NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAFAEL MORA-CONTRERAS; SHANE 

STAGGS, 

Plaintiffs-Appellants, 

 v. 

COLETTE PETERS; et al., 

Defendants-Appellees.

No. 20-35476 

D.C. No. 6:18-cv-00678-SB 

MEMORANDUM*

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).

FILED

JUN 24 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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§ 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 
3 

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.