Mitchell v. Dupnik

• Decision Date: 26 January 1996
• Docket Number: 93-16955 and 93-17019,Nos. 93-16517,s. 93-16517
• Citation: 75 F.3d 517
• Parties: 96 Cal. Daily Op. Serv. 545, 96 Daily Journal D.A.R. 883 Anthony Dewayne MITCHELL also known as Mustafa B. Shabazz, Plaintiff-Appellee, v. Clarence DUPNIK, Sheriff of Pima County, Defendant-Appellant. Anthony Dewayne MITCHELL, Plaintiff-Appellee, v. Clarence DUPNIK, Defendant, Donald Robare and Michael Garland, Defendants-Appellants. Anthony Dewayne MITCHELL, Plaintiff-Appellee, v. Clarence DUPNIK, Defendant-Appellant, David Bosman and Richard Fimbres, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 517

75 F.3d 517

96 Cal. Daily Op. Serv. 545, 96 Daily Journal

D.A.R. 883

Anthony Dewayne MITCHELL also known as Mustafa B. Shabazz, Plaintiff-Appellee, v. Clarence DUPNIK, Sheriff of Pima County, Defendant-Appellant.

Anthony Dewayne MITCHELL, Plaintiff-Appellee, v. Clarence DUPNIK, Defendant, Donald Robare and Michael Garland, Defendants-Appellants.

Anthony Dewayne MITCHELL, Plaintiff-Appellee, v. Clarence DUPNIK, Defendant-Appellant, David Bosman and Richard Fimbres, Defendants-Appellants.

Nos. 93-16517, 93-16955 and 93-17019.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 14, 1995.

Filed Sept. 28, 1995.

Opinion Withdrawn Jan. 26, 1996.

Opinion Filed Jan. 26, 1996.

Mustafa B. Shabazz, Arizona State Penitentiary, Florence, Arizona, in pro. per.

Gerald Maltz, Miller, Pitt and McAnally, Tucson, Arizona, for defendants-appellants.

Gerard M. Guerin, Deputy County Attorney, Tucson, Arizona, for defendants-appellants.

ORDER

The motion of Shabazz to file a late response to the County defendants' petition for rehearing is GRANTED. Shabazz's response is ordered filed.

Shabazz's motion to strike the affidavit appended to the County defendants' petition for rehearing is GRANTED. The affidavit is stricken.

The opinion of this court filed on September 28, 1995, and reported at 67 F.3d 216 is withdrawn, and the attached opinion is substituted therefor.

With the filing of this opinion, the panel has unanimously voted to deny the petition of the County defendants for rehearing and to Appeals from the United States District Court for the District of Arizona.

                reject their suggestion for rehearing en banc.   The petition for rehearing of the County defendants is denied.   The County defendants' suggestion for rehearing en banc has been circulated to the full court and no member of the court has called for a vote to rehear the case en banc.   The County defendants suggestion for rehearing en banc is rejected
                

Before: CHOY, CANBY, and T.G. NELSON, Circuit Judges.

OPINION

CANBY, Circuit Judge:

Pima County Sheriff Clarence Dupnik and several of his deputies appeal a series of district court judgments and orders in favor of prisoner Mustafa B. Shabazz, formerly known as Anthony D. Mitchell, resulting from multiple actions that Shabazz had brought under 42 U.S.C. § 1983. We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

I. Appeal No. 93-16955

Shabazz was held in the Pima County Adult Correction Center ("the Jail") from February 1991, to September 1992, during the pendency of his trial on criminal charges not at issue here. Shabazz was apparently a somewhat disruptive prisoner, and as a result he spent significant disciplinary time in the "administration segregation" wing of the Jail. Inmates in administrative segregation are subject to substantially greater restrictions than is the general Jail population.

While at the Jail, Shabazz instituted two actions under § 1983 that are the subject of these appeals. His first action alleged numerous violations of his constitutional rights. The district court later dismissed all but two of the claims of this first lawsuit.

The first of those surviving claims alleged that Donald Robare, a corrections officer at the Jail, violated the Due Process Clause of the Fourteenth Amendment by failing to observe several required procedural safeguards while conducting three separate disciplinary proceedings against Shabazz. Specifically, the complaint alleged that: (1) Robare failed to tape record at least one of the proceedings, in violation of published Jail policy; (2) Robare refused to allow Shabazz to call witnesses at the proceedings, again in contravention of Jail policy; and (3) Robare did not deliver to Shabazz written copies of the findings in each proceeding, which was required by Jail policy. Shabazz contended that the alleged violations resulted in his unjustified assignment to nineteen days of segregation.

Robare moved to dismiss the claim, but the court determined that most or all issues were disputed, and instead ordered the Jail to re-conduct the three hearings with the necessary safeguards in place and to resentence Shabazz accordingly. After rehearing, Shabazz received seven fewer days in segregation than in his original sentence. Because Shabazz had already served the longer sentence, no additional segregation was warranted. Upon Shabazz's motion, the district court granted summary judgment on the issue of Robare's liability and set trial for damages.

Shabazz's second surviving claim from this first action alleged that Michael Garland, also a corrections officer at the Jail, interfered with a constitutionally protected liberty interest by searching Shabazz's legal papers while he was not present, in knowing violation of published Jail policy. Upon Shabazz's motion, the court also granted summary judgment against Garland on the issue of liability and set a trial to determine damages.

After separate trials, the district court entered judgments awarding Shabazz $1000 in damages against Robare and $550 in damages against Garland, in their individual capacities.

II. Appeal No. 93-17019

While still at the Jail, Shabazz filed a second action under section 1983 against Sheriff Dupnik, Major David Bosman, the Jail's corrections commander, Richard Fimbres, the Supervisor of Discipline at the Jail, and six other sheriff's deputies. The complaint alleged nine separate constitutional violations, all dealing with the disciplinary system in the administrative segregation wing. On defendants' motion, the court ultimately dismissed all but two claims, against Dupnik, Bosman and Fimbres collectively ("the Sheriff").

Shabazz's first claim in this second § 1983 action alleged that the Sheriff's de facto policy denying inmates the right to call and examine witnesses during their disciplinary hearings violated due process. In his second claim, Shabazz alleged that the Sheriff deprived him of a protected liberty interest without due process by failing to provide him, after his hearings were completed, with copies of the disciplinary committee's findings indicating whether an impartial reviewing staff member concurred in the findings.

Shabazz moved for and was granted summary judgment on the issue of liability as to all three defendants on both claims in this second action. After a bench trial on the issue of damages accruing from the first claim, the district court awarded Shabazz $4,500 in compensatory damages and $100,000 in punitive damages against the three defendants in their official capacities. ¹ On the second claim, the court awarded Shabazz $250 in compensatory damages against each defendant in his individual capacity.

III. Appeal No. 93-16517

Shabazz prosecuted the above two § 1983 actions in propria persona, and thus required use of the Jail's law library facilities, including its reporters and its photocopying services. During the substantial portions of his pretrial detention that Shabazz spent in administrative segregation, he was not permitted to leave his cell to spend time in the Jail's law library.

The library serves segregated inmates through a paging system in which the inmates can order up to five legal books twice per week. The paging system is not rigid in that, under "special circumstances," inmates may request and receive in excess of five books at a time. Additionally, a library staff person is available on a limited basis to assist with an inmate's legal research.

Shabazz moved during the course of his actions to compel the Jail to provide greater access to legal materials, photocopying and carbon paper. On July 15, 1992, the district court denied Shabazz's motion, but issued an injunction ordering the Jail to publish its legal access policy, including the process by which it evaluated requests for exception to the paging system limits for segregated inmates. Dupnik complied in September of 1992. Also in September, the state moved the now-convicted Shabazz from the Jail to Florence State Correctional Facility to serve his criminal sentence.

On October 6, 1992, the district court issued another order finding the Jail's then-recently published policy to be constitutionally inadequate. The policy did not explain the factors that Jail authorities would consider in determining whether to grant exceptions to book and delivery-time limits for segregated inmates. The court again ordered the Jail to publish a satisfactory policy. ² After an evidentiary hearing, the district court on March 17, 1993, issued its final order finding the Jail's second attempt at formulating a library access policy to be inadequate. The court cured the inadequacy by writing the Jail's "exceptions" policy itself in an injunction.

ANALYSIS

We review de novo the district court's grant of summary judgment. Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. Because there is an overlap of the claims in Shabazz's two actions, we address the issues on appeal by subject matter category, deviating from the order in which Shabazz brought the claims.

I. The Search of Shabazz's Legal Papers.

Shabazz contends that Garland violated his constitutional rights by refusing to allow Shabazz to be present while his cell, including his legal materials, was searched. An inmate ordinarily has no reasonable expectation of privacy as to his jail cell or his possessions within it. Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 3199-3200, 82 L.Ed.2d 393 (1984). Thus, even a pretrial detainee has no Fourth Amendment right to be present during a search of his cell. Bell v. Wolfish, 441 U.S. 520, 555-57, 99 S.Ct. 1861, 1882-83, 60 L.Ed.2d 447 (1979). Shabazz relies, however, on the proposition...