Hunter v. Estee , 363 F. App'x 538 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEMONDZA HUNTER, No. 06-56431
Plaintiff - Appellant, D.C. No. CV-01-02212-RTB
v.
MEMORANDUM *
D. ESTEE, Correctional Officer; S.
CANDALOT, Assistant Appeals
Coordinator; S. H. GARCIA, Chief
Deputy Warden; G. GALAZA, Warden,
Corcoran State Prison; JANE DOE,
Appeals Coordinator, Calipatria State
Prison; JOHN DOE, I, Appeals
Coordinator, Corcoran State Prison; R. H.
HOUSTON, Chief Deputy Warden,
Calipatria State Prison; H. E. FAST; D.
EDWARDS; MIKE CORBIN, Appeals
Coordinator; BRAD STREETER Appeals
Coordinator; DARIO BRAVO, Appeals
Coordinator,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted January 14, 2010
Pasadena, California
Before: SCHROEDER, CANBY and McKEOWN, Circuit Judges.
Demondza Hunter appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 action. The district court found that Hunter did not have a constitutionally
protected liberty interest in avoiding confinement in the Segregated Housing Unit
(“SHU”) at Corcoran State Prison. The district court further found that even if
such a liberty interest existed, Hunter’s successful administrative appeal “cured”
this error. The district court dismissed Hunter’s other claims as well, and denied
Hunter’s request to file an untimely summary judgment brief. We reverse and
remand for further proceedings.
We review a grant of summary judgment de novo. United States v. City of
Tacoma, 332 F.3d 574, 578 (9th Cir. 2003). We review a district court’s denial of
an extension of time for abuse of discretion. United States v. Nguyen, 262 F.3d
998, 1002 (9th Cir. 2001).
The district court correctly noted that the prison’s failure to accommodate
Hunter’s allergy and disability do not, standing alone, give rise to a liberty interest.
Serrano v. Francis, 345 F.3d 1074, 1078-79 (9th Cir. 2003). The district court’s
determination that Hunter did not have a liberty interest in avoiding confinement in
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the SHU was based principally upon its interpretation of Wilkinson v. Austin, 545
U.S. 209 (2005). The district court observed that the inmates at Ohio State
Penitentiary (“OSP”) had a liberty interest in that case in avoiding conditions that
were more severe than those in “most solitary confinement facilities.” Id. at 224.
The district court distinguished Wilkinson from this case because placement in
OSP was indefinite, subject only to annual review, and OSP inmates were not
eligible for parole. See id.The district court apparently assumed that placement in the SHU was not
indefinite and was subject to more frequent review. Yet the fact that Hunter spent
over 200 days in the SHU after he was ordered released indicates that prison
procedures for reviewing placement were inadequate. Thus, Hunter’s placement in
the SHU was as a practical matter as indefinite as the placement in Wilkinson. See
id.The district court also distinguished Wilkinson on the ground that in
Wilkinson OSP inmates were disqualified from parole consideration. The record is
unclear, however, as to whether prison officials restored Hunter’s good time
credits, and whether the six months he spent in the SHU after he was ordered
released increased the overall length of his incarceration.
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In finding that Hunter’s successful administrative appeals “cured” any due
process errors he may have suffered, the district court relies on what was for
Hunter a Pyrrhic victory. Hunter served six months in the SHU after his successful
administrative appeal, and thus his successful appeal did not remedy anything.
On remand the district court should re-evaluate whether the prison’s failure
to ensure proper placement of Hunter “impose[d an] atypical and significant
hardship on [Hunter] in relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484 (1995). The district court should also determine to
what extent, if any, Hunter’s stay in the SHU affected the length of his sentence.
Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003).
The district court erred dismissing Hunter’s retaliation claim. The State did
not move for summary judgment on this issue, and concedes the district court erred
with respect to it. The State also agrees that because of the Federal retaliation
claim the district court should not have dismissed Hunter’s state law claim for lack
of jurisdiction. See 28 U.S.C. § 1367.
In light of our holding, we need not address whether the district court erred
in denying Hunter, a pro se prisoner before the district court, an extension to file
supplemental pleadings. We assume that further proceedings and a new briefing
schedule on remand will cure any alleged error.
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REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
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