FILED
NOT FOR PUBLICATION
DEC 16 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER A. JONES, No. 15-16427
Plaintiff-Appellee, D.C. No.
3:10-cv-00162-LRH-VPC
v.
HOWARD SKOLNIK, MEMORANDUM*
Defendant-Appellant,
and
GREG COX and BRIAN WILLIAMS,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted December 14, 2016**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,*** District Judge.
Defendant Howard Skolnik appeals from the district court’s denial of his
motion to dismiss Plaintiff Christopher Jones’ 42 U.S.C. § 1983 claims against him
on the ground of qualified immunity. Plaintiff alleges that several prison officials
violated his procedural due process rights when they denied him a witness at a
disciplinary hearing in 2007. The stated reason for the denial of the witness was
that the witness was "not available," but Plaintiff claims that the witness was, in
fact, ready and willing to testify on his behalf.
Plaintiff sought relief through the prison’s grievance system, but both his
first- and second-level grievances were denied. He then wrote a letter to
Defendant, who was the Director of the Nevada Department of Corrections, asking
him to intervene and correct the alleged due process violation. Defendant wrote
back to Plaintiff, declining to intervene and expressing his belief that Plaintiff had
been "answered appropriately" by the response to the second-level grievance.
Plaintiff then sued Defendant and several other prison officials under 42
U.S.C. § 1983. Eventually, the district court denied Defendant’s motion to dismiss
on the basis of qualified immunity. Defendant appeals from that order.
***
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
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1. We have jurisdiction over this appeal. Although the district court denied
Defendant’s motion to dismiss "without prejudice," it clearly ruled on the merits of
the qualified immunity defense. See Mitchell v. Forsyth, 472 U.S. 511, 528–30 &
528 n.9 (1985) (holding that the denial of qualified immunity is immediately
appealable to the extent it turns on the "purely legal question [of] whether the facts
alleged . . . support a claim of violation of clearly established law").
2. Defendant is entitled to qualified immunity even if Plaintiff did not
receive due process unless "every reasonable official [in Defendant’s position]
would have understood that" Defendant’s conduct violated Plaintiff’s rights.
Demuth v. County of Los Angeles, 798 F.3d 837, 839 (9th Cir. 2015) (internal
quotation marks omitted). Accordingly, resolving the qualified immunity issue
does not require resolving the issue whether collateral estoppel bars Defendant
from arguing that Plaintiff received due process. We therefore lack jurisdiction to
decide the collateral estoppel issue. Chavez v. United States, 683 F.3d 1102, 1108
(9th Cir. 2012).
3. Defendant is entitled to qualified immunity. When we address the issue
of qualified immunity at the pleading stage, we ask whether the complaint
"allege[s] facts sufficient to support [a] claim[] that [the defendant’s] conduct
violated [the plaintiff’s] clearly established constitutional rights." Pelletier v. Fed.
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Home Loan Bank of S.F., 968 F.2d 865, 871 (9th Cir. 1992). We review de novo
both the sufficiency of the complaint, Kwai Fun Wong v. United States, 373 F.3d
952, 961–62 (9th Cir. 2004), and the issue "whether governing law was clearly
established at the time of the alleged violation," Dunn v. Castro, 621 F.3d 1196,
1198 (9th Cir. 2010).
Plaintiff’s complaint alleges that Defendant was "deliberately indifferent" to
a due process violation of which he had "actual knowledge." Even assuming the
letter from Plaintiff to Defendant gave Defendant notice of a claimed due process
violation, Defendant did not have a clearly established constitutional duty to
respond to that letter, as review of prisoner grievances was entrusted to the warden
and the assistant director of the Nevada Department of Corrections under the
established administrative process. Not "every reasonable official [in Defendant’s
position] would have understood that" a refusal to intervene in the administrative
process violated Plaintiff’s due process rights. Demuth, 798 F.3d at 839 (internal
quotation marks omitted).
REVERSED.
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