Barnett v. Centoni, No. 93-16930

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 31 F.3d 813
• Parties: Lee Max BARNETT, Plaintiff-Appellant, v. Helen CENTONI, Correctional Officer, San Quentin State Prison; S. Donahue, Correctional Officer, San Quentin State Prison, Defendants-Appellees.
• Docket Number: No. 93-16930
• Decision Date: 18 July 1994

Page 813

31 F.3d 813 Lee Max BARNETT, Plaintiff-Appellant,
v.
Helen CENTONI, Correctional Officer, San Quentin State
Prison; S. Donahue, Correctional Officer, San
Quentin State Prison, Defendants-Appellees. No. 93-16930. United States Court of Appeals,
Ninth Circuit. Submitted July 18, 1994 ^*.
Decided July 27, 1994.

Page 814

Lee Max Barnett, pro se.

Peter J. Siggins, Deputy Atty. Gen., San Francisco, CA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before: FARRIS, KOZINSKI, and NOONAN, Circuit Judges.

PER CURIAM:

California state prisoner Lee Max Barnett, a death row inmate, appeals pro se the district court's summary judgment in favor of corrections officials in Barnett's 42 U.S.C. Sec. 1983 action. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part, reverse in part, and remand for further proceedings.

I. Background

In January 1992, Barnett wrote a harassing letter to the parents of a key prosecution witness in Barnett's criminal trial. The witness had recently committed suicide. On February 7, 1992, the Butte County District Attorney's office requested that prison officials prevent Barnett from harassing individuals associated with his criminal case. Barnett was charged with a disciplinary rule violation, and the charging officer recommended that Barnett be considered for reclassification from grade A to grade B to prevent him from sending other such letters. ¹ Barnett was notified on February 13, 1992 that an administrative classification hearing would be held within 10 days to review his classification.

On February 20, 1992, a hearing was held and prison officials determined that a grade B classification was administratively warranted pending the hearing on the disciplinary charge. On March 10, 1992, while in grade B, Barnett was found in possession of inmate manufactured alcohol ("pruno"). He was charged with this disciplinary violation and found guilty on March 17, 1992. On April 1, 1992, Barnett was found guilty of the charge arising out of the abusive letter and counselled about his behavior, but he was not assessed any significant penalty. Barnett was retained in grade B based on the pruno violation. While classified as grade B, Barnett was entitled to and received a reclassification hearing every 90 days.

In July 1992, Barnett was once again found in possession of pruno. In December 1992, Barnett became verbally abusive, employing numerous scatological terms to describe a corrections officer after she told him that he could not bring a pill, cotton balls, and a plastic bag into the yard. After abusing the guard, he then disobeyed her order to return to his cell. Further, prison officials "verified" that Barnett is an associate of the Aryan Brotherhood prison gang. Such an affiliation precludes grade A classification. Barnett's repeated violations of prison regulations and his association with the Aryan Brotherhood have led to his continued grade B classification.

Barnett filed this civil rights action alleging that (1) his classification in grade B status violated his right to due process; (2) he was reclassified to grade B in retaliation for filing separate civil rights actions; (3) he was denied contact visits with his attorney in violation of his right of access to the courts; (4) he was denied property without due process; and (5) he was denied contact visitation privileges.

Page 815

The district court granted summary judgment on Barnett's claims that he was denied due process when he was given a grade B classification; he was denied access to the courts; and he was retaliated against by prison officials for filing civil rights actions. The district court dismissed pursuant to Fed.R.Civ.P. 12(b)(6) Barnett's remaining claims that he was denied contact visitation privileges and that he was deprived of property without due process.

II. Discussion

A. Summary Judgment

Barnett contends that the district court erred by granting summary judgment on his reclassification, access to the courts and retaliation claims. We review the district court's grant of summary judgment de novo. Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir.1990). Summary judgment is appropriate if the evidence, read in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). If a nonmoving party bears the burden of proof at trial, he must establish each element of his claim with " 'significant probative evidence tending to support the complaint.' " Smolen, 921 F.2d at 963 (quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987)).

1. Reclassification Claim

Barnett contends that he was reclassified in violation of his right to due process. Barnett admits that he violated prison mail regulation, Cal.Code Regs. tit. 15, Sec. 3135 (1991), by sending the abusive letter. Barnett argues, however, that section 3135 provides only that an inmate's mail may be restricted for sending "disturbing or offensive correspondence," and does not authorize reclassification as a punishment for sending such mail. This argument fails because Barnett was reclassified as an administrative measure and not as a punitive...