NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 4 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL MCNEIL, No. 24-2733 D.C. No. Plaintiff - Appellee, 2:18-cv-01594-RFB-BNW v. MEMORANDUM* DAVE MOLNAR, Investigator General; WILLIAM GLASS, Sergeant; DWIGHT NEVEN, Warden; QUENTIN BYRNE, Deputy Director,
Defendants - Appellants,
and
ATTORNEY GENERAL OF THE STATE OF NEVADA,
Defendant.
Appeal from the United States District Court for the District of Nevada Richard F. Boulware, II, District Judge, Presiding
Argued and Submitted March 6, 2025 Las Vegas, Nevada
Before: RAWLINSON, MILLER, and DESAI, Circuit Judges. Dissent by Judge MILLER.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appellants Dave Molnar, William Glass, Dwight Neven, and Quentin Byrne
(collectively, Appellants) appeal the district court’s denial of qualified immunity in
a § 1983 action brought by Appellee Michael McNeil (McNeil), a prisoner
incarcerated within the Nevada Department of Corrections (NDOC). McNeil
asserts due process violations arising from a disciplinary hearing. McNeil
principally alleges that Glass, who presided over the hearing, did not permit him to
call a witness during the hearing. The district court determined that (1) McNeil
had a liberty interest in avoiding disciplinary segregation, (2) genuine disputes of
material fact existed as to whether Appellants violated McNeil’s due process
rights, and (3) McNeil’s right to call witnesses at the hearing was clearly
established. We have jurisdiction to review the denial of qualified immunity
pursuant to 28 U.S.C. § 1291, and we affirm.
“We review the district court’s conclusions regarding qualified immunity de
novo and consider all disputed facts in the light most favorable to the nonmoving
party. . . .” Williams v. City of Sparks, 112 F.4th 635, 642 (9th Cir. 2024) (citation
and internal quotation marks omitted). Prison officials are entitled to qualified
immunity “unless the plaintiff raises a genuine issue of fact showing (1) a violation
of a constitutional right, and (2) that the right was clearly established at the time of
the defendant’s alleged misconduct.” Alexander v. Nguyen, 78 F.4th 1140, 1144
(9th Cir. 2023) (citation, alterations, and internal quotation marks omitted).
2 24-2733 1. Prisoners are entitled to due process protections during disciplinary
hearings, but “procedural protections adhere only where the deprivation implicates
a protected liberty interest.” Brown v. Oregon Dep’t of Corr., 751 F.3d 983, 987
(9th Cir. 2014). Inmates have a liberty interest in avoiding certain conditions of
confinement “if the challenged condition imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” Ashker v.
Newsom, 81 F.4th 863, 887 (9th Cir. 2023) (citation and internal quotation marks
omitted). We look to three considerations in determining whether conditions are
atypical and significant:
1) whether the challenged condition mirrored those conditions imposed upon inmates in administrative segregation and protective custody, and thus comported with the prison’s discretionary authority; 2) the duration of the condition and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence.
Id. (citation omitted).
McNeil has a liberty interest in avoiding the conditions of disciplinary
segregation because the conditions imposed were atypical and significant when
compared to administrative segregation at the prison. McNeil alleges that he was
housed in solitary confinement 23 hours per day, was not allowed any visitation for
one year, and was allowed out of his cell only for three showers per week, medical
appointments, and hearings, among other conditions. By contrast, inmates in
Administrative Segregation are allowed contact visits and a minimum of seven
3 24-2733 hours of exercise per week. McNeil was sentenced to disciplinary segregation for
24 months but was released from segregation after eight months, following reviews
of his sentence.
The conditions McNeil faced are analogous to the conditions faced by the
inmate in Brown, who was housed in solitary confinement for “more than twenty-
three hours per day,” denied interpersonal contact, and denied access to the prison
and law libraries, group religious worship, and educational opportunities, among
other restrictions. 751 F.3d at 985. McNeil’s visitation conditions were even more
restrictive than those in Brown because McNeil was not allowed any visitors for
one year, while the inmate in Brown received “two non-contact visits per month.”
Id. at 985. Taken together, and compared to administrative segregation at the
prison, McNeil’s loss of all visitation rights and the other restrictive conditions of
his solitary confinement implicated a liberty interest. See id. at 988. Accordingly,
procedural due process protections adhered to McNeil’s disciplinary hearing. See
id. at 987.1
2. As discussed, McNeil had a due process right to call a witness to
effectively present his defense. See Wolff v. McDonnell, 418 U.S. 539, 566 (1976).
1 Our dissenting colleague would distinguish Brown as clearly established precedent. However, to be clearly established, precedent need not be “on all fours with the facts at issue.” Bird v. Dzurenda, 131 F.4th 787, 790 (9th Cir. 2025) (citation and internal quotation marks omitted).
4 24-2733 Glass violated this right by not permitting McNeil to question the witness at the
hearing. The fact that Glass questioned the witness is insufficient to satisfy due
process because McNeil should have been afforded the opportunity to question the
witness himself. See Melnik v. Dzurenda, 14 F.4th 981, 986 (9th Cir. 2021).
Prisoners do not have an unfettered right to call witnesses, and prison officials may
limit that right if they proffer a “legitimate penological reason.” Id. (citation
omitted). But Glass proffered no legitimate penological reason for depriving
McNeil of the opportunity to personally question his desired witness.
Additionally, McNeil alleged that Molnar withheld requested evidence and
directed Glass to find him guilty. See id. at 986–97. McNeil also asserts that
during the appeals process, Neven and Byrne both ratified Glass’s unconstitutional
conduct by affirming the discipline imposed, in violation of McNeil’s due process
rights. These allegations support a conclusion that McNeil’s due process rights
were violated. See Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 798 (9th Cir.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 4 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL MCNEIL, No. 24-2733 D.C. No. Plaintiff - Appellee, 2:18-cv-01594-RFB-BNW v. MEMORANDUM* DAVE MOLNAR, Investigator General; WILLIAM GLASS, Sergeant; DWIGHT NEVEN, Warden; QUENTIN BYRNE, Deputy Director,
Defendants - Appellants,
and
ATTORNEY GENERAL OF THE STATE OF NEVADA,
Defendant.
Appeal from the United States District Court for the District of Nevada Richard F. Boulware, II, District Judge, Presiding
Argued and Submitted March 6, 2025 Las Vegas, Nevada
Before: RAWLINSON, MILLER, and DESAI, Circuit Judges. Dissent by Judge MILLER.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appellants Dave Molnar, William Glass, Dwight Neven, and Quentin Byrne
(collectively, Appellants) appeal the district court’s denial of qualified immunity in
a § 1983 action brought by Appellee Michael McNeil (McNeil), a prisoner
incarcerated within the Nevada Department of Corrections (NDOC). McNeil
asserts due process violations arising from a disciplinary hearing. McNeil
principally alleges that Glass, who presided over the hearing, did not permit him to
call a witness during the hearing. The district court determined that (1) McNeil
had a liberty interest in avoiding disciplinary segregation, (2) genuine disputes of
material fact existed as to whether Appellants violated McNeil’s due process
rights, and (3) McNeil’s right to call witnesses at the hearing was clearly
established. We have jurisdiction to review the denial of qualified immunity
pursuant to 28 U.S.C. § 1291, and we affirm.
“We review the district court’s conclusions regarding qualified immunity de
novo and consider all disputed facts in the light most favorable to the nonmoving
party. . . .” Williams v. City of Sparks, 112 F.4th 635, 642 (9th Cir. 2024) (citation
and internal quotation marks omitted). Prison officials are entitled to qualified
immunity “unless the plaintiff raises a genuine issue of fact showing (1) a violation
of a constitutional right, and (2) that the right was clearly established at the time of
the defendant’s alleged misconduct.” Alexander v. Nguyen, 78 F.4th 1140, 1144
(9th Cir. 2023) (citation, alterations, and internal quotation marks omitted).
2 24-2733 1. Prisoners are entitled to due process protections during disciplinary
hearings, but “procedural protections adhere only where the deprivation implicates
a protected liberty interest.” Brown v. Oregon Dep’t of Corr., 751 F.3d 983, 987
(9th Cir. 2014). Inmates have a liberty interest in avoiding certain conditions of
confinement “if the challenged condition imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” Ashker v.
Newsom, 81 F.4th 863, 887 (9th Cir. 2023) (citation and internal quotation marks
omitted). We look to three considerations in determining whether conditions are
atypical and significant:
1) whether the challenged condition mirrored those conditions imposed upon inmates in administrative segregation and protective custody, and thus comported with the prison’s discretionary authority; 2) the duration of the condition and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence.
Id. (citation omitted).
McNeil has a liberty interest in avoiding the conditions of disciplinary
segregation because the conditions imposed were atypical and significant when
compared to administrative segregation at the prison. McNeil alleges that he was
housed in solitary confinement 23 hours per day, was not allowed any visitation for
one year, and was allowed out of his cell only for three showers per week, medical
appointments, and hearings, among other conditions. By contrast, inmates in
Administrative Segregation are allowed contact visits and a minimum of seven
3 24-2733 hours of exercise per week. McNeil was sentenced to disciplinary segregation for
24 months but was released from segregation after eight months, following reviews
of his sentence.
The conditions McNeil faced are analogous to the conditions faced by the
inmate in Brown, who was housed in solitary confinement for “more than twenty-
three hours per day,” denied interpersonal contact, and denied access to the prison
and law libraries, group religious worship, and educational opportunities, among
other restrictions. 751 F.3d at 985. McNeil’s visitation conditions were even more
restrictive than those in Brown because McNeil was not allowed any visitors for
one year, while the inmate in Brown received “two non-contact visits per month.”
Id. at 985. Taken together, and compared to administrative segregation at the
prison, McNeil’s loss of all visitation rights and the other restrictive conditions of
his solitary confinement implicated a liberty interest. See id. at 988. Accordingly,
procedural due process protections adhered to McNeil’s disciplinary hearing. See
id. at 987.1
2. As discussed, McNeil had a due process right to call a witness to
effectively present his defense. See Wolff v. McDonnell, 418 U.S. 539, 566 (1976).
1 Our dissenting colleague would distinguish Brown as clearly established precedent. However, to be clearly established, precedent need not be “on all fours with the facts at issue.” Bird v. Dzurenda, 131 F.4th 787, 790 (9th Cir. 2025) (citation and internal quotation marks omitted).
4 24-2733 Glass violated this right by not permitting McNeil to question the witness at the
hearing. The fact that Glass questioned the witness is insufficient to satisfy due
process because McNeil should have been afforded the opportunity to question the
witness himself. See Melnik v. Dzurenda, 14 F.4th 981, 986 (9th Cir. 2021).
Prisoners do not have an unfettered right to call witnesses, and prison officials may
limit that right if they proffer a “legitimate penological reason.” Id. (citation
omitted). But Glass proffered no legitimate penological reason for depriving
McNeil of the opportunity to personally question his desired witness.
Additionally, McNeil alleged that Molnar withheld requested evidence and
directed Glass to find him guilty. See id. at 986–97. McNeil also asserts that
during the appeals process, Neven and Byrne both ratified Glass’s unconstitutional
conduct by affirming the discipline imposed, in violation of McNeil’s due process
rights. These allegations support a conclusion that McNeil’s due process rights
were violated. See Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 798 (9th Cir.
2018) (explaining that supervisors may be liable for their “acquiescence in the
constitutional deprivation”).
3. McNeil’s right to call a witness at his disciplinary hearing and present
evidence was clearly established by Wolff, 418 U.S. at 566 and Mitchell v. Dupnik,
75 F.3d 517, 525 (9th Cir. 1996). Accordingly, the district court properly denied
qualified immunity. See Melnik, 14 F.4th at 990.
5 24-2733 AFFIRMED.
6 24-2733 FILED SEP 4 2025 McNeil v. Molnar, et al., No. 24-2733 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MILLER, Circuit Judge, dissenting:
Michael McNeil, a Nevada prison inmate, alleges that his disciplinary
proceeding deprived him of due process. But it was not clearly established that the
eight months of disciplinary segregation that he served as a result of that
proceeding gave rise to a protected liberty interest. For that reason, the defendant
officers were entitled to qualified immunity, and I would reverse the district court’s
decision denying their motion for summary judgment.
“The first inquiry in every due process challenge is whether the plaintiff has
been deprived of a protected interest in ‘property’ or ‘liberty.’” American Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (quoting U.S. Const. amend. XIV,
§ 1). An inmate can bring a due process claim based on a disciplinary proceeding
“only where the deprivation implicates a protected liberty interest—that is, where
the conditions of confinement impose an ‘atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.’” Brown v. Oregon Dep’t
of Corr., 751 F.3d 983, 987 (9th Cir. 2014) (quoting Sandin v. Conner, 515 U.S.
472, 484 (1995)). “[T]here ‘is no single standard’ for determining when
circumstances are atypical and significant.” Ashker v. Newsom, 81 F.4th 863, 887
(9th Cir. 2023) (quoting Johnson v. Ryan, 55 F.4th 1167, 1195 (9th Cir. 2022)). To overcome qualified immunity, McNeil must show not only that the
defendants violated his due-process right but also that the right was clearly
established at the time. See Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). And that
clearly established right must not be defined “at a high level of generality.” Id.
McNeil has identified no case that is “‘particularized’ to the facts of” his
disciplinary segregation that clearly establishes that its conditions were atypical
and significant. White v. Pauly, 580 U.S. 73, 79 (2017) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). He argues that Brown does the job. 751 F.3d
983. He points out that the inmate in that case, like him, was punished with more
than 23 hours a day of solitary confinement and with removal of most privileges.
See id. at 988. But in Brown, we declined to resolve whether those same features,
which “might apply to most solitary-confinement facilities,” were atypical and
significant. Id. Instead, it was “the duration of Brown’s confinement”—27 months
with no periodic review—that was the “crucial factor.” Id. Although McNeil was
sanctioned with 24 months of disciplinary segregation, it is undisputed that he
ultimately spent less than eight months in that form of confinement and that his
sanction was reviewed twice during that period. Given our reliance in Brown on
the duration of disciplinary segregation and the lack of review, that case did not
clearly establish that segregation that lasts less than a third as long, combined with
periodic review, gives rise to a protected liberty interest.
2 Because the existence of McNeil’s protected liberty interest was not clearly
established at the time of the defendants’ alleged violations, I would hold that the
defendants are entitled to qualified immunity.