Bailey v. NDOC

• Court: District Court, D. Nevada
• Decided: March 8, 2022
• Docket: 2:19-cv-00057
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 ANTHONY BAILEY, ) 4 ) Plaintiff, ) Case No.: 2:19-cv-00057-GMN-EJY 5 vs. ) ) ORDER 6 NDOC, et al., ) 7 ) Defendants. ) 8 )

9 10 Pending before the Court is Defendants Sgt. Dogan,1 D. Stevens, and D. Tristan’s 11 (collectively, Defendants’”) Motion for Summary Judgment, (ECF No. 28). Plaintiff Anthony 12 Bailey (“Plaintiff”) filed a Response, (ECF No. 36), to which Defendants filed a Reply, (ECF 13 No. 40). 14 Also pending before the Court is Defendants’ Motion to File Under Seal Exhibit B to 15 Defendants’ Motion for Summary Judgment, (ECF No. 35).2 Plaintiff did not file a Response. 16 For the reasons discussed below, the Court GRANTS Defendants’ Motion for Summary 17 Judgment and Defendants’ Motion to File Under Seal. 18 /// 19 20 21

22 1 The Court notes that Defendants spell Defendant Sergeant Dogan differently from Plaintiff. Defendants spell 23 his name as “Sergeant Dugan.” (See Defs.’ Mot. Summ. J. (“MSJ”), ECF No. 28). Since neither party clarifies the correct spelling of his name, the Court uses “Defendant Sergeant Dogan” for purposes of this Order. 24 2 The Exhibit contains NDOC’s confidential operating procedure concerning PREA investigations. (See Notice 25 of Filing Under Seal Ex. B, ECF No. 31). For good cause appearing, the Court grants Defendants’ Motion to File Under Seal Exhibit B. 1 I. BACKGROUND 2 This case arises out of Defendants’ alleged constitutional violations while Plaintiff was 3 incarcerated at High Desert State Prison (“HDSP”). (See Compl., Ex. 1 to Appl. for Leave to 4 Proceed in forma pauperis, ECF No. 1-1); (see also Screening Order, ECF No. 4). At HDSP, 5 Plaintiff was housed in a level one behavioral modification prison unit. (See Compl. at 4). 6 There, he held a yard labor crew job, had physical access to the prison law library twice a week, 7 and attended Jumah religious services on Fridays. (Id.). 8 A. Factual Background 9 On January 27, 2016, an inmate accused Plaintiff and another unnamed inmate of 10 “asking him for sexual favors, making sexual comments, and physically touching his person.” 11 (See PREA Investigation Report, Ex. D to Appendix, ECF No. 34). Defendant Dugan, who 12 was assigned to supervise Plaintiff’s unit that day, investigated the accusations and moved 13 Plaintiff and the other inmate to administrative segregation pursuant to HDSP’s Sexual Assault 14 Policy and the Prison Rape Elimination Act (“PREA”). (See id. at 2); (see also AR 421, Ex. A 15 to Appendix, ECF No. 34); (see also OP 421, ECF No. 30). 16 During the move, Plaintiff alleges that the unit officer placed him into handcuffs outside 17 the purview of camera coverage, allegedly for the purpose of imposing corporal punishment. 18 (Compl. at 4). Plaintiff states that the unit officer ordered Plaintiff to drag his legal and 19 personal properties approximately a quarter mile, uphill, while handcuffed. (Id.). According to 20 Plaintiff, the unit officer did not explain to him either verbally or in writing why he was being 21 moved. (Id.). Plaintiff notes, however, that Defendant Stevenson verbally explained to Plaintiff 22 why Defendant Dogan ordered him to place Plaintiff into administrative segregation on

23 February 5, 2016. (Id. at 5). 24 Because of his move to administrative segregation, Plaintiff lost his job, was denied 25 access to Jumah services, and lost physical access to the prison law library. (Id.). Additionally, 1 he allegedly endured daily smells of feces and urine for periods of 15 to 20 minutes and was 2 otherwise subjected to eating cold food. (Id.). On January 4, 2017, NDOC closed the PREA 3 investigation “due to insufficient evidence for criminal prosecution and the inability to obtain 4 the alleged victim’s statement” since the victim was discharged a month after the incident. (See 5 Cellmate History, Ex. H to Appendix, ECF No. 34); (see also PREA Investigation Report at 6 33). NDOC moved Plaintiff out of administrative segregation shortly thereafter. 7 B. NDOC Policies 8 There are two main policies at HDSP that address complaints of sexual harassment and 9 rape in the prison context—OP 421 and AR 507. Each policy is discussed in detail below. 10 1. OP 421: Sexual Assault of Inmates 11 Pursuant to PREA, HDSP developed OP 421, which establishes the procedures 12 concerning a PREA complaint. (See OP 421, ECF No. 30). OP 421 states that HDSP “has a 13 Zero Tolerance policy for any form of sexual misconduct to include staff/conductor/or 14 volunteer on inmate or inmate on inmate sexual harassment, sexual assault, sexual abusive 15 contact and consensual sex.” (Id. at 1). “Any staff member who receives a verbal or written 16 report of sexual assault or any attempt thereof, will immediately report the information through 17 their chain of command.” (Id. at 28). After seventy-two (72) hours, “the following steps shall 18 be taken: (a) Ensure the victim is safe and kept separated from the aggressor; (b) Notify 19 supervisor; (c) Escort the victim to the nearest department medical unit; (e) Collect evidence (if 20 any) and book it with the appropriate chain of evidence form; (f) Place suspect in 21 administrative segregation pending investigation; and (g) Include all written reports related to 22 the sexual assault. (Id. at 32).3

23 // 24

25 3 The Policy does not include Step “(d)” under “Procedure for incidents reported after 72hrs of occurrence.” (See OP 421, ECF No. 30). 1 2. AR 507: Administrative Segregation 2 AR 507 outlines HDSP’s policy concerning administrative segregation. According to 3 AR 507, “[i]nmates will be temporarily placed in administrative segregation to protect the 4 safety of the inmate, other persons, the institution or community or to conduct investigations 5 into violent misconduct or misconduct which threatens escape or significant disruption of 6 institutional operations.” (See AR 507, Ex. B to Appendix, ECF No. 34). An inmate who is 7 placed in administrative segregation “will receive an initial administrative segregation hearing 8 within three (3) working days of that temporary placement.” (See AR 507.01(2)(C)). 9 On January 8, 2019, Plaintiff filed the instant suit alleging violations of the First, Eighth, 10 and Fourteenth Amendments against NDOC, D. Stevens, Sergeant Dogan, D. Nevens, and D. 11 Tristan. (Compl. at 3). After screening, only the following claims survived: (1) First 12 Amendment and RLUIPA claims against Defendants Stevens, Dogan, and Tristan; (2) an 13 Eighth Amendment claim against Defendants Stevens, Dogan, and Tristan; and (3) a 14 Fourteenth Amendment claim against Defendants Stevens, Dogan, and Tristan. (See Screening 15 Order at 5–9, ECF No. 4). Defendants thereafter filed the instant Motion for Summary 16 Judgment. (See Defs.’ MSJ, ECF No. 28). 17 II. LEGAL STANDARD 18 The Federal Rules of Civil Procedure provide for summary adjudication when the 19 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 20 affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant 21 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that 22 may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

23 (1986). A dispute as to a material fact is genuine if there is a sufficient evidentiary basis on 24 which a reasonable fact-finder could rely to find for the nonmoving party. See id. “The amount 25 of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or 1 judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral 2 Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 3 253, 288–89 (1968)). “Summary judgment is inappropriate if reasonable jurors, drawing all 4 inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s 5 favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United 6 States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A principal purpose of summary 7 judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 8 477 U.S. 317, 323–24 (1986). 9 In determining summary judgment, a court applies a burden-shifting analysis. “When 10 the party moving for summary judgment would bear the burden of proof at trial, it must come 11 forward with evidence which would entitle it to a directed verdict if the evidence went 12 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 13 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 14 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In 15 contrast, when the nonmoving party bears the burden of proving the claim or defense, the 16 moving party can meet its burden in two ways: (1) by presenting evidence to negate an 17 essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving 18 party failed to make a showing sufficient to establish an element essential to that party’s case 19 on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323– 20 24. If the moving party fails to meet its initial burden, summary judgment must be denied and 21 the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 22 398 U.S. 144, 159–60 (1970).

23 If the moving party satisfies its initial burden, the burden then shifts to the opposing 24 party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. 25 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, 1 the opposing party need not establish a material issue of fact conclusively in its favor. It is 2 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 3 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 4 Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). However, the nonmoving party “may not rely on 5 denials in the pleadings but must produce specific evidence, through affidavits or admissible 6 discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 7 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical 8 doubt as to the material facts.” Orr v. Bank of America, 285 F.3d 764, 783 (9th Cir. 2002) 9 (internal citations omitted). “The mere existence of a scintilla of evidence in support of the 10 plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252. In other words, the 11 nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations 12 that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 13 Instead, the opposition must go beyond the assertions and allegations of the pleadings and set 14 forth specific facts by producing competent evidence that shows a genuine issue for trial. See 15 Celotex Corp., 477 U.S. at 324. 16 At summary judgment, a court’s function is not to weigh the evidence and determine the 17 truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. 18 The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn 19 in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is 20 not significantly probative, summary judgment may be granted. See id. at 249–50. 21 III. DISCUSSION 22 The Court will address Plaintiff’s claims in the following order: (1) First Amendment

23 and Religious Land Use and Institutional Persons Act (“RLUIPA”) claims; (2) Eighth 24 Amendment conditions of confinement claim; and (3) Fourteenth Amendment due process 25 claim. 1 A. FIRST AMENDMENT AND RLUIPA 2 Plaintiff first alleges that Defendants violated the First Amendment and RLUIPA by 3 placing and keeping him in administrative segregation, where he could not regularly attend 4 Jumah religious services. (Screening Order 6:17–24). Defendants move for summary judgment 5 with respect to both claims. Specifically, Defendants argue that they are not liable under 6 supervisor liability because Plaintiff fails to establish that: (1) Defendants personally 7 participated in any decisions regarding Plaintiff’s ability to access religious services; and (2) 8 Defendants’ wrongful conduct caused the alleged deprivation of Plaintiff’s constitutionally 9 protected religious rights. (Defs.’ MSJ 8:4–9:4). Defendants alternatively argue that qualified 10 immunity applies. (Id. 10:19–13:22). The Court first discusses the merits of Plaintiff’s 11 religious claims before turning to Defendants’ alternative argument on qualified immunity. 12 1. Supervisory Liability under Section 1983 13 “There are two elements to a section 1983 claim: (1) the conduct complained of must 14 have been under color of state law, and (2) the conduct must have subjected the plaintiff to a 15 deprivation of constitutional rights.” Jones v. Cmty. Redevelopment Agency of Los Angeles, 733 16 F.2d 646, 649 (9th Cir. 1984). Under a theory of supervisory liability, “[a] supervisor is only 17 liable for the constitutional violations of . . . subordinates if the supervisor participated in or 18 directed the violations, or knew of the violations and failed to act to prevent them. There is no 19 respondeat superior liability under [§] 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 20 1989) (citations omitted). “Even if a supervisory official is not directly involved in the 21 allegedly unconstitutional conduct, ‘[a] supervisor can be liable in his individual capacity for 22 his own culpable action or inaction in the training, supervision, or control of his subordinates;

23 for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or 24 callous indifference to the rights of others.’” Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011) 25 (quoting Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)). 1 Here, a genuine dispute of material fact exists as to whether Defendants personally 2 participated in the alleged constitutional violations. Defendants argue that they did not 3 personally participate in restricting Plaintiff’s access to religious services because Defendants 4 did not contribute to any decisions concerning Plaintiff’s access to religious services or create 5 any policies concerning religious services for HDSP’s administrative segregation unit. (Defs.’ 6 MSJ 7:21–23). The crux of Plaintiff’s claim, however, is that Defendants personally 7 participated by moving Plaintiff to administrative segregation, where he was deprived of his 8 religious rights. (See Compl. at 4(a)). Though Defendants did not control the religious policies 9 in administrative segregation, Defendants affirmatively acted by relocating him to an 10 environment where Plaintiff’s constitutional religious rights were allegedly limited. 11 Citing to Coronel v. Paul, 225 F. App’x 575, 577 (9th Cir. 2007), Defendants argue that 12 individuals did not personally participate in the alleged violation because they neither oversaw 13 nor carried out the prohibition. (See Reply 3:23–4:19). However, “[a] person ‘subjects’ another 14 to deprivation of a constitutional right, within the meaning of section 1983, if he does an 15 affirmative act, participates in another’s affirmative acts or omits to perform an act which he is 16 legally required to do that causes the deprivation of which complaint is made.” Johnson v. 17 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Defendants’ relocation of Plaintiff to administrative 18 segregation is an affirmative action that allegedly caused Plaintiff’s religious deprivations while 19 in administrative segregation. Contrary to Defendants’ argument which is based an 20 unpublished Ninth Circuit decision, Defendants participated by “affirmatively act[ing]” in a 21 series of events that led to the eventual constitutional violation. Id. 22 Moreover, a genuine dispute of material fact exists with respect to causation. “In a

23 § 1983 action, the plaintiff must . . . demonstrate that the defendant’s conduct was the 24 actionable cause of the claimed injury. To meet this causation requirement, the plaintiff must 25 establish both causation-in-fact and proximate causation.” Harper v. City of Los Angeles, 533 1 F.3d 1010, 1026 (9th Cir. 2008) (citation omitted). “The requisite causal connection can be 2 established . . . by setting in motion a series of acts by others or by knowingly refus[ing] to 3 terminate a series of acts by others, which [the supervisor] knew or reasonably should have 4 known would cause others to inflict a constitutional injury.” Starr v. Baca, 652 F.3d 1202, 5 1207–08 (9th Cir. 2011) (internal quotation marks and citations omitted) (alterations in 6 original). Defendants specifically argue that their actions did not cause the alleged 7 constitutional deprivation because Defendants were legally required to relocate Plaintiff to 8 administrative segregation. (Defs.’ MSJ 8:16–9:4). They focus on the “wrongful act” language 9 in Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989), which states, in part, that a supervisor 10 may be liable if there is “a sufficient causal connection between the supervisor’s wrongful 11 conduct and the constitutional violation.” Hansen, 885 F.2d at 646 (citing Thompkins v. Belt, 12 828 F.2d 298, 303-04 (5th Cir. 1987)) (emphasis added). 13 Defendants, however, fail to explain what constitutes a “wrongful act” under Hansen. 14 Defendants seemingly argue that Defendant’s relocation of Plaintiff to administrative 15 segregation does not amount to a constitutional violation under the First Amendment and 16 RLUIPA because Defendants were legally obligated to move Plaintiff to administrative 17 segregation pursuant to PREA National Standards. (See Defs.’ MSJ 8:17–9:4); (see also PREA 18 National Standards, Ex. L to Appendix, ECF No. 34). Defendants, however, fail to mention the 19 legal standards for a First Amendment and RLUIPA violation. As the movant for summary 20 judgment, Defendants carry the burden in demonstrating that no genuine dispute of material 21 fact exists as to Plaintiff’s religious claims. Though Defendants were legally obligated to move 22 Plaintiff to administrative segregation, the Court cannot grant summary judgment without

23 Defendants explaining how, as a matter of law, Defendants’ move did not violate the First 24 Amendment and RLUIPA and otherwise, was not “wrongful.” Accordingly, the Court denies 25 summary judgment as to Plaintiff’s First Amendment and RLUIPA claims. 1 2. Qualified Immunity 2 Defendants additionally argue that they are entitled to qualified immunity with respect to 3 Plaintiff’s religious claims. (See Defs.’ MSJ 10:20). “The doctrine of qualified 4 immunity protects government officials ‘from liability for civil damages insofar as their 5 conduct does not violate clearly established statutory or constitutional rights of which a 6 reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 7 808, 172 L. Ed. 2d 565 (2009) (citation omitted). “Qualified immunity gives government 8 officials breathing room to make reasonable but mistaken judgments about open legal 9 questions. When properly applied, it protects ‘all but the plainly incompetent or those who 10 knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. 11 Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)). “The purpose 12 of qualified immunity is to strike a balance between the competing ‘need to hold public 13 officials accountable when they exercise power irresponsibly and the need to shield officials 14 from harassment, distraction, and liability when they perform their duties reasonably.’” Mattos 15 v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (quoting Pearson, 555 U.S. at 231). 16 “In determining whether an officer is entitled to qualified immunity, we consider (1) 17 whether there has been a violation of a constitutional right; and (2) whether that right was 18 clearly established at the time of the officer’s alleged misconduct.” Lal v. California, 746 F.3d 19 1112, 1116 (9th Cir. 2014) (citing Pearson, 555 U.S. at 232). The plaintiff bears the burden of 20 proof on both factors. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002); Cruz v. Kauai 21 County, 279 F.3d 1064, 1069 (9th Cir. 2002). For a right to be clearly established, its contours 22 “must be sufficiently clear that a reasonable official would understand that what he is doing

23 violates that right.” Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 24 (2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 25 (1987)). 1 Plaintiff fails to meet his burden to show that Defendants violated a clearly established 2 right. Plaintiff, in response to Defendants’ raised defense of qualified immunity, presents a 3 new argument that Defendants restricted his access to Jumah services in retaliation for filing 4 grievances. (Pl.’s Resp. to Defs.’ MSJ at 5–6). Plaintiff, however, did not raise a claim of 5 retaliation in his initial Complaint. (See Compl., ECF No. 1); (see also Screening Order, ECF 6 No. 4). Even liberally construing Plaintiff’s response, Plaintiff fails to present the Court with 7 caselaw that would give Defendants notice that moving Plaintiff to administrative segregation 8 would violate his religious constitutional rights. Reichle v. Howards, 566 U.S. 658, 132 S. Ct. 9 2088, 2093, 182 L. Ed. 2d 985 (2012) (the “right must be sufficiently clear ‘that every 10 reasonable official would [have understood] that what he is doing violates that right.’”). 11 Because Plaintiff fails to meet his burden as to qualified immunity, the Court accordingly 12 grants summary judgment with respect to Plaintiff’s First Amendment and RLUIPA claims. 13 B. EIGHTH AMENDMENT 14 Plaintiff alleges that he was housed with Crip gang members while in administrative 15 segregation and Defendants, as such, failed to protect him in violation of the Eighth 16 Amendment. (Compl. ¶ 14); (Screening Order 8:3–9). Defendants argue that Plaintiff failed to 17 exhaust his Eighth Amendment claim because he did not file a grievance alleging that he was 18 facing threats from Crip gang members. (Defs.’ MSJ 7:9–19). In response, Plaintiff argues that 19 the Bed History Report reveals no names of prior cellmates because “there was a conspiracy to 20 have Bailey harmed.” (Pl.’s Resp. to Defs.’ MSJ at 19). 21 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought 22 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a

23 prisoner confined in any jail, prison, or other correctional facility until such administrative 24 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement in 25 prisoner cases is mandatory. Woodford v. Ngo, 548 U.S. 81, 84, 126 S. Ct. 2378, 165 L. Ed. 2d 1 368 (2006). Further, the PLRA requires “proper exhaustion” of administrative remedies. Id. at 2 93. Proper exhaustion “means that a grievant must use all steps the prison holds out, enabling 3 the prison to reach the merits of the issues.” Griffin v. Arpaio, 557 F.3d 1117, 1119-20 (9th Cir. 4 2009). 5 Courts should decide exhaustion before examining the merits of a prisoner’s claim. 6 Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). The defendant bears the initial burden to 7 show that there was an available administrative remedy, and that the prisoner did not exhaust it. 8 Id. at 1169, 1172. Once that showing is made, the burden shifts to the prisoner, who must 9 either demonstrate that he, in fact, exhausted administrative remedies or “come forward with 10 evidence showing that there is something in his particular case that made the existing and 11 generally available administrative remedies effectively unavailable to him.” Id. at 1172. The 12 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate if the 13 undisputed evidence, viewed in the light most favorable to the prisoner, shows a failure to 14 exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 15 Here, Defendants present a copy of the NDOC Administrative Regulation (“AR”) 740, 16 entitled “Inmate Grievance Procedure,” which catalogs the administrative remedies and 17 associated procedures available to NDOC inmates. (AR 740, Ex. I to Defs.’ MSJ, ECF No. 34). 18 In order for a plaintiff to exhaust available remedies, AR 740 first requires the inmate to discuss 19 the issue with a caseworker prior to initiating the grievance process. (AR 740.04 at 4). The 20 procedure then continues as follows: (1) an Informal Grievance; (2) a First Level Grievance 21 appealing the Informal Grievance decision to the warden; and (3) a Second Level Grievance, 22 which is decided by the Assistant Director of Operations. (AR 740.05-.07 at 4–9). “In the

23 event an inmate’s claim is deemed inappropriate for review or not within the intended scope of 24 this Regulation, the inmate may appeal that decision only to the next procedural level of 25 review.” (AR 740.03(5) at 3). “An inmate who is dissatisfied with the response to a grievance 1 at any level may appeal the grievance to the next level” within five days after the return of a 2 decision. (AR 740.03(6) at 3). 3 Here, Plaintiff did not file any grievances regarding his housing with Crips gang 4 members. (See Grievance History Report, Ex. J to Appendix, ECF No. 34-1). His grievances 5 concern the lack of non-sodium diet, denied access to the law library, denied access to the 6 institutional chapel, property damages from water leaks, and lack of hot water. (Id. at 11). 7 Accordingly, the Court finds that Plaintiff failed to exhaust his administrative remedies and 8 grants summary judgment in favor of Defendants with respect to Plaintiff’s Eighth Amendment 9 conditions of confinement claim.4 5 10 C. FOURTEENTH AMENDMENT 11 Lastly, Plaintiff alleges that Defendants placed him in administrative segregation 12 without review of the evidence and thus, without justification to segregate him from the general 13 population. (Compl. at 4(b)–4(c)). Plaintiff additionally alleges that he did not receive periodic 14 reviews while he was in administrative segregation, in violation of the Fourteenth Amendment. 15 (Id. at 4(b)). Contrary to Plaintiff’s allegations, Defendants argue that NDOC records show 16 that Plaintiff received periodic review of his placement. (Defs.’ MSJ 9:5–10:18). 17 Under the Fourteenth Amendment, prisoners “may not be deprived of life, liberty, or 18 property without due process of law.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 19 41 L. Ed. 2d 935 (1974). However, “the fact that prisoners retain rights under the Due Process 20 Clause in no way implies that these rights are not subject to restrictions imposed by the nature 21 22 4 Plaintiff also asserts that he sought his ex-cellmates names and gang status; however, was denied access during the discovery phase by Defendants “because of the inferences that can be drawn by the Court.” (Pl.’s Resp. to 23 Defs.’ MSJ at 19). Plaintiff, however, does not provide any additional evidence demonstrating that he requested such information. Nevertheless, the Court grants summary judgment as to Plaintiff’s Eighth Amendment claim 24 because Plaintiff’s Grievance History Report illustrates that Plaintiff failed to exhaust all administrative remedies. (See generally Grievance History Report). 25 5 Because the Court grants summary judgment for exhaustion of administrative remedies, the Court does not further analyze Defendant’s alternative argument of qualified immunity. 1 of the regime to which they have been lawfully committed.” Id. “[T]here must be mutual 2 accommodation between institutional needs and objectives and the provisions of the 3 Constitution that are of general application.” Id. The Supreme Court held that a prisoner 4 possesses a liberty interest under the federal constitution when a change occurs in confinement 5 that “imposes atypical and significant hardship on the inmate in relation to the ordinary 6 incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 7 2d 418 (1995). 8 When a prisoner is placed in administrative segregation, prison officials must, within a 9 reasonable time after the prisoner’s placement, conduct an informal, non-adversary review of 10 the evidence justifying the decision to segregate the prisoner. See Hewitt v. Helms, 459 U.S. 11 460, 476, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), abrogated in part on other grounds 12 by Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). After the 13 prisoner has been placed in administrative segregation, prison officials must periodically 14 review the initial placement. See id. at 477 n.9. The Ninth Circuit has held that where the 15 prisoner alleges material differences between the conditions in general population 16 and administrative segregation, the prisoner’s procedural due process claim should not be 17 dismissed on the pleadings. See Jackson v. Carey, 353 F.3d 750, 755-57 (9th Cir. 2003). 18 Here, Defendant provides a copy of Plaintiff’s Case Note Printout Report (“Report”), 19 which catalogues the history of Plaintiff’s reviews from 2016 to 2017. (See Case Notes, Ex. G 20 to Appendix, ECF No. 34). Defendants reported meeting with Plaintiff on January 29, 2016— 21 two days after Defendants moved Plaintiff to administrative segregation—to explain Plaintiff’s 22 move to administrative segregation. (Id.). The Report specifically states that Plaintiff “was

23 informed that an FCC will be conducted at the conclusion of his investigation and that he 24 would receive 48 hour notice prior to the FCC. Inmate stated he had no concerns at this time.” 25 (See id.). Plaintiff further received four (4) reviews while in administrative segregation on 1 April 21, 2016; June 7, 2016; November 8, 2016; and November 30, 2016. (See id.). As the 2 Report demonstrates, Defendants explained to Plaintiff why he was moved to administrative 3 segregation and further provided periodic reviews while Plaintiff was in administrative 4 segregation. Plaintiff does not provide additional justification demonstrating that he was 5 entitled to more detailed notice. See Zimmerlee v. Keeney, 831 F.2d 183, 188 (9th Cir.1987) 6 (“Wolff provides little guidance as to the specificity of notice necessary to satisfy due 7 process.”). The evidence provided reflects that Defendants legally moved Plaintiff to 8 administrative segregation based on HDSP policy and the confidential PREA complaint. 9 Plaintiff’s allegation that he failed to receive notice and proper review thus does not survive 10 summary judgment review. Accordingly, the Court grants Defendants’ Motion for Summary 11 Judgment.6 12 IV. CONCLUSION 13 IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment, (ECF 14 No. 28), is GRANTED. 15 IT IS FURTHER ORDERED that Defendants’ Motion to Seal, (ECF No. 35), is 16 GRANTED. 17 DATED this __8___ day of March, 2022. 18 19 ___________________________________ Gloria M. Navarro, District Judge 20 UNITED STATES DISTRICT COURT 21 22 23 24

25 6 Because the Court grants summary judgment as to Plaintiff’s Fourteenth Amendment claim, the Court does not further analyze Defendant’s alternative argument of qualified immunity.