Nigro v. Christensen et al
MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Defendants' Motion for Summary Judgment (Dkt. 20 ) is GRANTED in part as to the "sex offender label" due process claim. Plaintiff's Motion for Clarification (Dkt. 26 ) is GRANTE D in part, to the extent that Plaintiff and Defendants will be given further opportunity to brief the Sandin and Toussaint I issues and provide supporting exhibits. Defendant's supplement shall be due 21 days after entry of this Order. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SHANE VINCENT NIGRO,
Case No. 1:19-cv-00441-DCN
JAY CHRISTENSEN, BRIAN
KLINGENSMITH, JACK FRASER,
MATHEW LYTLE, JEFF ZMUDA,
and SERGEANT BORG [CZUDAK],
Pending before the Court in Plaintiff Shane Vincent Nigro’s prisoner civil rights
action are Defendants’ Motion for Summary Judgment and Plaintiff’s Motion for
Clarification. Dkts. 20, 26. Having reviewed the parties’ filings and the record in this
matter, the Court finds that oral argument is unnecessary. Therefore, the Court will decide
this matter on the written motions, briefs, and record without oral argument. D. Idaho L.
Civ. R. 7.1(d).
Defendants assert that Plaintiff failed to exhaust his Idaho Department of Correction
(IDOC) administrative remedies for the due process claims upon which he was authorized
to proceed. They alternatively argue that Plaintiff has failed to state a claim upon which
relief can be granted. For the reasons that follow, the Court enters the following Order
granting the Motion for Summary Judgment in part on the state law liberty interest claim
MEMORANDUM DECISION AND ORDER - 1
and deferring ruling in part, pending further briefing, on the atypical and significant
Plaintiff asserts that Defendants violated his constitutional right to due process
under the Fourteenth Amendment. Plaintiff alleges that, on May 7, 2018, Defendants
wrongfully labeled him a “sex offender,” based on a disciplinary offense report (DOR)
charge for which he asserts he was entitled to, but denied, due process protections. Plaintiff
asserts that he was not allowed to present evidence in his defense, call witnesses, pay for
and take a polygraph, view statements of the purported victim, or know any of the evidence
used to find him guilty. He also asserts that he suffered atypical and significant hardships
in administrative segregation after being found guilty.
STANDARD OF LAW
1. Summary Judgment
Summary judgment is appropriate when a party can show that, as to a particular
claim or defense, “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). Rather, there must be a genuine dispute as to a material fact essential to an
important element of the cause of action or defense to survive summary judgment. Disputes
over facts that are not material to the resolution of the motion will not preclude summary
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judgment. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th
The Court does not decide the credibility of affiants or weigh the evidence set forth
by the non-moving party. Anderson, 477 U.S. at 255. That means a party’s or witness’s
sworn statement must be taken as true for purposes of summary judgment. The Court must
also draw all reasonable inferences from circumstantial evidence in a light most favorable
to the non-moving party, T.W. Elec. Serv., Inc., 809 F.2d at 630-31, but it is not required
to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849
F.2d 1205, 1207-088 (9th Cir. 1988) (observing that Matsushita Electric Industrial
Company v. Zenith Radio Corporation, 475 U.S. 574 (1986), “authorizes an inquiry on
summary judgment into the ‘implausibility’ of inferences from circumstantial evidence,
[but] not an inquiry into the credibility of direct evidence”).
The moving party is entitled to summary judgment if that party shows that each
material fact cannot be disputed. To show that the material facts are not in dispute, a party
may cite to particular parts of materials in the record, or show that the adverse party is
unable to produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A) &
(B). The Court must consider “the cited materials,” but it may also consider “other
materials in the record.” Fed. R. Civ. P. 56(c)(3).
If the moving party meets its initial responsibility, then the burden shifts to the
opposing party to establish that a genuine dispute as to any material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The existence
of a scintilla of evidence in support of the non-moving party’s position is insufficient.
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Rather, “there must be evidence on which the jury could reasonably find for the [nonmoving party].” Anderson, 477 U.S. at 252.
“If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact,” or if a litigant needs more time to obtain declarations or
do discovery, the Court may “give an opportunity to properly support or address the fact,”
“defer considering the motion nor deny it,” or “issue any other appropriate order.” Fed. R.
Civ. P. 56(d)-(e).
2. Procedural Due Process
The Due Process Clause of the Fourteenth Amendment prohibits the government
from depriving an individual of a liberty or property interest without following the proper
procedures for doing so. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 558 66 (1974).1 To
succeed on a procedural due process claim, a prisoner must establish (1) that he possessed
a liberty interest and (2) that the defendants deprived him of that interest as a result of
insufficient process. Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
State-Created Liberty Interest
The United States Supreme Court has held that protected liberty interests may arise
from state laws. Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989). For
example, in Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997), the United States Court
The minimum procedural protections prison officials must provide a prisoner facing disciplinary charges
are: (1) written notice of the charges before the disciplinary hearing; (2) at least 24 hours to allow the
prisoner to prepare for the hearing; (3) the right to call witnesses and present documentary evidence, unless
doing so would be unduly hazardous to institutional safety or correctional goals; (4) assistance from another
prisoner or staff person where the issues presented are complex or the prisoner is illiterate; and (5) a written
statement by the factfinders detailing the evidence relied upon and the reasons for the disciplinary action;
See id. at 564-70.
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of Appeals for the Ninth Circuit held that a liberty interest arose from the following state
Hawaii’s statute creating the [Sex Offender Treatment
Program] authorizes correctional officials to classify certain
inmates as sex offenders without a hearing and mandates their
completion of an extensive treatment program, which includes
their confession to past sex offenses, as a precondition to parole
Id. at 828-29. In particular, the Court of Appeals identified the liberty interest at stake in
Neal as “the stigmatizing consequences of the attachment of the ‘sex offender’ label
coupled with the subjection of the targeted inmate to a mandatory treatment program whose
successful completion is a precondition for parole eligibility.” Id. at 830. The Ninth Circuit
Court held that this combination of government-imposed deprivations of liberty requires
procedural protections. Id. at 830.
Atypical and Significant Hardship
Typically, prison segregation housing “in and of itself does not implicate a protected
liberty interest.” Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (collecting cases).
Rather, a liberty interest arises only if the conditions of segregation impose an “atypical
and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 484.
To determine whether segregation poses an atypical and significant hardship, courts
must conduct a “case by case, fact by fact” analysis of the “condition or combination of
conditions or factors” that the plaintiff experienced. Serrano, 345 F.3d at 1078 (citing
Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996)). That analysis includes:
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(1) if disciplinary, whether that segregation was essentially the same as discretionary forms
of segregation, such as administrative segregation; (2) whether a comparison between the
plaintiff’s confinement and conditions in the general population showed that the plaintiff
suffered no “major disruption in his environment”; and (3) whether the length of the
plaintiff's sentence was affected. Sandin, 515 U.S. at 486-87; see also Resnick v. Hayes,
213 F.3d 443, 448 (9th Cir. 2000) (clarifying that, to prevail, a prisoner must establish a
liberty interest, showing “that his confinement, whether administrative or disciplinary,
presented “the type of atypical, significant deprivation [that] might conceivably create a
liberty interest” (emphasis added).
In Wilkinson v. Austin, 545 U.S. 209 (2005), the United States Supreme Court
identified a set of conditions that met the “atypical and significant hardship” standard:
For an inmate placed in OSP, almost all human contact
is prohibited, even to the point that conversation is not
permitted from cell to cell; the light, though it may be dimmed,
is on for 24 hours; exercise is for 1 hour per day, but only in a
small indoor room. Save perhaps for the especially severe
limitations on all human contact, these conditions likely would
apply to most solitary confinement facilities, but here there are
two added components. First is the duration. Unlike the 30–
day placement in Sandin, placement at OSP is indefinite and,
after an initial 30–day review, is reviewed just annually.
Second is that placement disqualifies an otherwise eligible
inmate for parole consideration. While any of these conditions
standing alone might not be sufficient to create a liberty
interest, taken together they impose an atypical and significant
hardship within the correctional context. It follows that
respondents have a liberty interest in avoiding assignment to
Id. at 223-24 (citations omitted).
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It is now fifteen years post-Wilkinson v. Austin. In reviewing a claim “case by case”
and “fact by fact,” courts must remain mindful of modern-day research documenting the
serious effects solitary confinement can have on prisoners. In 2018, Dr. Craig Haney,
Distinguished Professor of Psychology, University of California, Santa Cruz, observed:
Largely because of the robustness and theoretical underpinnings of
the data, numerous scientific and professional organizations have
reached a broad consensus about the damaging effects of solitary
confinement.... The American Psychological Association (2016, p. 1),
the world’s largest professional association of psychologists, asserted
that “solitary confinement is associated with severe harm to physical
and mental health among both youth and adults, including: increased
risk of self-mutilation, and suicidal ideation; greater anxiety,
depression, sleep disturbance, paranoia, and aggression; exacerbation
of the onset of pre-existing mental illness and trauma symptoms; [and]
increased risk of cardiovascular problems.”
Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique,
47 Crime & Just. 365, 368 (2018).
Though no recent United States Supreme Court opinion has squarely addressed
solitary confinement, several Justices have written concerning it. See Apodaca v. Raemisch,
139 S.Ct. 5 (2018) (Sotomayor, J., issuing a statement respecting the denial of certiorari
(“Courts and corrections officials must accordingly remain alert to the clear constitutional
problems raised by keeping prisoners like Apodaca, Vigil, and Lowe in “near-total
isolation” from the living world ... in what comes perilously close to a penal tomb.”). See
Ruiz v. Texas, 137 S.Ct. 1246 (2017) (Breyer, J., dissenting from denial of stay of
execution) (“If extended solitary confinement alone raises serious constitutional questions,
then 20 years of solitary confinement, all the while under threat of execution, must raise
similar questions, and to a rare degree, and with particular intensity.”); Davis v. Ayala, 576
MEMORANDUM DECISION AND ORDER - 7
U.S. 257 (2015) (Kennedy, J., concurring) (“Of course, prison officials must have
discretion to decide that in some instances temporary, solitary confinement is a useful or
necessary means to impose discipline and to protect prison employees and other inmates.
But research still confirms what this Court suggested over a century ago: Years on end of
near-total isolation exact a terrible price.”).
Many prisons have changed the policies and procedures governing solitary
confinement units based upon such research. As noted above, the particular facts of a
prisoner’s segregation must be taken into account in a court’s “atypical and significant
“Administrative segregation” is a catch-all phrase for any form of non-punitive
segregation. For example, prisoners may be segregated to protect them from other
prisoners; to protect other prisoners from the segregated prisoner; or pending investigation
of disciplinary charges, transfer, or re-classification. See Hewitt, 459 U.S. at 468. An
example of a legitimate administrative ground for placement and retention in segregated
housing is gang validation, which is not considered a punitive decision. See Bruce v. Ylst,
351 F.3d 1283, 1287 (9th Cir. 2003). “It is plain that the transfer of an inmate to less
amenable and more restrictive quarters for nonpunitive reasons is well within the terms of
confinement ordinarily contemplated by a prison sentence.” Hewitt, 459 U.S. at 468.
In Hewitt, the United States Supreme Court held that a lesser quantum of process
than the Wolff procedures is due when a prisoner is placed in administrative segregation
than when a prisoner is placed in disciplinary segregation. See Toussaint v. McCarthy, 801
F.2d 1080, 1099 (9th Cir. 1986) (“Toussaint I”), abrogated in part on other grounds by
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Sandin v. Conner. The process due for initial placement in administrative segregation is as
follows: (1) “an informal nonadversary hearing” must be held “within a reasonable time
after the prisoner is segregated”; (2) the prisoner must be informed of the charges against
him or of the prison officials’ “reasons for considering segregation”; and (3) the prisoner
must be allowed “to present his views to the prison official charged with deciding whether
to transfer him to administrative segregation.” Toussaint I, 801 F.2d at 1101. In such
instances, a prisoner ordinarily is limited to presenting his views in a written statement,
although prison administrators may permit oral presentations in cases where they believe
a written statement would be ineffective. Hewitt, 459 U.S. at 476.
An “ad-seg” prisoner is not entitled to: (1) detailed written notice of charges; (2)
representation by counsel or counsel-substitute; (3) an opportunity to present witnesses;
(4) an opportunity to cross-examine witnesses; (5) a written decision describing the reasons
for placing the prisoner in administrative segregation; or (6) disclosure of the identity of
confidential informants providing information leading to the placement of the prisoner in
administrative segregation. Toussaint I, 801 F.2d at 1100–01 (citations omitted); Wolff,
418 U.S. at 567–68; Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), overruled on
other grounds by Sandin v. Conner.
In administrative segregation decisionmaking, prison officials may rely mainly on
subjective factors because of the security reasons behind such segregation:
In assessing the seriousness of a threat to institutional security,
prison administrators necessarily draw on more than specific
facts surrounding a particular incident; instead, they must
consider the character of the inmates confined in the
institution, recent and longstanding relations between
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prisoners and guards, prisoners inter se, and the like. In the
volatile atmosphere of a prison, an inmate easily may
constitute an unacceptable threat to the safety of other
prisoners and guards even if he himself has committed no
misconduct; rumor, reputation, and even more imponderable
factors may suffice to spark potentially disastrous incidents.
The judgment of prison officials in this context, like that of
those making parole decisions, turns largely on purely
subjective evaluations and on predictions of future behavior;
indeed, the administrators must predict not just one inmate’s
future actions, as in parole, but those of an entire institution.
Toussaint I, 801 F.2d at 1100 (citing Hewitt, 459 U.S. at 474).
The process due for retaining a prisoner in administrative segregation is that prison
officials must conduct a periodic review of the segregation decision, but the intervals at
which that review occurs is at the discretion of prison officials. Toussaint v. McCarthy, 926
F.2d 800, 803 (9th Cir. 1990), cert. denied, 502 U.S. 874 (1991) (“Toussaint II ”). The
United States Court of Appeals for the Ninth Circuit has upheld periodic reviews occurring
every 120 days as comporting with due process. Id. Again, due process for periodic reviews
does not require a detailed written notice of the charges, representation by counsel or other
inmates, or an opportunity to present witnesses, or a hearing. Toussaint I, 801 F.2d at 1100–
UNDISPUTED MATERIAL FACTS
On May 7, 2018, Plaintiff was found guilty of a Disciplinary Offense Report (DOR)
for an attack on another inmate based in part on allegations that Plaintiff put his exposed
penis on another inmate’s face and demanded oral sex while two other inmates restrained
the victim. See Dkts. 24-1, p. 15; 20-4, pp. 6-7. While Plaintiff disputes that he was
involved in the incident at all, that dispute is not material; rather, it is undisputed that he
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was found guilty—and that is what is at issue in Plaintiff’s claims. The DOR guilt finding,
along with a description of the sexual nature of the incident, is now a permanent part of
Plaintiff’s prison file. The incident description is included in four separate places in the
prison’s inmate file summary commonly called “C-Notes.” See Dkt. 20-4, pp. 8-25. All
IDOC employees in prisoner relations have access to the C-Notes. Plaintiff asserts he was
not afforded Wolff procedural protections on his DOR prior to the guilty finding that now
permeates his prison records.
Neither the state of Idaho nor the IDOC has formally identified Plaintiff as a “sex
offender.” Rather, that is done only when a prisoner has been convicted in a court of law
of a sex offense as defined in the Idaho Code. Dkt. 24, ¶ 4, Decl. of Jay Christensen. In
Plaintiff’s C-Notes entered after the May 7, 2018 DOR, Plaintiff’s restrictive housing
reviews indicate that he is not a “sex offender.” Id., ¶ 7. Under the “Case Management”
section of each housing review, the word “No” is written next to the phrase “sex offender,”
which indicates that Plaintiff is not classified as a sex offender. Id.
Plaintiff stands convicted of illegal possession of a weapon and escape.2 Plaintiff
has not been convicted of a crime that qualifies as a sex offense. Nor has he shown that he
has been required to register on a state sex offender website or has been subjected to
mandatory sex offender treatment.
ALLEGATIONS WITHOUT ADQUATE SUPPORT
It appears that Plaintiff was placed in, or remained in, administrative segregation
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after the DOR guilt finding. See Dkt 20-4. He asserts that he was denied parole and
excluded from almost all human contact as a result of the DOR finding of guilt. Dkt. 3, p.
8. However, these allegations need documentation and additional factual details before the
Court can consider them.
The Court presently will bypass the administrative exhaustion procedural issue and
focus on the failure-to-state-a-claim issue. In the present case, Plaintiff has not pointed to
a state statute or regulation under which he was “labeled” a sex offender, nor has he alleged
that he was forced to attend mandatory sex offender treatment programs. While Plaintiff is
correct that, in layman’s terms, he has been found guilty of a sex-related DOR offense, he
is incorrect that, as a legal term of art, he has been “labeled” a “sex offender,” as in Neal.
Accordingly, this Court agrees with Defendants’ position that Plaintiff has failed to
show a liberty interest arising from state law because he has not been labeled a sex offender
under the Idaho Code or any Idaho regulation, and that portion of Plaintiff’s due process
claim is subject to dismissal.
Plaintiff has asserted that he suffered an atypical and significant hardship as a result
of his placement in administrative segregation after the DOR guilty finding. The record
does not contain sufficient information to determine whether Plaintiff has stated a claim
with these vague allegations. The Court will permit the parties to supplement their briefing
on the Motion for Summary Judgment to show the conditions of administrative segregation
and the length of time Plaintiff spent there and to briefly argue whether the Sandin and
Toussaint I factors have been met. There is no liberty interest in parole in Idaho; thus,
MEMORANDUM DECISION AND ORDER - 12
denial of parole plays no role in the Court’s analysis.3
Unless Plaintiff makes such a showing, he has not demonstrated a liberty interest,
and, therefore, he cannot proceed further on any claims that he has been denied due process
on his placement in administrative segregation.
IT IS ORDERED:
1. Defendants’ Motion for Summary Judgment (Dkt. 20) is GRANTED in part as to the
“sex offender label” due process claim.
2. Plaintiff’s Motion for Clarification (Dkt. 26) is GRANTED in part, to the extent that
Plaintiff and Defendants will be given further opportunity to brief the Sandin and
Toussaint I issues and provide supporting exhibits, as follows: Defendant’s supplement
shall be due 21 days after entry of this Order, and Plaintiff’s responsive supplement
shall be due 21 days after Defendants file their supplement. Defendants may then file a
reply within 14 days. Nothing further shall be filed after that time.
DATED: September 9, 2020
David C. Nye
Chief U.S. District Court Judge
There is “no right under the Federal Constitution to be conditionally released before the expiration of a
valid sentence, and the States are under no duty to offer parole to their prisoners.” See Swarthout v. Cooke,
562 U.S. 216, 220 (2011); Board of Pardons v. Allen, 482 U.S. 369, 380-81 (1987). Therefore, an inmate
can bring a procedural due process challenge to a parole denial decision only when there is a state-created
liberty interest in parole. Swarthout, 562 U.S. at 220. In Banks v. State of Idaho, 920 P.2d 905 (Idaho 1996),
the Idaho Supreme Court held that in Idaho “parole is not an automatic right or liberty interest.” Id. at 908.
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