Edward Furnace v. M.S. Evans

FILED
NOT FOR PUBLICATION NOV 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDWARD TERRAN FURNACE, No. 09-16983
Plaintiff - Appellant, D.C. No. 3:06-cv-04229-MMC
v.
MEMORANDUM *
M. S. EVANS; ANTHONY HEDGPETH;
G. PONDER; J. CELAYA; M. NILSSON;
T.A. VARIZ; E. MEDINA; K.
KNUCKLES; D. VEGA; S.
MCDONALD; J. RODRIGUEZ,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Argued and Submitted November 17, 2011
San Francisco, California
Before: HAWKINS, McKEOWN, and M. SMITH, Circuit Judges.
Edward Furnace (“Furnace”), a California state prisoner, appeals the district
court’s summary judgment in this 42 U.S.C. § 1983 action naming various prison
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
officials as defendants. Furnace alleges that his constitutional rights were violated
when prison officials restricted him to conditions similar to solitary confinement
and denied him outdoor activity and exercise for twenty consecutive months.
Prison officials insisted that Furnace sign a pledge form renouncing violence as a
condition for ending his cell confinement, and he repeatedly refused. The
lockdown was precipitated by a state of emergency because of the attempted
murder of two correctional officers by another inmate. The district court found
that defendants did not violate Furnace’s First or Eighth Amendment rights, or his
due process rights, and granted summary judgment in favor of the prison official
defendants.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the
district court’s order granting summary judgment. Hauk v. JP Morgan Chase Bank
USA, 552 F.3d 1114, 1117 (9th Cir. 2009).
The outcome of the Eighth Amendment claims is controlled by Thomas v.
Ponder, 611 F.3d 1144 (2010). Thomas was decided on substantially similar facts
arising from the same correctional facility. Given the timing, the district court did
not have the benefit of the Thomas decision before granting summary judgment
here. Under Thomas, Furnace has established a genuine issue of material fact
-2-
regarding an Eighth Amendment violation We therefore reverse and remand for
reconsideration of Furnace’s Eighth Amendment claims in light of Thomas.
The second issue is whether the district court applied the proper test to
evaluate the lawfulness of Furnace’s First Amendment retaliation claim. The
Supreme Court’s Turner test, Turner v. Safely, 482 U.S. 78, 89–91 (1987), is the
proper test. It was error not to apply Turner here because the real issue was not
retaliation against a particular inmate but rather the validity of general prison
policy applied to all inmates in Facility C. A constitutional challenge to a prison
policy is an inquiry best conducted under the four-part Turner test. Thus, we
remand for an application of the Turner test to determine the validity of the
challenged prison policy of requiring inmates to sign a pledge before being
returned to a normal program.
Finally, we affirm the district court’s grant of summary judgment on
Furnace’s due process claims. The record includes a long paper trail documenting
Furnace’s efforts to appeal and to challenge various aspects of his confinement
under the modified program. The district court found that a genuine emergency
existed during the entire disputed period, and it concluded that Furnace “was not
entitled to a hearing with respect to his placement and continued retention on
modified program status.” We agree.
-3-
The prison officials argue that even if Furnace were to establish a
constitutional violation, they are entitled to qualified immunity. “Here, we do not
reach qualified immunity because the issue has never been addressed by the district
court.” Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010).
REVERSED and REMANDED with direction to reconsider Furnace’s
Eighth Amendment claims in light of the decision in Thomas, to apply the Turner
test in evaluating Furnace’s First Amendment claims, and to consider defendants’
qualified immunity defense. We AFFIRM the grant of summary judgment for
defendants on Furnace’s due process claims.
Each party shall bear its own costs on appeal.
-4-