FILED
NOT FOR PUBLICATION NOV 19 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDWARD HERNANDEZ, No. 08-15493
Plaintiff - Appellant, D.C. No. 05-CV-02853-DGC
v.
MEMORANDUM *
DORA SCHRIRO; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted November 5, 2009
San Francisco, California
Before: GOODWIN and W. FLETCHER, Circuit Judges, and MILLS,** District
Judge.
Plaintiff Edward Hernandez appeals a summary judgment for Defendant
administrators of the Arizona Department of Corrections (“ADC”), Dora Schriro,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Mills, District Judge for the Central District of
Illinois, sitting by designation.
Carson McWilliams, and Dorinda Cordova. We have jurisdiction under 28 U.S.C.
§ 1291. We reverse and remand.
Plaintiff was placed in Special Management Unit II ("SMU II") maximum
security isolation based solely on his membership in Warrior Society, a designated
security threat group, on May 18, 2004. (2 Excerpts of Record 93). The ADC
reviews Plaintiff’s retention in SMU II only annually, though Plaintiff may be able
to initiate a debriefing or step down program at any time. (Id. at 92, 161). Plaintiff
argues that Defendants violated his due process rights in placing and retaining him
in SMU II.
Due process requires (1) upon initial placement in segregation, the inmate
receives notice of the factual basis for the segregation and an opportunity to be
heard; (2) some evidence to support the decision; and (3) periodic review of the
inmate's confinement status. Wilkinson v. Austin, 545 U.S. 209, 225–26 (2005);
Superintendent v. Hill, 472 U.S. 445, 455 (1985); Hewitt v. Helms, 459 U.S. 460,
477 n.9 (1983) (abrogated in part on other grounds by Sandin v. Conner, 515 U.S.
472, 483 (1995)).
Plaintiff does not argue that the first requirement is not satisfied. Indeed, the
record shows that he received notice and an opportunity to be heard upon
placement into segregation. (2 Excerpts of Record 93). However, Plaintiff argues
that the second requirement is not satisfied because the ADC relied only on some
evidence of Plaintiff’s membership in a security threat group, rather than on some
evidence of specific misconduct attributable to him. Plaintiff is incorrect. See
Bruce v. Ylst, 351 F.3d 1283, 1286–88 (9th Cir. 2003). Because the record shows
some evidence of Plaintiff’s membership in Warrior Society, including Plaintiff’s
admission, the second requirement is satisfied. (2 Excerpts of Record 93).
Plaintiff argues that the third requirement is not satisfied because annual
reviews plus the ability to initiate a debriefing or step down program is
insufficient. This Court has indicated that annual reviews are insufficient.
Toussaint v. McCarthy, 801 F.2d 1080, 1101 (9th Cir. 1986) (abrogated in part on
other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Whether the debriefing
or step down programs are available and adequate alternatives to more frequent
review raises legal and factual questions that cannot be answered on the record as
developed thus far. Plaintiff alleges that he cannot safely participate in those
programs because he will be labeled a “prison snitch.” (2 Excerpts of Record 174).
Such a label could raise safety concerns that implicate the Eighth Amendment. See
Farmer v. Brennan, 511 U.S. 825, 832 (1994). Accordingly, the case is remanded
for further factual development.
Plaintiff also appeals the grant of summary judgment on claims related to the
conditions of his confinement in SMU II. Specifically, Plaintiff argues that his
Eighth Amendment rights are violated by his limited exercise opportunities and his
cell’s lighting, and that his RLUIPA rights are violated because he is prohibited
from pipe and sweat lodge ceremonies. We need not reach these issues at this time
because they become moot if Plaintiff is not properly retained in
SMU II.
REVERSED AND REMANDED.