Melnik v. Dzurenda

• Decision Date: 27 September 2021
• Docket Number: No. 20-15378,20-15378
• Parties: John MELNIK, Plaintiff-Appellee, v. James DZURENDA; Dwight Neven, Warden; Jay Barth, Sgt.; Jason Satterly, c/o; Anthony Warren, c/o; Stacey Barrett, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

14 F.4th 981

John MELNIK, Plaintiff-Appellee,

v.James DZURENDA; Dwight Neven, Warden; Jay Barth, Sgt.; Jason Satterly, c/o; Anthony Warren, c/o; Stacey Barrett, Defendants-Appellants.

No. 20-15378

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2021 Las Vegas, Nevada

Filed September 27, 2021

Frank A. Toddre II (argued), Senior Deputy Attorney General; D. Randall Gilmer, Chief Deputy Attorney General; Aaron D. Ford, Attorney General; Attorney General's Office, Las Vegas, Nevada; for Defendants-Appellants.

Yaira Dubin (argued), O'Melveny & Myers LLP, New York, New York; Jonathan D. Hacker, O'Melveny & Myers LLP, Washington, D.C.; Melissa C. Cassel, O'Melveny & Myers LLP, San Francisco, California; Samuel Weiss, Rights Behind Bars, Washington, D.C.; for Plaintiff-Appellee.

Before: Richard R. Clifton, Jacqueline H. Nguyen, and Mark J. Bennett, Circuit Judges.

Dissent by Judge Bennett

CLIFTON, Circuit Judge:

John Melnik, a Nevada prisoner, brought this Section 1983 action against six individuals, all former or current employees of the Nevada Department of Corrections.¹ He alleged that they violated his constitutional rights by denying him the ability to examine certain documents that could serve as evidence in a prison disciplinary proceeding pending against him. Defendants sought summary judgment on the ground that they were entitled to qualified immunity, but the district court denied that motion. Defendants appeal that denial.

We conclude that Defendants were not entitled to qualified immunity because Melnik had a constitutional right under the Due Process Clause of the Fourteenth Amendment to be permitted to examine documentary evidence for use in the prison disciplinary hearing. We further conclude that this right was clearly established at the time when Melnik was denied access to the material. We affirm the district court's denial of Defendants’ motion for summary judgment.

I. Background

Melnik, then a prisoner at Nevada's High Desert State Prison, was charged with unauthorized or inappropriate use of the prison mail system. An anonymous prisoner informed prison officials that Melnik was using the mail system to smuggle drugs into the prison. After this tip, prison officials intercepted two envelopes addressed to Melnik which contained methamphetamine in secret compartments in the enclosed letters. After Melnik was notified of the prison charges, he asked multiple times to be able to examine the envelopes or copies of the envelopes, but those requests were denied or ignored. At the prison disciplinary hearing that followed, images of the envelopes and information about their contents were the only evidence presented to support the charges. Melnik testified that he was innocent and had been framed by other inmates. Melnik was found guilty.

As a result of the two violations, Melnik received two separate eighteen-month terms of disciplinary segregation to be served consecutively for a total of thirty-six months. Melnik served ten months of this sentence before it was suspended. As a result of these sanctions, Melnik contends that his consideration for parole was delayed for two years.

The district court held that Defendants were not entitled to qualified immunity and denied their motion for summary judgment. Melnik v. Dzurenda , No. 16-00670, 2020 WL 607122, at *6–7 (D. Nev. Feb. 7, 2020). In the same order, the district court granted Melnik's cross-motion for summary judgment, concluding that Defendants violated Melnik's Fourteenth Amendment procedural due process rights. Id . at *3–5. The court concluded that with liability established, the case would proceed to trial limited to the issue of damages. Id . at *7.

Defendants appeal the denial of their request for qualified immunity.

II. Discussion

Denial of qualified immunity is reviewed de novo. George v. Edholm , 752 F.3d 1206, 1214 (9th Cir. 2014).

Generally, an order denying summary judgment is not appealable under 28 U.S.C. § 1291 as the parties must wait for final judgment to appeal. See Johnson v. Jones , 515 U.S. 304, 309, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). However, denials of qualified immunity are appealable immediately under the collateral order doctrine. Plumhoff v. Rickard , 572 U.S. 765, 772, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014). This is because qualified immunity protects government employees from both liability and having to stand trial. Id . If the appeal of the denial of qualified immunity is not permitted until the final judgment, "the immunity from standing trial will have been irretrievably lost." Id. The general rule prohibiting interlocutory appeals still applies to other summary judgment decisions, including the other decision made by the district court in this case. See Johnson , 515 U.S. at 309, 115 S.Ct. 2151. We may not entertain at this time an appeal from the part of the district court's order granting Melnik's motion for summary judgment. It is not a final judgment under Federal Rule of Civil Procedure 54(b), as the issue of damages remains to be resolved in the district court, so we do not have jurisdiction under 28 U.S.C. § 1291 or any exception thereto. See Wilkins v. City of Oakland , 350 F.3d 949, 952 (9th Cir. 2003). As a result, and as the parties acknowledge, this appeal is limited to the issue of qualified immunity, about which there are no factual disputes.

Defendants are entitled to qualified immunity if (1) the alleged conduct did not violate a constitutional right or (2) that right was not clearly established at the time of the alleged violation. See Wood v. Moss , 572 U.S. 744, 757, 134 S.Ct. 2056, 188 L.Ed.2d 1039 (2014). We will discuss each of those two prongs separately. In doing so, we consider the specific facts of this case, as the Supreme Court has made clear that we are not to view the claim at a "high level of generality. ... This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition." Mullenix v. Luna , 577 U.S. 7, 12, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (internal quotation marks and citations omitted).

A. Constitutional Right

The first question we consider is whether Melnik had a constitutional right to access the envelopes used as evidence against him in the prison disciplinary hearing (or copies thereof) in preparing a defense. We conclude that he did.

The Supreme Court established in Wolff v. McDonnell that there are procedural due process rights that a prisoner must be afforded in the context of a prison disciplinary proceeding prior to being deprived of a protected liberty interest. See 418 U.S. 539, 555–72, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In Wolff , a class of prisoners in Nebraska alleged, among other things, that the disciplinary proceedings they were subjected to did not comply with the Due Process Clause of the Fourteenth Amendment. Id. at 542–43, 94 S.Ct. 2963. The procedures included oral notice of the charges, an opportunity to ask questions but not to present evidence or witnesses, and oral recitation of the reasons for the hearing body's finding. Id. at 552–53, 564, 94 S.Ct. 2963. The Court held that one of the constitutional rights afforded a prisoner in a disciplinary hearing is that the "inmate facing disciplinary proceedings should be allowed to ... present documentary evidence in his defense when permitting him to do so w[ould] not be unduly hazardous to institutional safety or correctional goals." Id. at 566, 94 S.Ct. 2963.

If a prisoner must be allowed to present evidence in his defense, it necessarily follows that he must have some right to prepare for that presentation. With no access to the evidence that will be presented against him, a prisoner could neither build a defense nor develop arguments and evidence to contest the allegations at the disciplinary hearing. The Court noted in Wolff that there may be limitations on the prisoner's rights, which we will discuss further below, but in the process the Court made clear that a prisoner's right to present a defense must extend to the preparation of a defense, including compiling evidence: "Prison officials must have the necessary discretion to keep the hearing within reasonable limits and ... to limit access to other inmates to collect statements or to compile other documentary evidence." Wolff , 418 U.S. at 566, 94 S.Ct. 2963 (emphasis added).

Many courts have held that for the right articulated in Wolff to mean anything, a prisoner must also have the right to access evidence that he might use in preparing or presenting his defense. See Lennear v. Wilson , 937 F.3d 257, 269 (4th Cir. 2019) ("[A]n inmate's due process rights related to ... evidence has at least two dimensions: (A) the qualified right of access to such evidence and (B) the qualified right to compel official review of such evidence."); Howard v. U.S. Bureau of Prisons , 487 F.3d 808, 813–14 (10th Cir. 2007) ; Young v. Kann , 926 F.2d 1396, 1400–02 (3rd Cir. 1991) ; Smith v. Mass. Dep't of Corr. , 936 F.2d 1390, 1401 (1st Cir. 1991) ; Meis v. Gunter , 906 F.2d 364, 367 (8th Cir. 1990) ; cf. Francis v. Coughlin , 891 F.2d 43, 47 (2d Cir. 1989) ("[A] prisoner is entitled to be ... informed of the evidence against him ...." (quoting Nieves v. Oswald , 477 F.2d 1109, 1113 (2d Cir. 1973) ); Pace v. Oliver , 634 F.2d 302, 305 (5th Cir. Unit B Jan. 1981) (holding that "an absolute policy that in no instance will prison records be produced" to a prisoner for use in a disciplinary hearing violates procedural due process); Chavis v. Rowe , 643 F.2d 1281, 1286 (7th Cir. 1981) (requiring disclosure of exculpatory evidence to insure "the right of the [inmate] to prepare the best defense he can and bring to the [disciplinary committee's] attention any evidence helpful to his case").

The First Circuit accurately observed that "if an inmate has a circumscribed right to present documentary evidence, logic dictates that he must also have some possible means for obtaining it." Smith , 936 F.2d...