NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN EUGENE LEPLEY, No. 20-16918
Plaintiff-Appellant, D.C. No. 2:16-cv-02848-RFB-DJA
v.
MEMORANDUM*
NEVADA DEPARTMENT OF
CORRECTIONS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Nevada state prisoner Brian Eugene Lepley appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging due process
claims arising from a disciplinary hearing. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a dismissal for failure to state a claim under Federal
*
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).
Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir.
2010). We reverse and remand.
The district court dismissed Lepley’s due process claim on the ground that
Lepley failed to allege facts sufficient to show that defendant hearing officer
Dugan did not afford him all of the process that he was due at his disciplinary
hearing finding him guilty of unauthorized use of the prison’s mail system.
However, Lepley alleged that during the disciplinary hearing, Dugan did not
permit Lepley to question Lepley’s sole witness or hear his witness’s responses to
Dugan’s questions. Liberally construed, these allegations “are sufficient to warrant
ordering [defendants] to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116
(9th Cir. 2012); Wolff v. McDonnell, 418 U.S. 539, 563-71 (1974) (setting forth
due process requirements in prison disciplinary proceedings, including a prisoner’s
right to call witnesses and present documentary evidence in their own defense);
Hebbe, 627 F.3d at 342 (courts have an obligation to construe pro se pleadings
liberally and to afford the petitioner the benefit of any doubt (citation and internal
quotation marks omitted)); cf. Mitchell v. Dupnik, 75 F.3d 517, 525-26 (9th Cir.
1996) (holding that a prison’s blanket denial of live witnesses, instead relying
exclusively on written questions and remote witness interviews, violated due
process).
REVERSED and REMANDED.
2 20-16918