McNeil v. Gittere

1

MICHAEL MCNEIL, Plaintiff v. WILLIAM GITTERE, et al., Defendants.

No. 3:20-cv-00668-APG-CSD

United States District Court, D. Nevada

May 22, 2023

ORDER [ECF NOS. 15, 21, 27]

ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.

Plaintiff Michael McNeil sues defendants William Gittere, Matthew Roman, Dennis Homan, Sarah O'Donnell, Harold Wickham, and Amanda Allred, all current or former employees of the Nevada Department of Corrections (NDOC). McNeil is a prisoner at Ely State Prison (ESP) and was administratively charged by NDOC with attempting to smuggle drugs into ESP during his incarceration. He sues under 42 U.S.C. § 1983, alleging the defendants violated the Due Process Clause of the Fourteenth Amendment because his notice of charges did not sufficiently put him on notice of what he was accused of, he was not afforded the opportunity to examine the evidence or call a requested witness during his disciplinary hearing, and he was not adequately notified of the evidence relied upon to find him guilty.

The parties each moved for summary judgment. Magistrate Judge Denney issued a report and recommendation (R&R) proposing that I grant in part and deny in part both motions. The defendants object to the denial of any portion of their motion or the grant of any portion of McNeil's motion. They argue there is no evidence they violated McNeil's rights, and that even if they did they are entitled to qualified immunity because the right was not clearly established. McNeil requests that I adopt the report and recommendation in full. I accept in part and modify in part the R&R.

I. BACKGROUND

On April 14, 2020, O'Donnell^[1] (an NDOC correctional assistant) charged McNeil with possession or sale of intoxicants. ECF Nos. 15-8 at 8; 15-14. NDOC alleged that an item of mail sent to McNeil from “Got It Girls Entertainment” tested positive for cocaine, and that McNeil and the operator of Got It Girls Entertainment were attempting to smuggle drugs into Nevada prisons via mail. ECF No. 15-8 at 8. The charge identified the evidence against McNeil as the address label that tested positive for cocaine and recordings of phone calls McNeil placed discussing drug-laced mail items. Id. The evidence was located at the ESP evidence vault or “in camera within Investigations.” Id.

The NDOC disciplinary process includes a preliminary hearing where the charged inmate is presented with his notice of charges, and a disciplinary hearing, where the charge is adjudicated. ECF No. 15-10 at 9-22. Roman (an NDOC correctional sergeant) held McNeil's preliminary hearing on April 21, 2020. ECF No. 15-12 at 10. McNeil asked that the mail item and positive test result be present at his disciplinary hearing for review, but Roman denied the request. ECF Nos. 1-1 at 7; 15-9 at 3. The disciplinary hearing was held on April 24, 2020 before a panel including Homan (then the acting disciplinary hearing lieutenant) and Allred (a correctional caseworker specialist). ECF Nos. 15-8 at 2-6; 15-15 at 2-3. Unlike at his preliminary hearing McNeil did not request access to the evidence against him during the disciplinary hearing. ECF No. 16. The panel found McNeil guilty of the charge and imposed a penalty of 60 days of statutory time forfeiture, 90 days without canteen privileges, and a referral to the Nevada Attorney General for possible criminal prosecution. ECF No. 15-8 at 2-6.

McNeil appealed by filing a first-level grievance with Gittere (then the warden of ESP) challenging his lack of access to the evidence. ECF No. 15-12 at 5-7. Gittere denied the appeal, reasoning that the evidence was sufficient to find McNeil guilty and that the formal rules of evidence do not apply in NDOC disciplinary proceedings. Id. at 8. McNeil then filed a second, final grievance with defendant Wickham (then the Deputy Director at NDOC), again challenging his lack of access to the evidence, which Wickham denied. Id. at 2-3. McNeil filed this lawsuit on December 2, 2020. ECF No. 1.

Judge Denney recommends that I: (1) grant summary judgment to the defendants on all claims except whether they violated McNeil's due process rights by denying him access to the evidence used in the disciplinary hearing; (2) grant summary judgment to McNeil insofar as he asserts the defendants violated his due process rights, because there is no genuine dispute that they denied him access to the mail item that tested positive for cocaine and the positive test result; (3) deny the defendants qualified immunity because it was clearly established that McNeil has a constitutional right to access the evidence; and (4) deny the parties' motions on the claim that the defendants violated McNeil's due process rights by denying access to other items of evidence, such as recorded phone calls or mail, because there is a genuine issue of whether McNeil requested that evidence.

II. ANALYSIS

I review de novo the portions of the R&R to which an objection was made, and may accept, reject, or modify it in whole or in part. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b)(1)(C). McNeil requests that I adopt the R&R in full.

ECF No. 29 at 2. The defendants object to the denial of their motion with respect to whether they violated McNeil's rights by denying access to evidence and whether they are entitled to qualified immunity. ECF No. 28. Therefore, I review those issues de novo.^[2]

I grant a motion for summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it may affect the case outcome under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine when the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. The moving party bears the initial burden of informing the court of the basis for its motion and identifying the portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If it meets its burden, the burden shifts to the nonmoving party to “produce evidence of a genuine dispute of material fact that could satisfy its burden at trial.” Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir. 2018). I view the evidence and reasonable inferences in the light most favorable to the non-moving party. Zetwick v. County of Yolo, 850 F.3d 436, 440-41 (9th Cir. 2017).

A. Denial of Access to the Mail Item and Positive Test Result

Judge Denny recommends summary judgment in McNeil's favor because there is no genuine issue that the defendants denied him access to the requested mail and positive test result. An inmate has a due process right^[3] to access the evidence or copies of the evidence to be used against him in a prison disciplinary hearing, including envelopes allegedly containing drugs. Melnik v. Dzurenda, 14 F.4th 981, 985-87 (9th Cir. 2021). But the right is not absolute, and officials may deny access “if they have a legitimate penological reason,” including if granting access “would be unduly hazardous to institutional safety or correctional goals.” Id. at 986-87 (quotations omitted). A prison may also require inmates to affirmatively request the evidence. Id. at 987.

I modify the portion of the R&R granting summary judgment to McNeil on this issue. McNeil is entitled to summary judgment against Roman, Wickham, and Gittere, but not Allred or Homan. Allred and Homan are entitled to summary judgment in their favor because there is insufficient evidence for McNeil to meet his burden at trial of proving that he asked them for access to the mail item and positive test result.

1. Roman

It is undisputed that McNeil asked Roman to access the mail item and positive test result and that Roman denied the request. See ECF Nos. 1-1 at 7; 15-9 at 3. While Roman had a legitimate penological reason to deny access to the mail item and positive test because they may have contained traces of drugs, he offers no justification for his failure to provide copies. See Melnik, 14 F.4th at 987 (holding that “[t]he penological reason must be legitimate” and the “mere label ‘confidential' attached [to evidence] by prison officials without logical foundation cannot be used to prohibit a prisoner from accessing evidence to be used in a disciplinary hearing”). Roman's argument that McNeil did not specifically request copies is unpersuasive. An inmate's request for evidence “need not be extremely detailed,” and “requesting the right to inspect a document should be understood to include the alternative of a copy of a document.” Id. And insofar as McNeil requested the test results (such as a printout of the results) rather than the test itself, Roman offers no legitimate penological purpose for denying access. Thus, McNeil is entitled to summary judgment against Roman on this claim.

2. Wickham and Gittere

I also adopt the recommendation to grant summary judgment against Wickham and Gittere on this claim because there is no genuine dispute that they personally participated in the denial of access to the mail item and positive test result. An official is liable under § 1983 only upon a showing that he personally participated in the deprivation of a right. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Wickham and Gittere argue they are entitled to summary judgment because, ordinarily, the denial of an inmate's administrative grievance is not personal participation under § 1983. See George v. Smith, 507 F.3d 605 609-10 (7th Cir. 2007) (“Ruling against a prisoner on an administrative complaint does not cause or contribute to the [constitutional] violation.”); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (officials...