Smith v. Sumner

• Decision Date: 01 June 1993
• Docket Number: No. 88-1575,88-1575
• Citation: 994 F.2d 1401
• Parties: Edward Leroy SMITH, Plaintiff-Appellant, v. George SUMNER; George Deeds; John Ignacio, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1401

994 F.2d 1401

Edward Leroy SMITH, Plaintiff-Appellant, v. George SUMNER; George Deeds; John Ignacio, Defendants-Appellees.

No. 88-1575.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 11, 1992.

Memorandum Filed June 30, 1992.

Memorandum Withdrawn June 1, 1993.

Decided June 1, 1993.

Kenneth James McKenna, Reno, NV, for plaintiff-appellant.

John E. Simmons, Deputy Atty. Gen., Carson City, NV, for defendants-appellees.

Appeal from the United States District Court for the District of Nevada, Howard D. McKibben, District Judge, Presiding.

ORDER

The memorandum disposition filed June 30, 1992, is withdrawn and the attached opinion, authored by Judge Hall, is filed in its stead.

Before: ALARCON, HALL and KLEINFELD, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Appellant Edward Smith, a Nevada state prisoner, filed an action under 42 U.S.C. § 1983 alleging violations of his constitutional rights resulting from unreasonable restrictions on visitation, denial of his request for a privately retained attorney in a disciplinary action, denial of medical treatment, and denial of hobbycraft privileges. Smith alleges that prison officials violated his rights in retaliation for his refusal to plead guilty to a charged disciplinary infraction. After a jury trial, the district court entered judgment for Appellees on all issues.

On appeal, Smith challenges (1) the district court's refusal to give his offered instruction on right to counsel, and (2) the sufficiency of the evidence. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291, and we affirm.

I. FACTS

In May 1982, Appellant and other inmates were caught building a helicopter. Appellant was charged with unauthorized use of institutional supplies, tools and machinery (a minor violation), and possession of contraband (a major violation). ¹ Appellant asked if he could hire an attorney for the disciplinary hearing. Prison officials refused, stating that prison regulations did not allow private representation, but that he could be represented by an inmate law clerk. At the disciplinary hearing, Appellant was found not guilty of the major violation and guilty of the minor violation. ²

With respect to visitation, Appellant alleges that prison officials unreasonably delayed and/or denied visits from his son, daughter-in-law and mother. Appellant states that his son filed a visitation approval form in August of 1982, but that it was not approved until December of 1982. Appellant also states that his son was denied a visit on January 3, 1983, even though the visit was approved. According to Appellant, his son was also denied a visit in April 1983 because the application that was filed in February 1983 was not approved until November 1983. Even after the November 1983 approval, Appellant contends that his son was denied visits through 1986.

Appellant's son testified that he did not visit his father on January 3, 1983 because he (the son) was released from prison that day and wanted to go home. The son also testified that prison officials told him he could not visit in April 1983 because he had to wait six months after his release from prison. The son attempted to visit "a couple of times" in 1983, but could not remember why, on one of those occasions, he was not permitted to visit. The son does not recall if he filled out more than one application for visitation. Finally, the son testified that he did not visit from 1984 to 1986 because he did not have any money.

Concerning his daughter-in-law, Appellant states that four attempted visits never succeeded: one in October 1982, one in April 1983, one in August 1983, and one in September 1986. Appellant admitted on cross examination that his daughter-in-law missed the October 1982 visit because her car had broken down. Moreover, prison regulations forbid non-family members from visiting more than one inmate, and the daughter-in-law had been visiting her husband (Appellant's son). Under prison regulations, a daughter-in-law is not considered a "family member." Appellant admitted that in the application form filed in September 1982, he may not have used his daughter-in-law's correct name, and that he did not inform prison officials that she was also visiting his son.

Appellant testified that the daughter-in-law was refused a visit in April 1983 because she was still on the list as visiting her husband, even though her husband had been released three months prior to the attempted visit. Although it is unclear whether Appellant filled out the proper application forms for this visit, the daughter-in-law testified that she had not received written approval for this visit.

The daughter-in-law testified that she was denied visitation in September 1986 because she was wearing blue jeans. She received a letter approving her visits on May 27, 1983. That letter indicated that blue jeans were not permitted. A prison official testified that this policy had been in effect at the facility where the 1986 visit was to take place for at least nine months to one year prior to the September 1986 visit. The same official permitted the son to change his clothes and then enter the facility, and suggested that the daughter-in-law go to K-Mart to purchase suitable clothing. She decided against it, however, since it would be a short visit.

Appellant requested a visit from his mother in 1984, after he had been transferred to a different facility. He alleges that she was denied three visitations from 1984 to approximately 1986. Because he refused to fill out new approval forms, however, his mother was not permitted to visit. Appellant admitted that a prison official told him that if he filled out a form, his mother would be able to visit immediately. Correctional Officer Carl Swain testified that he explained the new application procedures to Appellant. Appellant admitted that he refused to sign the new forms.

The jury trial took place on November 12 and 13, 1987. In the pretrial order, the parties stipulated to several facts, including the key fact that "pursuant to the consent decree executed in conjunction with the settlement of the class action in Craig v. Hocker, as a matter of contract law, prisoners at the [Nevada State Prison] are entitled to the representation of an attorney for serious disciplinary infractions provided the prisoner retains such representation at his own expense." After the close of the evidence, Appellant's counsel requested a jury instruction concerning the right to counsel in prison disciplinary hearings. ³ The request was based on the district court's ruling in Craig v. Hocker, 405 F.Supp. 656 (D.Nev.1975), and the subsequent consent decree settling that litigation. The district court refused to give the instruction, reasoning that there is no constitutional right to counsel in prison disciplinary hearings, and that the consent decree did not require prison officials to permit Appellant to bring in privately retained counsel. Appellant did not move for a directed verdict or judgment notwithstanding the verdict.

II. STANDARD OF REVIEW

A party is entitled to an instruction on his theory of the case provided that it accurately states the law and is supported by the evidence. Los Angeles Memorial Coliseum Comm'n v. N.F.L., 726 F.2d 1381, 1398 (9th Cir.), cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). This circuit has not decided whether a district court's denial of a proposed jury instruction is reviewed de novo or for an abuse of discretion. United States v. Streit, 962 F.2d 894, 897 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 431, 121 L.Ed.2d 352 (1992); United States v. Zuniga, 989 F.2d 1109 (9th Cir.1993). It is clear, however, that failure to give an instruction on a party's theory of the case is reversible error if "the theory is legally sound and evidence in the case makes it applicable." United States v. Scott, 789 F.2d 795, 797 (9th Cir.1986). The particular issue confronting us in this case is whether Appellant's proposed instruction was legally sound. We will not resolve the question whether the district court's denial is subject to review de novo or for an abuse of discretion because this case does not turn on the standard we apply. Even under a more searching de novo review, we find that the district court did not err.

With respect to sufficiency of the evidence, if a party has not moved for a directed verdict, our "inquiry is limited to whether there was any evidence to support the jury's verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a 'manifest miscarriage of justice.' " Herrington v. Sonoma County, 834 F.2d 1488, 1500 (9th Cir.1987) (emphasis added), cert. denied, 489 U.S. 1090, 109 S.Ct. 1557, 103 L.Ed.2d 860 (1989).

III. DISCUSSION

A. Jury Instruction

Appellant first argues that the district court erred by refusing to give his proposed jury instruction on the right to counsel. At the close of the evidence, Appellant's counsel submitted the following jury instruction regarding the right to counsel in prison disciplinary hearings:

Persons confined in prison have the right to due process in prison disciplinary [sic] guaranteed under the Fifth Amendment to the Constitution of the United States made applicable to the State through the Due Process Clause of the Fourteenth Amendment.

Although the Constitution of the United States does not guarantee a person the right to representation of an attorney in a prison disciplinary hearing, this court has previously determined that prisoners confined in the Nevada State Prison are entitled to the representation of an attorney in a prison disciplinary hearing involving a violation of prison rules which may also be punishable by state authorities, provided the attorney is retained by the prisoner.

The decision of this court that prisoners confined in the Nevada State Prison are entitled to the representation...