Nev. Dep't of Corr. v. Greene

• Decision Date: 11 July 2011
• Docket Number: 09–15753.,Nos. 08–17091,s. 08–17091
• Citation: 11 Cal. Daily Op. Serv. 10354,648 F.3d 1014,2011 Daily Journal D.A.R. 12383
• Parties: NEVADA DEPARTMENT OF CORRECTIONS, Plaintiff–Appellee,v.Travers A. GREENE; Paul Browning, Defendants–Appellants,andRussell David Cohen; Jimmy Earl Downs, Defendants.Nevada Department of Corrections, Plaintiff–Appellee,v.Jimmy Earl Downs, Defendant–Appellant,andRussell David Cohen; Travers A. Greene; Paul Browning, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

648 F.3d 1014
11 Cal. Daily Op. Serv. 10,354
2011 Daily Journal D.A.R. 12,383

NEVADA DEPARTMENT OF CORRECTIONS, Plaintiff–Appellee,
v.
Travers A. GREENE; Paul Browning, Defendants–Appellants,andRussell David Cohen; Jimmy Earl Downs, Defendants.Nevada Department of Corrections, Plaintiff–Appellee,
v.
Jimmy Earl Downs, Defendant–Appellant,andRussell David Cohen; Travers A. Greene; Paul Browning, Defendants.

Nos. 08–17091

09–15753.

United States Court of Appeals, Ninth Circuit.

Submitted July 11, 2011.*Filed Aug. 15, 2011.

[648 F.3d 1017]

Travers A. Greene and Paul Browning, Pro Se, Ely, NV, Jimmy Earl Downs, Pro Se, Indian Springs, NV, for the defendants-appellants.Alicia L. Lerud, Deputy Attorney General, Carson City, NV, for the plaintiff-appellee.Appeal from the United States District Court for the District of Nevada, Larry R. Hicks, District Judge, Presiding. D.C. No. 3:07–cv–00266–LRH–RAM.Before: PROCTER HUG, JR., BARRY G. SILVERMAN, and SUSAN P. GRABER, Circuit Judges.OPINION HUG, Senior Circuit Judge.

This consolidated appeal asks us to consider the constitutionality of the Nevada Department of Corrections' (“NDOC”) policy prohibiting inmates' personal possession of typewriters. NDOC inmates, Travers A. Greene, Paul Browning, and Jimmy Earl Downs, appeal pro se the district court's grant of summary judgment in favor of the NDOC. We conclude that the ban does not violate the inmates' constitutional rights and, accordingly, affirm the decision of the district court.

I. Background

In December 2006, Douglas Potter, an inmate at Ely State Prison (“ESP”), murdered another inmate in his cell. The local sheriff's department investigated the crime. The murder weapon was determined to be a roller pin from an inmate-owned typewriter. In March 2007, an inmate attempted to stab a correctional officer. Once again, the weapon was a piece of an inmate-owned typewriter.

Shortly after these attacks, the NDOC enacted a ban on inmate possession of typewriters at ESP. In May 2007, the NDOC made the ban system-wide, and notified all inmates that it would be adding typewriters to the list of items prohibited from possession. Inmates who possessed typewriters had the option of shipping the typewriter out of the prison, donating the typewriter to charity, or having the typewriter destroyed.

In light of multiple lawsuits concerning the validity of the ban, the NDOC sought declaratory relief as to whether it had the legal right to ban typewriter possession and whether the ban is constitutional. The NDOC filed suit against inmate Russell Cohen. Downs filed a motion to intervene. Greene and Browning, inmates at ESP, also filed motions to intervene. The district court granted those motions.

On cross-motions for summary judgment, the district court ruled in favor of the NDOC, holding that it had the right to declare typewriters unauthorized property and that the ban is constitutional. Greene and Browning appealed. Downs filed post-judgment motions. He then withdrew

[648 F.3d 1018]

the motions and filed the instant appeal. This court consolidated the appeals.II. Jurisdiction

As the district court's ruling on summary judgment constituted a final decision, we have jurisdiction pursuant to 28 U.S.C. § 1291.

III. Standards of Review

We review de novo the district court's grant of summary judgment. Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir.2011). The decision to grant or deny declaratory relief is reviewed de novo. Ablang v. Reno, 52 F.3d 801, 803 (9th Cir.1995). “The district court's exclusion of evidence in a summary judgment motion is reviewed for an abuse of discretion.” Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir.2002). “[W]e must affirm the district court unless its evidentiary ruling was manifestly erroneous and prejudicial.” Id. We review for abuse of discretion a district court's decision not to permit further discovery. Ashton–Tate v. Ross, 916 F.2d 516, 519 (9th Cir.1990).

IV. Analysis

Although we consolidated the appeals, appellants have briefed the issues separately. We address each appeal separately as well.

A. Greene and Browning Appeal

Greene and Browning argue that the typewriter ban was enacted with unconstitutional motive and in retaliation for inmate lawsuits over prison conditions. A viable claim for retaliation requires, in part, that an inmate demonstrate that the prison officials' adverse action does not reasonably advance a legitimate correctional goal. See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir.2005). Institutional security is a legitimate correctional goal. Morrison v. Hall, 261 F.3d 896, 907 (9th Cir.2001). This case does not present a factual issue concerning whether the ban reasonably advances a legitimate correctional goal. The...