Orlomoski v. Neven et al

Filing 16

AMENDED ORDER that Defendants Richard Liverani and Dwight Nevens Motion for Summary Judgment 10 is GRANTED. This AMENDS ECF 13, filed on 08/16/2011, as follows: On page 3, line 1, at Fed. R. Civ. P. 56, (c)(2) n.1 has been deleted. Signed nunc pro tunc by Judge Gloria M. Navarro on 8/16/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DANIEL ORLOMOSKI,
Plaintiff,
vs.

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DWIGHT W. NEVEN, et al.,
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Defendant.

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Case No.: 2:10-cv-01250-GMN-LRL
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AMENDED ORDER
)
) This AMENDS ECF 13, filed on 08/16/2011, as
) follows: On page 3, line 1, at Fed. R. Civ. P.
) 56, “(c)(2) n.1” has been deleted.
)
)

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INTRODUCTION

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Before the Court is Defendants Richard Liverani and Dwight Neven’s Motion for

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Summary Judgment (ECF No. 10). Plaintiff Daniel Orlomoski did not file a response.
FACTS AND BACKGROUND
Plaintiff filed the instant prisoner civil rights case arising out of an incident that

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occurred at High Desert State Prison (“HDSP”) on November 18, 2009. After a fight occurred

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in culinary, Plaintiff was placed in confinement, allegedly before he had been found guilty of

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any charges. Plaintiff alleges that Liverani and Neven denied him due process at his

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disciplinary hearing because they did not allow him to confront his accuser, call witnesses or

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access counsel (law library assistant per Administrative Regulation 707). Plaintiff’s original

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complaint alleged violations of his Fifth and Sixth Amendment rights. These claims were

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dismissed. (ECF No. 5.) Plaintiff’s amended complaint alleges violations of his Fourteenth

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Amendment due process and equal protection rights. After Plaintiff filed his Amended

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Complaint this Court dismissed Plaintiff’s Fourteenth Amendment equal protection claims.

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(ECF No. 8.) Shortly thereafter Defendants filed the instant Motion for Summary Judgment.

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DISCUSSION

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A.

Failure to Respond
Plaintiff failed to file a response to Defendants’ Motion for Summary Judgment. On

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February 28, 2010, a notice that the Minute Orders regarding the requirements of Klingele v.

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Eikenberry and Rand v. Rowland was undeliverable and did not get sent to Plaintiff was filed.

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(ECF No. 12.) Therefore there is a question regarding whether Plaintiff actually received the

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Motion for Summary Judgment.
Plaintiffs, however, are responsible for keeping their contact information up-to-date in

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pending cases. In re Hammer, 940 F.2d 524, 526 (9th Cir.1991) (upholding denial of motion to

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set aside default judgment where plaintiff failed to update address and knew or should have

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known of proceedings). Additionally, Local Special Rule 2–2 requires that plaintiffs

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immediately file with the court written notification of any change of address. Failure to do so

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may result in dismissal of the action with prejudice.
Local Rule 7-2(d) provides that the “failure of an opposing party to file points and

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authorities in response to any motion shall constitute a consent to the granting of the motion.”

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However, “[a] motion for summary judgment cannot be granted simply because there is no

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opposition, even if the failure to oppose violated a local rule.” Martinez v. Stanford, 323 F.3d

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1178, 1182 (9th Cir. 2003). Accordingly, the Court will consider the merits of the motion for

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summary judgment.

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B.

Legal Standard
The Federal Rules of Civil Procedure provide for summary adjudication when the

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pleadings, depositions, answers to interrogatories, and admissions on file, together with the

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affidavits, if any, show that “there is no genuine issue as to any material fact and that the

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movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56. A principal purpose

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of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

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In determining summary judgment, a court applies a burden-shifting analysis. “When

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the party moving for summary judgment would bear the burden of proof at trial, it must come

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forward with evidence which would entitle it to a directed verdict if the evidence went

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uncontroverted at trial. In such a case, the moving party has the initial burden of establishing

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the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp.

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Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In

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contrast, when the nonmoving party bears the burden of proving the claim or defense, the

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moving party can meet its burden in two ways: (1) by presenting evidence to negate an

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essential element of the nonmoving party=s case; or (2) by demonstrating that the nonmoving

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party failed to make a showing sufficient to establish an element essential to that party’s case

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on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–

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24. If the moving party fails to meet its initial burden, summary judgment must be denied and

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the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co.,

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398 U.S. 144, 159–60 (1970).

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If the moving party satisfies its initial burden, the burden then shifts to the opposing

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party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v.

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Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute,

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the opposing party need not establish a material issue of fact conclusively in its favor. It is

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sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the

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parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

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Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid

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summary judgment by relying solely on conclusory allegations that are unsupported by factual

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data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go

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beyond the assertions and allegations of the pleadings and set forth specific facts by producing

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competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.

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At summary judgment, a court’s function is not to weigh the evidence and determine

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the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at

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249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be

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drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable

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or is not significantly probative, summary judgment may be granted. See id. at 249–50.

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C.

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Fourteenth Amendment Right to Due Process
The Due Process Clause of the Fourteenth Amendment provides that the State shall not

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“deprive any person of life, liberty, or property, without due process of law.” U.S. Const.

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amend. XIV, § 1. “[T]he fact that prisoners retain rights under the Due Process Clause in no

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way implies that these rights are not subject to restrictions imposed by the nature of the regime

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to which they have been lawfully committed . . . .” Wolff v. McDonnell, 418 U.S. 539, 556

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(1974). When a prisoner faces disciplinary charges, prison officials must provide the prisoner

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with (1) a written statement at least twenty-four hours before the disciplinary hearing that

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includes the charges, a description of the evidence against the prisoner, and an explanation for

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the disciplinary action taken; (2) an opportunity to present documentary evidence and call

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witnesses, unless calling witnesses would interfere with institutional security or correctional

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goals; and (3) legal assistance where the charges are complex or the inmate is illiterate. See id.

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at 563-70; see also Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454

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(1985); Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003); Neal v. Shimoda, 131

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F.3d 818, 830-31 (9th Cir. 1997); Walker v. Sumner, 14 F.3d 1415, 1419-20 (9th Cir. 1994),

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abrogated in part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995); McFarland v.

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Cassady, 779 F.2d 1426, 1428 (9th Cir. 1986), abrogated in part on other grounds by Sandin,

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515 U.S. 472. Plaintiff does not allege any facts that he was not given proper notice of the

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disciplinary hearing, however he does contend that the only evidence that was provided was

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untrustworthy. Plaintiff alleges that he was not allowed to confront his accuser and call

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witnesses and was not given legal assistance.

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Evidence

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Plaintiff alleges that the only evidence that was provided at the disciplinary hearing was

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untrustworthy. While due process requires some evidentiary basis for a disciplinary decision,

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it does not impose significant new burdens on proceedings within the prison. Superintendent,

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Mass. Corr. Inst., Walpole, 472 U.S. at 455. It does not require an examination of the entire

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record, independent assessment of the credibility of witnesses, or weighing of the evidence, as

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Plaintiff would have the court do. Id. As long as there is any evidence in the record that could

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support the conclusion reached by the disciplinary board, then due process is satisfied. Id.

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Defendants provide evidence in the form of reports from correctional officers. (See

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Investigative Report, Ex. B, ECF No. 10-1.) These reports all indicate that Plaintiff had blood

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on his jump suit and that his jump suit was also soaked in bleach as if to clean off the blood

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stains. Correctional Officer Vasquez found abrasions on his hand consistent with a fight. This

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evidence is sufficient to support the disciplinary board’s finding that Plaintiff was involved in

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a fight and should be disciplined accordingly.

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2.

Right to Confront Accuser and Call Witnesses

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Plaintiff next alleges that his due process rights were violated because he was not

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allowed to confront his accuser at the disciplinary hearing. The United States Supreme Court

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has plainly held that inmates do not have an absolute right to confront their accusers during

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disciplinary hearings. Wolff, 418 U.S. at 567. (“If confrontation and cross-examination of those

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furnishing evidence against the inmate were to be allowed as a matter of course, as in criminal

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trials, there would be considerable potential for havoc inside the prison walls.”). This is

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consistent with the discretion given to prison administrators to institute policies and

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procedures aimed toward maintaining the safety and security of the institution. Therefore this

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point of error fails as a matter of law.

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Plaintiff also argues that he was not allowed to call witnesses at his hearing. Plaintiff

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identified correctional officers Richard Martin and Donald Davis as witnesses on his behalf.

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Defendant Liverani rejected the witnesses as “redundant.” (See Disciplinary Form III, Ex. D,

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ECF No. 10-1.). Pursuant to Administrative Regulation (AR) 707(2)(B)(3)(e)(7), inmates

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have only a “qualified” opportunity to call witnesses on their behalf, and it is within the

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hearing officer’s discretion to “deny any witness if the Officer feels that the testimony would

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be irrelevant, redundant, hazardous to the security of the institution/facility, or would in any

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way endanger the safety of any individual, including the witness.” (AR 707, Ex. F, ECF No.

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10-2.) The United States Supreme Court has guided that it is appropriate to afford prison

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officials the discretion to refuse to call witnesses if allowing the witnesses would compromise

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institutional safety or correctional goals. Wolff, 418 U.S. at 565. The Supreme Court further

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directed that prison officials should have the necessary discretion to keep the hearing within

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reasonable limits and to refuse to call witnesses that would undermine authority, such as

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irrelevant or lack of necessity of the testimony. Id. Defendants provide evidence that Liverani

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denied Plaintiff’s request for witnesses because they were not present during the fight and did

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not possess relevant first-hand knowledge of Plaintiff’s participation in the fight. (See

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Liverani Affidavit, Ex. G, ECF No. 10-4.) There is no due process violation resulting from the

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failure to call witnesses who could not provide any new relevant information. See Baxter v.

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Palmigiano, 425 U.S. 308, 321, 96 S.Ct. 1551 (1976); see also Bostic v. Carlson, 884 F.2d

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1267, 1271–72 (9th Cir.1989). Therefore Defendants are entitled to summary judgment on

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this claim.

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3.

Right to Counsel

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Plaintiff alleges that he was not permitted to consult with a law library assistant prior to

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the hearing and was not equipped with substituted counsel during the hearing. Under the

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Supreme Court decision in Wolff, an inmate is only entitled to legal assistance where the

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charges are complex or the inmate is illiterate. Wolff 418 U.S. at 570. AR 707(2)(B)(3)(e)(3)

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permits inmates to consult with a law library assistant prior to the disciplinary hearing as long

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as an inmate has been assigned to act as a law library assistant. (See AR 707 Ex. F, ECF No.

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10-2.) Plaintiff has not provided any evidence that he requested a pre-hearing consultation.

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Pursuant to AR 707(2)(B)(3)(e)(3), inmates are not entitled to the assistance of prison staff

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during a disciplinary hearing unless the inmate suffers from an impaired mental or emotional

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state such that the inmate is incapable of understanding or supporting their own defense. (See

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Id.) This is consistent with the Supreme Court’s decision in Wolff. Plaintiff has not alleged

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that he suffers from an impaired mental or emotional state. Accordingly, Plaintiff’s point of

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error that he was not given counsel fails as a matter of law.

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D.

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Administrative Segregation
Plaintiff claims that his due process rights were violated because he was placed in

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administrative segregation pending his disciplinary hearing on his assault and battery charges.

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There is no liberty interest for prison inmates to remain in the general prison population under

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the Constitution. Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864 (1983) (overruled on other

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grounds by Sandin v. Conner, 15 U.S. 472 (1995)). Since prison officials have broad

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administrative and discretionary authority over institutions they manage and inmates retain

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only a narrow range of protected liberty interests, administrative segregation is the sort of

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confinement that inmates should reasonably anticipate receiving at some point in their

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incarceration and it does not involve interests independently protected by the Due Process

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Clause. Id.

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AR 507(1)(B) authorizes the temporary placement of inmates into administrative

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segregation pending an investigation into violent misconduct. (See AR 507, Ex. I, ECF No.

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10-4). There is no question that there was a violent altercation in which Plaintiff was alleged

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to have taken part in. The prison officials should be allowed the freedom to exercise their

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administrative authority without judicial oversight so that they can maintain the safety of all

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involved. See generally, Grayson v. Rison, 945 F.2d 1064 (9th Cir. 1991). Because Plaintiff

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has no right, interest, or entitlement to be housed in the general population he was not deprived

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of any due process rights.

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E.

Defendant Neven Did Not Participate in Any of the Actions

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In order to be held liable under Section 1983, a person acting under color of law must

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have personally participated in the deprivation. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989). In a Section 1983 action, supervisors cannot be held accountable for the conduct of

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their subordinates under a respondeat superior theory; supervisors must have participated in or

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directed the violations, or knew of the violations and failed to act to prevent them. Id. Plaintiff

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has alleged no facts that show that Defendant Neven was personally involved in any of the

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events that form the basis of Plaintiff’s claims. Defendants argue that he has no role in the

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investigation, drafting of the notice of charges or the disciplinary hearing. Defendant Neven’s

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only involvement was limited to his response to Plaintiff’s internal grievance on the first,

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informal level. (See Inmate Issue History, Ex. E, ECF No. 10-1.) None of Plaintiff’s claims

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stem from the grievance process. Accordingly, Defendant Neven is entitled to summary

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judgment.

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F.

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Qualified Immunity
In addition to the reasons stated above as to why summary judgment is proper, the

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Court also finds that Defendants are entitled to qualified immunity. “The doctrine of qualified

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immunity protects government officials from civil liability when performing discretionary

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functions as long as ‘their conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan,

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129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

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Analyzing whether a government official is entitled to qualified immunity involves two

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questions: (1) whether the facts alleged show the official violated a constitutional right; and

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(2) whether the right was clearly established such that a reasonable government official would

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know the conduct was unlawful. Saucier v. Katz, 533 U.S. 194, 201 (2001) (overruled on other

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grounds by Pearson v. Callahan, 555 U.S. 223 (2009)).

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The term “clearly established” means that “[t]he contours of the right [are] sufficiently

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clear that a reasonable official would understand that what he is doing violates that right.”

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Anderson v. Creighton, 483 U.S. 635, 639 (1987)). The key inquiry is whether the

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unlawfulness of the act would have been apparent to a reasonable person in the light of pre-

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existing law at the time the act was committed. See Hope v. Pelzer, 536 U.S. 730, 739 (2002).

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1.

Disciplinary Hearing Claims

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As seen from the analysis above there is much case law from the U.S. Supreme Court

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and Ninth Circuit that show that an inmate does not have an unqualified right to confront his

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accusers, call witnesses and receive substitute counsel. The law does not support a finding that

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such rights are clearly established. Therefore the Court finds that Defendants are entitled to

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qualified immunity on any claims arising from the disciplinary hearing.

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2.

Administrative Segregation Claim

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The Court has cited to U.S. Supreme Court case law that holds that Plaintiff does not

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have a right to be free from administrative segregation prior to an administrative hearing.

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Thus, it would not be apparent to a reasonable prison official that it would be unconstitutional

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to place an inmate in administrative segregation in light of the U.S. Supreme Court guidance.

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Accordingly, Defendants are entitled to qualified immunity on any claims arising from his

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administrative segregation.
CONCLUSION
IT IS HEREBY ORDERED that Defendants Richard Liverani and Dwight Neven’s
Motion for Summary Judgment (ECF No. 10) is GRANTED.

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DATED this 1st day of February, 2012.

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NUNC PRO TUNC DATE: August 16, 2011.

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________________________________
Gloria M. Navarro
United States District Judge

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