1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

In his opposition, Plaintiff stated he had been temporarily transferred to another 1

institution and was not in possession of his legal documents. He requested the court not rule on

the pending motion until he was reunited with all of his legal documents. Prior to the court

addressing the motion for summary judgment, Plaintiff was returned to Pelican Bay and reunited

with his legal documents. Thereafter, Plaintiff filed his motion for summary judgment, which

appears to be more of an opposition than a cross-motion. The undersigned finds it appropriate to

address both motions together. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

LIONELL THOLMER,

Plaintiff, No. CIV S-04-1368 GEB CMK P

vs.

CHERYL K. PLILER, et al.,

Defendants FINDINGS & RECOMMENDATIONS

 /

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

to 42 U.S.C. § 1983. Pending before the court is Defendants’ motion for summary judgment

(Doc. 127). Plaintiff filed an opposition to the motion (Doc. 141), and Defendants filed a reply 1

(Doc. 146, 147). Plaintiff also filed a motion for summary judgment (Doc. 154, 155), to which

Defendants filed an opposition (Doc. 156). 

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 1 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Plaintiff disputes the veracity of the reason, but does not dispute that was the 2

reason provided on the form.

2

I. BACKGROUND

A. Plaintiff’s Allegations

This action proceeds on Plaintiff’s third amended complaint (Doc. 91). Plaintiff

claims that his First and Fourteenth Amendment rights have been violated by the Defendants’

actions in retaining him in administrative segregation. Plaintiff claims the Defendants refused to

allow him to call witnesses and present evidence at his retention hearing, and acted in retaliation

for litigating against official corruption.

B. Undisputed Facts

In April 2003, Plaintiff was incarcerated in California State Prison Sacramento

(SAC). He is a level four prisoner who has been housed on the Sensitive Needs Yard (SNY) since

August 2000. On April 16, 2003, inmate Lyons threatened Plaintiff because Lyons believed

Plaintiff had told the control officer that Lyons had failed to clean the showers. Plaintiff

overheard Lyons tell inmate Wagner that Plaintiff had “committed suicide” by snitching on him. 

On April 17, 2003, Plaintiff reported to Sergeant Williams that Lyons had made threats against

Plaintiff’s life and to assault Officer Grady, but Plaintiff was not sure about how serious Lyons’s

threats were. Plaintiff was interviewed that day by Officer Hodgkins of the Investigative Services

Unit (ISU) about the threats he reported Lyons had made against Officer Grady and himself. 

That same day, April 17, 2003, Plaintiff was placed in administrative segregation

(Ad/Seg) by Lieutenant Banks. The reason provided on the CDC 114-D form was due to safety of

self or others and institutional security. Plaintiff acknowledges receiving a copy of this form. On 2

April 18, 2003, Captain Mayfield met with Plaintiff in Ad/Seg and reviewed the order, which

Plaintiff refused to sign because he disagreed with the allegations made and the actions taken. 

/ / /

/ / /

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 2 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Plaintiff disputes this statement not for the factual content, but due to his position 3

that the defendants created the enemy situation at Folsom to keep him from being housed there. 

He does not dispute the fact that he could not be housed safely at any of the States’ SNY.

3

On April 23, 2003, Plaintiff appeared before the Institution Classification

Committee (ICC) for a hearing chaired by defendant Rosario. Defendants Walker, Martin and

Mayfield, as a recorder, were present at the meeting. While in Ad/Seg, Plaintiff was single celled

and on “Walk Alone Yard” status. 

Plaintiff reappeared before the ICC on May 14, 2003, for a hearing chaired by

defendant Rosario to consider his retention in Ad/Seg. Sergeant Tennison, Dr. Martin, and

defendants Mayfield and Mini, as a recorder, were present at the meeting. On May 15, 2003,

Officer Lynch interviewed Plaintiff about his enemy concerns as documented on his CDC 812

enemy list. Plaintiff affirmed that he had at least 31 enemies located state wide. On June 18,

2003, Plaintiff reappeared before the ICC for a hearing chaired by Officer Stiles. Sergeant

Tennison, Dr. Martin, and defendant Mini, as a recorder, were present at the meeting. Plaintiff

declined to appear at the hearing due to a toothache. The ICC recognized that Plaintiff could not

be housed in any of the States’ SNY safely, and therefore recommended indeterminate SHU

placement. The ICC also referred Plaintiff’s case to the Departmental Review Board (DRB) to

3

determine his housing alternative and enemy evaluation.

On June 1, 2003, Plaintiff was interviewed by defendant Wilson to discuss

Plaintiff’s enemy concerns. On July 14, 2003, defendant Warden Pliler’s staff issued a

memorandum to refer Plaintiff’s case to the DRB for alternate housing consideration. Defendant

Pliler’s staff considered possible housing options for Plaintiff in a memo, and recommended that

Plaintiff be transferred to Pleasant Valley State Prison, level III SNY yard, with an override and

indeterminate SHU term. 

On August 19, 2003, Plaintiff reappeared before the ICC for a hearing chaired by

defendant Stratton. Sergeant Tennison, Dr. Martin, Officer Stiles, and defendants Vance and

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 3 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Defendants also objects to some of the documents Plaintiff provided, and the lack

4

of affidavits supporting his position. However, the undersigned notes that Plaintiff’s statements

and arguments are signed under penalty of perjury. Therefore to the extent these documents

contain actual facts, the undersigned has treated those factual allegations, signed under penalty of

perjury, as an affidavit. 

4

Mini, as a recorder, were present at the meeting. 

On September 9, 2003, Plaintiff was transferred to Salinas Valley State Prison,

Facility A. 

C. Plaintiff’s Dispute of Facts

Plaintiff opposes several of Defendants’ “undisputed facts” by stating he disputes

them. Plaintiff does not, however, provide any admissible evidence to support his position that

the facts alleged are disputable. For example, Defendants provide several reports Petitioner

disputes, but he does not provide any evidence in support of his position such as conflicting

reports or declaration from the purported authors of the reports confirming that they were in fact

modified. As set forth below, unsupported denials are insufficient to bring a fact into dispute. 

However, the disputed facts are generally irrelevant to the disposition of this case. Where

relevant, the undersigned will address the purported disputed facts below if necessary. 

4

II. STANDARDS FOR SUMMARY JUDGMENT

Summary judgment is appropriate when it is demonstrated that there exists “no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party

always bears the initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of “the pleadings,

depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any,” which it believes demonstrate the absence of a

genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). 

“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a

summary judgment motion may properly be made in reliance solely on the ‘pleadings,

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 4 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

depositions, answers to interrogatories, and admissions on file.’” Id. Indeed, summary judgment

should be entered, after adequate time for discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at trial. Id. at 322. “[A] complete failure of

proof concerning an essential element of the nonmoving party’s case necessarily renders all other

facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as

whatever is before the district court demonstrates that the standard for entry of summary

judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the

opposing party to establish that a genuine issue as to any material fact actually does exist. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to

establish the existence of this factual dispute, the opposing party may not rely upon the allegations

or denials of its pleadings but is required to tender evidence of specific facts in the form of

affidavits, and/or admissible discovery material, in support of its contention that the dispute

exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must

demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the

suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W.

Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the

dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the

nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party

need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary

judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a

genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 5 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

The issue of exhaustion was previously addressed by a motion to dismiss, which 5

was granted in part (Docs. 80, 83). In relation to the motion to dismiss, Defendants conceded

that Plaintiff had exhausted his claims regarding retention in Ad/Seg (Doc. 72). In addition, as

discussed fully infra, the undersigned finds it appropriate to grant the Defendants’ motion on

other grounds. As such, the undersigned finds it unnecessary to address the exhaustion argument

herein.

6

committee’s note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 

See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson,

477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the

court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 

Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to

produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen

Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir.

1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply

show that there is some metaphysical doubt as to the material facts . . . . Where the record taken

as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

III. DISCUSSION

Here, Defendants argue Plaintiff’s claim of retaliation fail because they acted in the

interest of safety and had no retaliatory motive; Plaintiff’s Due Process claims fail because he had

no right to call witnesses and present evidence at his Ad/Seg and ICC hearings; Plaintiff’s claims

are barred for failure to exhaust administrative remedies ; and the Defendants are entitled to 5

qualified immunity.

A. Retaliation

In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must

establish that he was retaliated against for exercising a constitutional right, and that the retaliatory

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 6 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

action was not related to a legitimate penological purpose, such as preserving institutional

security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting

this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the

exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995);

Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also

show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by

the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also

Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must

establish the following in order to state a claim for retaliation: (1) prison officials took adverse

action against the inmate; (2) the adverse action was taken because the inmate engaged in

protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the

adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568.

As to the chilling effect, the Ninth Circuit in Rhodes observed: “If Rhodes had not

alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm

that is more than minimal will almost always have a chilling effect.” Id. at n.11. By way of

example, the court cited Pratt in which a retaliation claim had been decided without discussing

chilling. See id. This citation is somewhat confusing in that the court in Pratt had no reason to

discuss chilling because it concluded that the plaintiff could not prove the absence of legitimate

penological interests. See Pratt, 65 F.3d at 808-09. Nonetheless, while the court has clearly stated

that one of the “basic elements” of a First Amendment retaliation claim is that the adverse action

“chilled the inmates exercise of his First Amendment rights,” id. at 567-68, see also Resnick, 213

F.3d at 449, the comment in Rhodes at footnote 11 suggests that adverse action which is more

than minimal satisfies this element. Thus, if this reading of Rhodes is correct, the chilling effect

element is essentially subsumed by adverse action. 

Here, Plaintiff claims the defendants retaliated against him for his complaints

against official corruption. He argues that he was placed and retained in Ad/Seg in retaliation for

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 7 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

As Defendants point out, whether inmate Lyons was a confirmed enemy due to 6

the threat Plaintiff reported or due to inmate Lyons’s detention in a holding cell or Ad/Seg

following Plaintiff’s report, the possible enemy situation had to be a concern to the safety and

security of all involved, including the institution.

Plaintiff argues Defendants had ulterior motives in keeping him retained in 7

Ad/Seg, that is retaliation for his litigation against other officers. The Defendants have submitted

declaration stating they were unaware of any legal actions Plaintiff had filed against them. 

8

his litigation against several prison officials, including defendants Walker and Pliler. He also

claims that the defendants acted for the sole purpose of retaliating against him, and not for any

true, legitimate peneological purpose. Defendants argue they had no retaliatory purpose for their

action, and that their actions were grounded in security and safety of both Plaintiff and the

institution. 

The undisputed facts show Plaintiff reported that inmate Lyons had threatened him

and an officer. On the same day Plaintiff made that report, he was placed in Ad/Seg. The official

reason for placing Plaintiff in Ad/Seg was due to security and safety concerns. In addition to the 

immediate security and safety, Plaintiff had enemy issues which had to be addressed in order to

secure his continued safety and that of the institution. Plaintiff acknowledges he has numerous

enemies throughout the state. In addition, given the threats from inmate Lyons, it was apparent he

had a potential new enemy at SAC.6

In order to prove retaliation, Plaintiff has to meet all of the elements. Even if he

meets the first three, and can prove that the prison officials took adverse action against him

because he engaged in protected conduct, he must also be able to prove that the adverse action did

not serve a legitimate penological purpose. Here, Plaintiff admits he reported being threatened by

another inmate. He also admits to numerous enemies throughout the state. Defendants have

submitted evidence that retaining Plaintiff in Ad/Seg was reasonably related to a legitimate

penological interest. Keeping Plaintiff away from the inmate who threatened him while they

located a safe location to transfer him is a legitimate penological reason for retaining him in

Ad/Seg. Plaintiff’s argument that it was unnecessary for him to be retained in Ad/Seg once 7

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 8 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Plaintiff submitted case numbers for legal actions he filed. However, regardless of whether

Plaintiff had initiated legal action against any of the Defendants or their fellow officers, the

Defendants have provided the court with sufficient evidence to support a legitimate penological

reason for keeping Plaintiff segregated. Therefore, even if there were several reasons motivating

the Defendants’ actions, at least one is a legitimate reason, safety and security, and that is

sufficient to defeat Plaintiff’s retaliation claim.

9

inmate Lyons was placed in Ad/Seg is unpersuasive. It is not for Plaintiff or the court to decide

how best to handle safety and security issues. Keeping Plaintiff in Ad/Seg until such time as he

could be transferred to an institution with less of a threat was a reasonable solution to the threat to

safety presented at the time. As such, Plaintiff cannot meet all of the elements to prove retaliation

and Defendants are entitled to judgment on this claim. 

B. Due Process

The Due Process Clause protects prisoners from being deprived of life, liberty, or

property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to

prevail on a claim of deprivation of due process, a plaintiff must first establish the existence of a

liberty or property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S.

651, 672 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972). Due process protects against

the deprivation of property where there is a legitimate claim of entitlement to the property. See

Bd. of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are

defined, by existing rules that stem from an independent source – such as state law – and which

secure certain benefits and support claims of entitlement to those benefits. See id.

Liberty interests can arise both from the Constitution and from state law. See

Hewitt v. Helms, 459 U.S. 460, 466 (1983); Meachum v. Fano, 427 U.S. 215, 224-27 (1976);

Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993). In determining whether the Constitution

itself protects a liberty interest, the court should consider whether the practice in question “is

within the normal limits or range of custody which the conviction has authorized the State to

impose.” Wolff, 418 U.S. at 557-58; Smith, 994 F.2d at 1405. Applying this standard, the

Supreme Court has concluded that the Constitution itself provides no liberty interest in good-time

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 9 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

10

credits, see Wolff, 418 U.S. at 557; in remaining in the general population, see Sandin v. Conner,

515 U.S. 472, 485-86 (1995); in not losing privileges, see Baxter v. Palmigiano, 425 U.S. 308,

323 (1976); in staying at a particular institution, see Meachum, 427 U.S. at 225-27; or in

remaining in a prison in a particular state, see Olim v. Wakinekona, 461 U.S. 238, 245-47 (1983). 

In determining whether state law confers a liberty interest, the Supreme Court has

adopted an approach in which the existence of a liberty interest is determined by focusing on the

nature of the deprivation. See Sandin v. Connor, 515 U.S. 472, 481-84 (1995). In doing so, the

Court has held that state law creates a liberty interest deserving of protection only where the

deprivation in question: (1) restrains the inmate’s freedom in a manner not expected from the

sentence; and (2) “imposes atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Id. at 483-84. Prisoners in California have a liberty interest in

the procedures used in prison disciplinary hearings where a successful claim would not

necessarily shorten the prisoner’s sentence. See Ramirez v. Galaza, 334 F.3d 850, 853, 859 (9th

Cir. 2003) (concluding that a due process challenge to a prison disciplinary hearing which did not

result in the loss of good-time credits was cognizable under § 1983); see also Wilkinson v.

Dotson, 544 U.S. 74, 82 (2005) (concluding that claims which did not seek earlier or immediate

release from prison were cognizable under § 1983). 

If a prisoner is subject to non-disciplinary segregation, due process requires only

that prison officials “hold an informal nonadversary hearing within a reasonable time after the

prisoner is segregated,” that prison officials “inform the prisoner of the charges against [him] or

the reasons for considering segregation,” and that the prisoner be allowed “to present his views.”

Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986). Due process does not require

“detailed written notice of charges, representation by counsel or counsel substitute, an opportunity

to present witnesses, or a written decision describing the reasons for placing the prisoner in

administrative segregation.” Id. Further, “due process does not require disclosure of the identity

of any person providing information leading to the placement of a prisoner in administrative

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 10 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

11

segregation.” Id.

Here, Plaintiff was placed in Ad/Seg on April 17, 2003. He acknowledges

receiving a copy of the CDC Form 114-D which set forth the reasons and circumstances for his

placement in Ad/Seg. He also acknowledges that a hearing was held on April 23, 2003. Further

hearings were held on May 14, 2003, June 18, 2003, and August 27, 2003, and he was then

transferred on September 9, 2003. He was therefore held in Ad/Seg for less than five months, and

during that time officials held three review hearings. In addition, the decision to retain Plaintiff in

Ad/Seg was certainly supported by some evidence, including the potential threat against him and

his extensive enemy list, both of which invoke safety and security issues. 

Plaintiff’s objection with the procedures used relate to his ability to call witnesses

and present evidence. He claims he requested witnesses both verbally and in writing, but was not

allowed to call his witnesses at the hearing, nor was he allowed to present documentary evidence. 

However, as noted above, due process does not require the opportunity to present witnesses or

documentary evidence at a non-disciplinary segregation determination hearing. Plaintiff

acknowledges he was present at all but one of the hearings, and the one hearing he did not attend

he did so by choice. Therefore, regardless of whether or not he submitted a request to call

witnesses, the undersigned finds the Defendants did not violate his due process rights by failing to

allow Plaintiff to call witnesses or present documentary evidence at the hearing.

C. Qualified Immunity

Government officials enjoy qualified immunity from civil damages unless their

conduct violates “clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general,

qualified immunity protects “all but the plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified

immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the

injury, the facts alleged show the defendant’s conduct violated a constitutional right. See Saucier

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 11 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

12

v. Katz, 533 U.S. 194, 201 (2001). If, and only if, a violation can be made out, the next step is to

ask whether the right was clearly established. See id. This inquiry “must be undertaken in light of

the specific context of the case, not as a broad general proposition . . . .” Id. “[T]he right the

official is alleged to have violated must have been ‘clearly established’ in a more particularized,

and hence more relevant, sense: The contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Id. at 202 (citation

omitted). Thus, the final step in the analysis is to determine whether a reasonable officer in

similar circumstances would have thought his conduct violated the alleged right. See id. at 205. 

When identifying the right allegedly violated, the court must define the right more

narrowly than the constitutional provision guaranteeing the right, but more broadly than the

factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th

Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently

clear that a reasonable official would understand [that] what [the official] is doing violates the

right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court

concludes that a right was clearly established, an officer is not entitled to qualified immunity

because a reasonably competent public official is charged with knowing the law governing his

conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff

has alleged a violation of a clearly established right, the government official is entitled to qualified

immunity if he could have “. . . reasonably but mistakenly believed that his . . . conduct did not

violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see also

Saucier, 533 U.S. at 205. 

The first two steps in the qualified immunity analysis involve purely legal

questions. See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a

legal determination based on a prior factual finding as to the government official’s conduct. See

Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). In resolving these issues, the court must

view the evidence in the light most favorable to plaintiff and resolve all material factual disputes

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 12 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

13

in favor of plaintiff. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 

As set forth above, the undersigned finds the Defendants did not violate any of

Plaintiff’s clearly established rights. However, assuming for this discussion that such a violation

did occur, and the rights the Defendants presumably violated were clearly established, no 

reasonable officer in similar circumstances would have thought his conduct violated the alleged

right. Plaintiff reported a threat made on his life by a fellow inmate. In order to protect Plaintiff’s

safety and the safety and security of the institution, a reasonable officer in such a situation could

have acted as the officers did here by separating Plaintiff from other inmates. As Plaintiff argues,

several other inmates heard inmate Lyons’s statements and it would be reasonably prudent of the

prison officials to keep Plaintiff away from all other inmates for his protection. In addition,

Plaintiff acknowledges his extensive enemy list. In such a situation, no reasonable officer in a

similar circumstance would have thought keeping Plaintiff in Ad/Seg for a few months while they

found an appropriate housing assignment would have violated Plaintiff’s rights. 

Accordingly, the undersigned finds that if a violation of Plaintiff’s clearly

established rights were to have occurred, no reasonable officer in a similar circumstance would

have believed his conduct violated Plaintiff’s rights. Therefore, the Defendants here should be

entitled to qualified immunity.

IV. UNSERVED DEFENDANT

Finally, there remains one defendant unaccounted for in these proceedings. 

Service was returned unexecuted as to defendant Stiles. On May 5, 2009, the court issued an

order directing Plaintiff to provide additional information to serve this defendant. Plaintiff then

filed a request for assistance in obtaining service information for defendant Stiles, which the court

granted to the extent discovery was reopened for the limited purpose of trying to find service

information for defendant Stiles.

/ / /

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 13 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

14

Defendants have now filed a notice that defendant Stiles’ last know address has

been obtained. Defendants have requested the court accept this information and keep it filed

under seal during the pendency of this litigation, and return it to Defendants’ counsel at its

termination.

The claims set forth in the complaint relating to defendant Stiles are not unique to

her. All of the claims against defendant Stiles relate to her position as a member of the ICC

committee, and the hearings in which the ICC decided to retain Plaintiff in Ad/Seg and transfer

him to another facility. As discussed above, these claims are subject to summary judgment. The

undersigned found that Plaintiff’s due process rights were not violated during the ICC hearings

when he was not permitted to call witnesses or present evidence. Therefore, even though

defendant Stiles has not been served and appeared in this case, Plaintiff’s claims against her

cannot survive summary judgment. 

As the claims against defendant Stiles are subject to summary judgment, it would

be an effort in futility to have her served by the U.S. Marshal at this late date. The undersigned

finds it appropriate to enter judgment for defendant Stiles, and deny the request for the court to

keep her address under seal during the pendency of this litigation. In the event these findings and

recommendations are not adopted, and the district court finds it necessary to have defendant Stiles

served, the court will entertain the defendants’ request at that time. 

V. CONCLUSION

Based on the foregoing, the undersigned recommends that:

1. Defendants’ motion for summary judgment (Doc. 127) be granted;

2. Plaintiff’s motion for summary judgment (Doc. 154) be denied;

3. Summary judgment be entered for defendant Stiles; 

4. Judgment be entered in favor of Defendants; and

5. The Clerk of the Court be directed to enter judgment and close this case. 

/ / /

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 14 of 15
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

15

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

after being served with these findings and recommendations, any party may file written objections

with the court. Responses to objections shall be filed within 14 days after service of objections. 

Failure to file objections within the specified time may waive the right to appeal. See Martinez v.

Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: July 14, 2010

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

Case 2:04-cv-01368-GEB -CMK Document 160 Filed 07/15/10 Page 15 of 15