Serrano v. Francis

• Decision Date: 26 September 2003
• Docket Number: No. 01-57036.,01-57036.
• Citation: 345 F.3d 1071
• Parties: Onofre T. SERRANO, Plaintiff-Appellant, v. S.W. FRANCIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

345 F.3d 1071

Onofre T. SERRANO, Plaintiff-Appellant, v. S.W. FRANCIS, Defendant-Appellee.

No. 01-57036.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2003 — Pasadena, California.

Filed September 26, 2003.

COPYRIGHT MATERIAL OMITTED

David E. Azar (argued), Los Angeles, California, for the plaintiff-appellant.

Bill Lockyer, Attorney General of the State of California (on brief), Robert R. Anderson, Chief Assistant Attorney General (on brief), Paul D. Gifford, Senior Assistant Attorney General (on brief), Barbara Spiegel, Supervising Deputy Attorney General (on brief), and John F. Bazan, Deputy Attorney General (argued), Los Angeles, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Harry L. Hupp, District Judge, Presiding. D.C. No. CV-96-8446 HLH.

Before: Ruggero J. Aldisert,^* Richard C. Tallman, and Johnnie B. Rawlinson, Circuit Judges.

OPINION

ALDISERT, Circuit Judge.

Onofre Tommy Serrano, a wheelchair-bound black¹ prison inmate, appeals the district court's adverse decisions in his 42 U.S.C. § 1983 action alleging that prison officials denied him due process and equal protection by refusing to allow him to present live witness testimony during a prison disciplinary hearing. First, we must decide whether the district court erred in dismissing Serrano's due process claim without leave to amend when it held that he could not, as a matter of law, plead a protected liberty interest—namely, the freedom from administrative segregation — that was affected by the denial of due process. Second, we must determine whether the district court improperly granted summary judgment on Serrano's equal protection claim in light of evidence presented as to whether a prison officer's decision to deny the requested witness testimony during his disciplinary hearing was racially motivated. In so doing, we hold that Officer S.W. Francis is entitled to qualified immunity as to the due process claim, but conclude that the district court erred in granting summary judgment on the equal protection claim because Serrano raised a genuine issue of material fact as to Francis' motives.

I.

A.

On August 20, 1995, Appellant Onofre Serrano and other inmates at the California Institute for Men in Chino, California, were returning to their cells as part of the afternoon lockup. Serrano, who is partially paralyzed and utilizes a wheelchair, came in last from the yard with three other wheelchair-bound inmates.

Accounts differ as to what happened next. Correctional Officer Jones maintains that Serrano disobeyed his order to lockup and to surrender what appeared to be contraband on Serrano's lap. Officer Jones claims that when he attempted to retrieve the alleged contraband by physical force, Serrano struck him with a closed fist, and that Serrano fell out of his wheelchair during the ensuing tussle. For his part, Serrano maintains that the alleged contraband was, in reality, non-contraband cookies and cake from the prison canteen and that he merely covered his canteen items with his body to prevent Officer Jones from taking them. In addition to asserting that he could not have punched Officer Jones with a closed fist because he had an injured finger in a splint, he also claims that Officer Jones lifted him out of his wheelchair by his T-shirt, forcing them both to the ground.

As a result of the incident, Officer Jones filed a CDC-115 form charging Serrano with battery on staff. Because attacking a correctional officer is a serious, level "B" offense, Serrano was immediately placed in administrative segregation and sent to the Special Housing Unit ("SHU") pending adjudication of the charge. The SHU was not handicapped-accessible, and prison officials did not permit Serrano to have his wheelchair in the cell. Serrano alleges that he had to crawl into his bunk, hoist himself onto the toilet by the toilet seat, avoid the shower because the facility lacked an appropriate shower seat, and sit idle for outdoor exercise because the outdoor yard was not handicapped-accessible. He also alleges that the SHU was infested with cockroaches and vermin.

Because he was in administrative segregation and thus unable to conduct his own investigation, Serrano was assigned an investigative employee, Officer Padilla, who would take brief statements from witnesses to the altercation. Padilla's report included statements by four inmates, two of whom were mentioned in Officer Jones' initial report. Serrano believed that he would be able to call the witnesses during his hearing.

At the September 17, 1995 hearing on the CDC-115, Serrano asked if he could present live testimony from the four inmates and from Padilla. Appellee Correctional Lieutenant S.W. Francis, however, permitted live testimony only from Serrano and Officer Jones. Serrano alleges that Francis told him that he was "not going to rally your Crip[ple] buddies for this hearing."² Appellee's SER Ex. 18 at 51 ¶ 19. According to Serrano, when Serrano asserted his right to call and have witnesses present live testimony, Francis scoffed at him and noted that he had their testimony in the form of Officer Padilla's report. After Francis began to read the allegations from the CDC-115, Serrano — who is black — allegedly said, "Come on, I wouldn't think of hitting a white officer, do you think that I would do something that stupid, especially while I'm in a wheelchair? I plead not guilty." Appellee's SER Ex. 18 at 52 ¶ 17. Francis allegedly replied, "I don't know how black people think, and I'll never know. I don't know why a guy would stab his wife and her friend to death."³ Id.

After Serrano offered testimony about the altercation, Officer Jones gave his version of the events. Instead of allowing Serrano to question Officer Jones directly, Francis served as the intermediary. Francis would read Serrano's questions from Serrano's prepared notes and did not permit him to ask follow-up questions. After Serrano objected to the hearing as unconstitutional, Francis allegedly responded that "he was treating [Serrano] like all the rest ... and that [Serrano] was `not O.J. Simpson or Johnnie Cochran.'" Appellee's SER Ex. 18 at 54 ¶ 19. Relying on the live testimony of Serrano and Officer Jones and Padilla's written investigative report, Francis found Serrano guilty of the battery charge, assessing him a 12-month SHU term⁴ and a 150 day credit forfeiture. Francis offered no written explanation of why he refused Serrano's demand to call witnesses to give live testimony.

Serrano appealed the disciplinary findings and sanction. On June 21, 1996, Serrano's appeal was partially granted because Francis had failed to provide a written explanation of why he refused Serrano's request for live witness testimony, and the institution was ordered to vacate the original CDC-115 disposition and reissue and rehear the disciplinary charge.

Serrano had a new hearing on November 2, 1996. Relying on Serrano's testimony and documents and written testimony from the first hearing, a new hearing examiner found Serrano guilty of the lesser offense of resisting staff, a class "D" offense. The hearing officer concluded that Serrano could not have punched Jones, as alleged, because Serrano had an injured finger in a splint at the time of the altercation. Accordingly, the hearing officer assessed a 90-day loss of privileges.

Serrano appealed the new disciplinary decision. The appeal was ultimately granted and the CDC-115 misconduct charge dismissed because the second hearing was not held within court-mandated time limits. The winning appeal restored his credits and his classification score to its level before the altercation.

B.

On December 4, 1996, Serrano filed a pro se complaint under 42 U.S.C. § 1983 against Francis, alleging due process and equal protection claims. The case was referred to a magistrate judge on December 11, 1996, who dismissed the case with leave to amend on December 23, 1996. Serrano filed his First Amended Complaint on January 21, 1997, which the magistrate judge dismissed with leave to amend on December 12, 1997.

On March 17, 1997, Serrano filed his Second Amended Complaint. On August 8, 1997, Francis moved to dismiss, and Serrano filed his opposition on September 4, 1997. On October 9, 1997, the magistrate judge issued a Report and Recommendation suggesting: (a) that Serrano's due process claim be dismissed without leave to amend because he could not establish a protected liberty interest in not being placed in administrative segregation, in his classification status or in his loss of privileges; and (b) that Serrano's equal protection claim be dismissed with leave to amend. On November 12, 1997, the district court adopted in full the magistrate judge's Report and Recommendation.

Serrano timely filed his Third Amended Complaint on December 11, 1997. Francis moved to dismiss on April 15, 1998, and Serrano filed his opposition on May 28, 1998, treating Francis' motion as one alternatively to dismiss or for summary judgment. The magistrate judge issued a Report and Recommendation on August 21, 1998, dismissing with prejudice Serrano's claim that Francis discriminated against him under a blanket policy of not allowing inmates in administrative segregation to call witnesses at disciplinary hearings, but permitting Serrano to file an amended complaint that Francis discriminated against him on the basis of race, physical disability, and/or his status as a jailhouse lawyer. The district court adopted the magistrate's Report and Recommendation on October 6, 1998, emphasizing in a minute order that Serrano could file an amended complaint on that "one limited issue."

Serrano filed his Fourth Amended Complaint on October 12, 1998. After a period of discovery, Francis filed a motion for summary judgment on August 12, 1999. Serrano countered with his own motion for partial summary judgment on August 24, 1999, and he...