Ackerman v. Gittere

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 5, 2025
• Docket: 23-2193
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 5 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JIN ACKERMAN, No. 23-2193

Plaintiff-Appellee, D.C. No. 3:20-cv-00337-MMD-CSD v.

GITTERE, et al., MEMORANDUM*

Defendants-Appellants.

Appeal from the United States District Court for the District of California Miranda M. Du, District Judge, Presiding

Submitted June 5, 2025**

Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

Defendants-Appellants, various Nevada Department of Corrections

employees, appeal from the district court’s denial of their motion for summary

judgment on Defendants’ qualified immunity defense and on Plaintiff Appellee

Ackerman’s due process and equal protection claims insofar as they preclude

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Defendants’ qualified immunity defense.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district

court’s decision on motion for summary judgment. Torres v. City of Madera,

648 F.3d 1119, 1123 (9th Cir. 2011). “Generally, an order denying summary

judgment is not appealable under 28 U.S.C. § 1291 as the parties must wait for final

judgment to appeal.” Melnik v. Dzurenda, 14 F.4th 981, 984 (9th Cir. 2021), citing

Johnson v. Jones, 515 U.S. 304, 309 (1995). “However, denials of qualified

immunity are appealable immediately under the collateral order doctrine.” Id. at

985, citing Plumhoff v. Rickard, 572 U.S. 765, 772 (2014). This is because qualified

immunity protects government employees from both liability and having to stand

trial. If the appeal of the denial of qualified immunity is not permitted until the final

judgment, “the immunity from standing trial will have been irretrievably lost.”

Plumhoff, 572 U.S. at 772.

We affirm.

As the parties are familiar with the factual and procedural history of this case,

we need not recount it here.

1. Qualified Immunity Defenses. We agree with the district court that

Defendants are not entitled to qualified immunity because, taken in the light most

favorable to Ackerman, Defendants violated his constitutional rights. See Gordon

v. Cnty. of Orange, 6 F.4th 961, 967–68 (9th Cir. 2021), citing Saucier v. Katz, 533

2 U.S. 194, 200–01 (2001), overruled on other grounds by Pearson v. Callahan, 555

U.S. 223 (2009); Wolff v. McDonnell, 418 U.S. 539, 563–70 (1974); Hewitt v. Helms,

459 U.S. 460, 477 n.9 (1983), abrogated in part on other grounds by Sandin v.

Connor, 515 U.S. 472 (1995). Moreover, those rights were clearly established at the

time of the alleged events. See Wolff, 418 U.S. at 563–70; Hewitt, 459 U.S. at 477

n.9. As such, the district court appropriately denied Defendants’ motion for

summary judgment on their qualified immunity defense.

2. Due Process Claims. Next, the district court was correct to find that there

are genuine issues of material fact as to whether Defendant Moskoff properly served

Ackerman with an amended Notice of Charges or held a preliminary hearing. The

prison maintains forms that require the date of service and both Moskoff and

Ackerman’s signatures to prove service and that a hearing was held. Here, neither

form is completed or signed by either party despite Defendants’ assertions that

Ackerman received due process. See Wolff, 418 U.S. at 563–70 (requiring in part

that prison officials provide an inmate facing disciplinary charges with a written

statement at least 24 hours before the disciplinary hearing that includes the charges

at issue, a description of the evidence against the prisoner, and an explanation for

the disciplinary action taken); Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992)

(per curiam) (“When prison officials limit an inmate’s efforts to defend himself, they

must have a legitimate penological reason.”) (citation omitted). Second, the district

3 court properly found that there were factual disputes precluding summary judgment

as to whether Ackerman waived his right to 24-hour notice of his amended

disciplinary charge. Indeed, Defendant Homan informed Ackerman that he was

amending Ackerman’s charge and postponed the hearing for 24 hours. Later,

Ackerman discussed some aspects of the charge with Homan, which Homan

interpreted as a waiver of the 24-hour period and proceeded to hold the hearing.

Near the end of the hearing, however, Ackerman voiced confusion as to whether he

would have 24 hours to prepare. As such, it is unclear whether Ackerman waived

his due process right to time to prepare his defense. See Wolff, 418 U.S. at 563–70.

Finally, the district court correctly found that Defendants Reubart and Gittere did

not present evidence to show that they provided Ackerman with periodic review of

his confinement in administrative segregation as required by due process. See

Hewitt, 459 U.S. at 477 n.9 (“Prison officials must engage in some sort of periodic

review of the confinement of such inmates [to satisfy due process].”). Consequently,

the district court properly denied Defendants’ motion for summary judgment on

Ackerman’s due process claims.

3. Equal Protection Claims. Lastly, we also agree with the district court that

there are factual issues as to whether Defendants’ continued segregation of Asian

Pacific-Islander inmates and African American inmates was narrowly tailored to

further the compelling government of prison security. See Harrington v. Scriber,

4 785 F.3d 1299, 1305 (9th Cir. 2015), citing Johnson v. California, 543 U.S. 499, 515

(2005). Indeed, it is unclear how long the segregation lasted and whether the

hostilities justifying such segregation were ongoing. Accordingly, the district court

correctly denied Defendants’ motion for summary judgment on Ackerman’s equal

protection claims.

AFFIRMED.