Almy v. Davis et al
Filing
549
ORDER granting 543 Motion for Summary Judgment. Signed by Judge Richard F. Boulware, II on 9/9/2020. (Copies have been distributed pursuant to the NEF - DRS)
Case 2:12-cv-00129-RFB-VCF Document 549 Filed 09/09/20 Page 1 of 8
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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KEVING ALMY,
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Case No. 2:12-cv-00129-RFB-VCF
Plaintiff,
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ORDER
v.
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D. DAVIS, et al.,
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Defendants.
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I.
INTRODUCTION
Before the Court is Defendants’ Motion for Summary Judgment. ECF No. 543. For the reasons
discussed below, Defendants’ Motion for Summary Judgment is granted.
II.
PROCEDURAL BACKGROUND
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After mandatory screening pursuant to 28 U.S.C. § 1915A, Plaintiff Kevin Almy,
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proceeding pro se in this action, filed an Amended Complaint on April 4, 2012. ECF Nos. 6,9.
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Following a trial on the merits of some of Plaintiff’s claims, two claims remain for adjudication:
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(1) an Eighth Amendment conditions of confinement claim against Defendants Tackett, Halling,
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Henley, Mattice and Warden Smith, and (2) a Fourteenth Amendment claim for deprivation of
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liberty without due process against Defendant Kennedy. ECF Nos. 9, 461. Defendants filed a
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Motion for Summary Judgment regarding these remaining claims on February 27, 2020. ECF No.
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543. Plaintiff filed two motions for an extension of time to respond to Defendants’ motion, which
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this Court granted. ECF Nos. 545-548. Plaintiff had until August 24, 2020 to file a response yet
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failed to do so. ECF No. 548.
III.
FACTUAL ALLEGATIONS
The Court finds the following facts undisputed in terms of this motion as Plaintiff has not filed
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a response to Defendants’ motion. This case is a pro se civil rights action pursuant to 42 U.S.C. §
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1983. Plaintiff was an inmate in custody of the Nevada Department of Corrections (“NDOC”) at
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the time of alleged events, which occurred while he was housed at Warm Springs Correctional
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Center (“WSCC”).
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a. Eighth Amendment—Conditions of Confinement
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WSCC officials assigned Plaintiff to WSCC Unit 4B, cell 12 (“4B 12”) on November 28, 2010
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through December 2, 2010. Plaintiff alleges that while he was in 4B 12 the temperatures were
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frigid. Defendant Tackett was working Unit 4B at the time and did not perceive and was unaware
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of “frigid conditions” in cell 4B 12 during the relevant time period. Defendant Mattice reviewed
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the daily management reports and maintenance records for Unit 4B for the relevant period and
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found no evidence to indicate cold temperatures in 4B 12 or a problem with Unit 4B’s heating
system.
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During this period, Plaintiff had access to all the clothing and bed linens that he was entitled
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to. Tackett provided Plaintiff with one orange jumpsuit, one mattress, one set of sheets, and one
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blanket. Plaintiff was also able to obtain an additional blanket. Plaintiff did not file a grievance
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regarding inadequate heat or “frigid” winter temperatures in 4B 12, although he filed grievances
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regarding other issues related to his time in segregation from late November to early December
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2010.
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b. Fourteenth Amendment—Denial of Due Process
Plaintiff alleges that he spent 49 days in administrative segregation—43 days prior to his
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Disciplinary Hearing and six days afterwards. Plaintiff alleges that Defendant Kennedy made
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several procedural errors before, during, and after the Disciplinary Hearing. On August 3, 2011,
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Plaintiff received Notice of Charges against him for his Disciplinary Hearing, which was more
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than 24 hours before his Hearing on September 11, 2011. During the Hearing, Plaintiff was not
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allowed to call one witness due to relevancy and redundancy issues. Plaintiff was denied legal
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counsel for the Hearing; his proposed legal counsels were two “legal-eagle friends,” John Quintaro
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and Countryman; however, Plaintiff produced no evidence that they were Nevada-licensed
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attorneys. After the Hearing, Plaintiff received a written statement of evidence relied upon and
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the reasons for taking disciplinary action against him.
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IV.
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Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories,
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and admissions on file, together with the affidavits, if any, show “that there is no genuine dispute
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LEGAL STANDARD
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986). When considering the propriety
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of summary judgment, the court views all facts and draws all inferences in the light most favorable
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to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014).
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However, when the nonmoving party fails to file a point and authorities in response, the court can
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consider the facts undisputed for the purposes of the motion. Fed.R.Civ.P. 56 (e)(2); Heinemann
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v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013). Failure of the moving party to respond to the
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motion alone is not sufficient to grant summary judgment under Local Rule 7-2(d). See Martinez
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v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003). Instead, the moving party must still meet its
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affirmative duty under Fed.R.Civ.P. 56 to demonstrate its entitlement to judgment as a matter of
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law. Id. Therefore, this Court still must determine whether summary judgement shall be granted
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on the merits.
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V.
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ANALYSIS
a. Exhaustion of Administrative Remedies
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Defendants argue that Plaintiff has not exhausted administrative remedies with respect to his
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Eight Amendment claim against Defendants, Tackett, Halling, Henley, Mattice and Warden Smith,
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and thus cannot proceed with a § 1983 action against them. This Court agrees.
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The Prison Litigation Reform Act (PLRA) requires that before bringing a § 1983 action, a
prisoner must exhaust all available administrative remedies. 42 U.S.C. § 1997e(a). For exhaustion
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to be proper, the prisoner must proceed through each step of the prison’s grievance procedure.
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Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (citing Woodford v. Ngo, 548 U.S. 81, 93
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(2006)). The level of detail needed in a grievance to properly exhaust under the PLRA depends
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on the applicable grievance procedures of each individual prison. Jones v. Bock, 549 U.S. 199,
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218 (2007). In the absence of a prison policy or procedure specifying a particular level of detail
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at which grievances must be stated, the Ninth Circuit has held that a grievance is sufficient for
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exhaustion purposes “if it alerts the prison to the nature of the wrong for which redress is sought.”
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Griffin, 557 F.3d at 1120 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). Where an
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exhaustion defense is raised in a motion for summary judgment, disputed questions of fact should
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be resolved by the judge rather than the jury. Albino v. Baca, 747 F.3d 1162,1170–71 (9th Cir.
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2014). “If the district judge holds that the prisoner has exhausted available administrative
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remedies, that administrative remedies are not available, or that a prisoner's failure to exhaust
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available remedies should be excused, the case may proceed to the merits.” Id. at 1171. “[T]he
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defendant in a PLRA case must plead and prove nonexhaustion as an affirmative defense.” Albino,
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747 F.3d at 1171.
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NDOC Administrative Regulation (AR) 740 sets forth the grievance procedure applicable to
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Nevada inmates. There are three levels of grievances within AR 740: an Informal grievance (AR
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740.08), a First–Level grievance (AR 740.09), and a Second–Level grievance (AR 740.10). Id. at
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11-14. Inmates who are dissatisfied with a decision at a lower level may appeal the decision by
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filing a higher–level grievance. Once a decision on the merits has been rendered on a Second–
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Level grievance, the NDOC administrative grievance process is considered exhausted. AR 740
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also provides the time frame in which a grievance must be filed and provides that an informal
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grievance must be filed within six months for issues involving personal injury, medical, or any
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other tort claims including civil rights claims.
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Here, Defendants met their burden by showing that NDOC does have official policies for
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prison grievance procedures and there is no evidence on the record that Almy submitted any type
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of grievance regarding “frigid” temperatures in 4B 12. Although Almy did submit grievances
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regarding inadequate pain treatment while in 4B 12 none of them even remotely discuss being
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subject to “frigid” temperatures. Thus, even submitted grievances regarding Almy’s conditions of
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confinement were insufficient to “alert the prison to the nature of the wrong for which redress is
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sought.” Griffin, 557 F.3d at 1120. Therefore, this Court finds that Plaintiff did not exhaust his
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administrative remedies as to his conditions and confinement claim.
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b. Deprivation of Due Process
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Defendants argue that the time Plaintiff spent in disciplinary segregation does not constitute
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an atypical or significant deprivation of liberty and Defendant Kennedy did not violate Plaintiff’s
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due process rights before, during, and after Plaintiff’s Disciplinary Hearing. This Court agrees.
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In order to state a Fourteenth Amendment due process claim, a plaintiff must adequately allege
that he was denied a specified liberty interest and that he was deprived of that liberty interest
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without the constitutionally required procedures. Swarthout v. Cooke, 562 U.S. 216, 219 (2011).
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Such interests may arise from the Constitution itself or from state law. When there is such a liberty
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interest or property interest, the only other issue is whether the plaintiff was deprived of that
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interest without the constitutionally required procedures. Id. at 861-63. Under the Due Process
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Clause, an inmate does not have liberty interests related to prison officials’ actions that fall within
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“the normal limits or range of custody which the conviction has authorized the State to impose.”
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Sandin v. Conner, 515 U.S. 472, 478 (1995) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)).
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The Clause also contains no embedded right of an inmate to remain in prison’s general population.
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Id. at 485–86.
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State law also may create liberty interests. Where segregated housing or other prison sanctions
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“impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of
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prison life[,]” due process protections arise. Sandin, 515 U.S. at 483–84. What matters is not the
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particular label or characterization of the segregation or sanction, but instead, its “whether
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disciplinary confinement presents the type of atypical, significant deprivation in which a State
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might conceivable create a liberty interest.” Id. at 486. When conducting the atypical-hardship
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inquiry, courts examine a “combination of conditions or factors. . . ” Keenan v. Hall, 83 F.3d
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1083, 1089 (9th Cir. 1996). These include: (1) the extent of difference between segregation and
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general population; (2) the duration of confinement; and (3) whether the sanction extends the
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length of the prisoner's sentence. See Serrano, 345 F.3d at 1078 (citing and discussing Sandin,
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515 U.S. at 486–87). That a particular punishment or housing placement is more restrictive than
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administrative segregation or general population privileges is, alone, not enough. Rather, the Court
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must consider whether the conditions present an atypical hardship. See Sandin, 515 U.S. at 486
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(noting that petitioner’s disciplinary segregation although having significant amounts of lockdown
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time was similar to those outside of segregation).
Plaintiff’s due process claim is based on the fact that he spent 49 days in segregation for
discipline resulting from a Disciplinary Hearing where Defendant Kennedy made numerous
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alleged procedural errors. Aside from the allegations in Plaintiff’s complaint, Almy does not
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provide any evidence that his placement in segregation was atypical or significant. Moreover, it
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is unlikely that Almy’s 49 days of segregation would be considered an “aytipical and significant
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hardship.” See Brown v. Oregon Dept. of Corrections, 751 F.3d 983, 987-88 (9th Cir. 2014)
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(twenty-seven-month confinement in segregation without meaningful review imposed an atypical
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and significant hardship.)
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Even if this Court were to assume Almy possessed a liberty interest in his placement in
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disciplinary segregation, the court also finds that Almy was afforded due process. A review of the
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notice of charges for the July 28, 2011 incident and the summary of the hearing for the notice of
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charges, shows that Almy was given a proper hearing before being sentenced to disciplinary
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segregation. Almy was served with the notice of charges within twenty-four hours of the hearing
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and he was given an opportunity to present evidence and call witnesses. See Wolff v. McDonnell,
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418 U.S. 539, 563-70, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (outlining what prison officials
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must provide an inmate when a protected liberty interest exists, and inmate faces disciplinary
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charges). And although Almy was refused counsel despite his request, the refusal was proper. Id.
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at 556 (noting counsel is required only when the inmate is illiterate or the issues presented are
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legally complex). Accordingly, because the material facts do not demonstrate a deprivation of due
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process rights, this Court finds that Plaintiff’s Fourteenth Amendment Due Process rights were not
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violated.
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VI.
CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment [543] is
GRANTED.
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DATED: September 8,2020.
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____________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE
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