 926 F.2d 1396, 1400 & nn. 8, 9 (3d Cir.1991). It is not clear that these were the concerns that motivated the disciplinary committee that considered Conner's case.

              In the context of a motion for summary judgment, the prison's burden to show the adequacy of its justification for denying an inmate the right to present witnesses at his hearing is the one it would bear in a motion for a judgment as a matter of law (directed verdict) under Fed.R.Civ.Pro. 50(a). Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552. Such a burden requires that the evidence "permit[ ] only one reasonable conclusion as to the verdict." McGonigle v. Combs, 968 F.2d 810, 816 (9th Cir.1992), cert. denied sub nom. Casares v. Spendthrift Farm, Inc.,

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      --- U.S. ----, 113 S.Ct. 399, 121 L.Ed.2d 325 (1992). In stating without more that "witnesses were unavailable due to [the] move to the medium facility and being short...

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