Rafael Mora-Contreras v. Colette Peters ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL MORA-CONTRERAS; SHANE No. 20-35476
STAGGS,
D.C. No. 6:18-cv-00678-SB
Plaintiffs-Appellants,
v. MEMORANDUM*
COLETTE PETERS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Stacie F. Beckerman, Magistrate Judge, Presiding
Submitted June 10, 2021**
Portland, Oregon
Before: WARDLAW, TALLMAN, and HURWITZ, Circuit Judges.
Rafael Mora-Contreras and Shane Staggs (Plaintiffs) appeal from the district
court’s judgment dismissing their 42 U.S.C. § 1983 claims against various Oregon
Department of Corrections employees. We have jurisdiction pursuant to 28 U.S.C.
*
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).
§ 1291, and we affirm.
1. The district court properly dismissed Plaintiffs’ Fifth Amendment due
process claims. Transfer to a segregation unit implicates a protected liberty
interest only if the conditions in the unit “impose[] atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin
v. Conner, 515 U.S. 472, 484 (1995). This context- and fact-specific inquiry
requires comparing the conditions in the segregation unit to the conditions in
general population within the specific prison. See Keenan v. Hall, 83 F.3d 1083,
1089 (9th Cir. 1996). Here, the operative second amended complaint does not
allege any facts about the conditions in general population or that conditions in the
segregation units arise to an “atypical and significant hardship” relative to the
general population. See Resnick v. Hayes, 213 F.3d 443, 445 n.3, 448–49, (9th Cir.
2000) (finding no protected liberty interest where complaint did not allege that
conditions were worse in the SHU than in administrative segregation or general
population).
Plaintiffs also do not allege that they were denied the procedural protections
described in Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974). Plaintiffs do
allege facts that could support a fabrication of evidence claim under Devereaux v.
Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001), but without first establishing a
protected liberty interest, the fabrication of the evidence claim fails. See Costanich
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v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1115 (9th Cir. 2010) (deliberately
fabricating evidence violates due process “during civil investigations which could
result in the deprivation of protected liberty or property interests” (emphasis
added)).
2. The district court properly dismissed Plaintiffs’ Eighth Amendment
claims. Plaintiffs assert that extended solitary confinement is inherently cruel and
unusual punishment under the Eighth Amendment. This argument is contrary to
the law of the Supreme Court and this circuit. See e.g., Hutto v. Finney, 437 U.S.
678, 686–88 (1978); Davis v. Ayala, 576 U.S. 257, 289–90 (2015) (Kennedy, J.,
concurring); Anderson v. Cnty. of Kern, 45 F.3d 1310, 1316 (9th Cir.), opinion
amended on denial of reh’g, 75 F.3d 448 (9th Cir. 1995).
3. The district court properly found that the defendants were entitled to
qualified immunity on Plaintiffs’ First Amendment compelled speech and
retaliation claims. Plaintiffs allege that their First Amendment rights not to be
compelled to inform or falsely testify were violated, and that they were unlawfully
retaliated against for exercising those rights. See Rhodes v. Robinson, 408 F.3d
559, 567–68 (9th Cir. 2005) (explaining the elements of a First Amendment
retaliation claim in the prison context). But those rights were not established in
any circuit at the time of the alleged incidents, and still are not established in our
circuit. See Burns v. Martuscello, 890 F.3d 77, 81, 93 (2d Cir. 2018) (establishing,
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as a matter of first impression, that “the First Amendment protects both a
prisoner’s right not to serve as an informant, and to refuse to provide false
information to prison officials,” but noting that “neither the Supreme Court nor any
other circuit court” had previously found those rights exist).
AFFIRMED.
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