Tobias Frank v. Derrick Schultz , 808 F.3d 762 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOBIAS A. FRANK, No. 14-55890
Plaintiff-Appellant,
D.C. No.
v. 5:12-cv-01848-
JAK-SS
DERRICK SCHULTZ, Correctional
Counselor, individually and in
official capacity; R. BYRD, OPINION
Disciplinary Hearing Officer,
individually and in official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted November 18, 2015*
San Francisco, California
Filed December 14, 2015
Before: A. Wallace Tashima, John B. Owens,
and Michelle T. Friedland, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 FRANK V. SCHULTZ
SUMMARY**
Prisoner Civil Rights
The panel affirmed the district court’s summary judgment
in favor of prison officials in an action brought by a federal
prisoner pursuant to Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff alleged, among other things, that he had been
deprived of due process because he had not received
advanced written notice of modified disciplinary charges
brought against him. The panel held that the district court
properly granted summary judgment on plaintiff’s due
process claim because any procedural error was corrected
through the administrative appeal process, and plaintiff
ultimately did not lose any good time credits.
COUNSEL
Tobias A. Frank, Fairton, New Jersey, pro se Plaintiff-
Appellant.
Stephanie Yonekura, Acting United States Attorney; Leon W.
Weidman, Assistant United States Attorney, Chief, Civil
Division; and David Pinchas, Assistant United States
Attorney, Los Angeles, California, for Defendants-Appellees.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FRANK V. SCHULTZ 3
OPINION
PER CURIAM:
Federal prisoner Tobias A. Frank appeals pro se from the
district court’s summary judgment in his action under Bivens
v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), alleging First and Fourteenth
Amendment violations.1 We have jurisdiction under
28 U.S.C. § 1291. We review de novo. Nunez v. Duncan,
591 F.3d 1217, 1222 (9th Cir. 2010). We affirm.
This action arises from Frank signing as a “witness”
another inmate’s document, which Correctional Counselor
Derek Schultz believed was contraband under prison policy.2
As a result, Schultz issued Frank an incident report charging
him with “Possession of Anything Unauthorized.”
Disciplinary Hearing Officer Rosie Byrd conducted a
disciplinary hearing, found that Frank had committed
“Conduct which Interferes with the Security or Orderly
Running of the Institution” (a different charge), and
sanctioned Frank with the loss of fourteen days of good time
credits.3 However, Frank filed a successful administrative
1
We address Frank’s First Amendment retaliation claim in a
concurrently filed memorandum disposition.
2
The prison policy was based on a part of the Court Security
Improvement Act, 18 U.S.C. § 1521, which prohibits filing or attempting
to file false liens against federal employees.
3
Frank was also sanctioned with the loss of commissary and visitation
rights for three months. Because Frank does not raise this loss in his
opening brief, he has waived the issue. See Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (“[I]ssues which are
4 FRANK V. SCHULTZ
appeal, and ultimately the incident report was removed from
his file and his credits were restored. Frank then filed the
instant action alleging that he had been deprived of due
process because, among other things, Frank had not received
advance written notice that Byrd was modifying the charge.
The district court properly granted summary judgment on
Frank’s due process claim because, as our sister circuits have
recognized, any procedural error was corrected through the
administrative appeal process, and Frank ultimately did not
lose any good time credits. See Wycoff v. Nichols, 94 F.3d
1187, 1189 (8th Cir. 1996) (“[T]he [administrative] reversal
of the case against Wycoff constituted part of the due process
Wycoff received, and it cured the alleged due process
violation based on the [prison] disciplinary committee’s
initial decision to sanction Wycoff.”); Morrisette v. Peters,
45 F.3d 1119, 1122 (7th Cir. 1995) (per curiam) (“There is no
denial of due process if the error the inmate complains of is
corrected in the administrative appeal process. The
administrative appeal process is part of the due process
afforded prisoners.” (citation omitted)); Young v. Hoffman,
970 F.2d 1154, 1156 (2d Cir. 1992) (per curiam) (“[W]e need
not decide whether Young suffered a denial of due process in
connection with his disciplinary hearing, because . . . [t]he
administrative reversal constituted part of the due process
not specifically and distinctly argued and raised in a party’s opening brief
are waived.”).
FRANK V. SCHULTZ 5
protection he received, and it cured any procedural defect that
may have occurred.”).4
AFFIRMED.
4
See also Torricellas v. Poole, 954 F. Supp. 1405, 1414 (C.D. Cal.
1997) (“Where a procedural error has been corrected in the administrative
process, as it was here, there has been no compensable due process
violation. The administrative appeal is considered part of the process
afforded, and any error in the process can be corrected during that appeals
process without necessarily subjecting prison officials to liability for
procedural violations at lower levels.”), aff’d, 141 F.3d 1179 (9th Cir.
1998) (unpublished) (affirming for the reasons stated by the district court).