Michael Saavedra v. L. E. SCRIBNER, Warden

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL SAAVEDRA,
Plaintiff - Appellant,
v.
L. E. SCRIBNER, Warden; D. TRAVERS;
ANTHONY HEDGPETH; P.
MANDEVILLE; J. CELAYA; J.
MCCALL; R. PARIN,
Defendants - Appellees.
No. 09-17775
D.C. No. 3:08-cv-02180-CRB
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted May 14, 2012
San Francisco, California
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
Plaintiff Michael Saavedra, an inmate at Salinas Valley State Prison, sued
various prison officials for alleged due process violations arising out of his
FILED
JUN 06 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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placement and retention in administrative segregation and the disciplinary
proceedings that followed. The district court granted summary judgment to
Defendants. It held that the notice given to Saavedra for his placement in
administrative segregation was constitutionally deficient, but that Defendants were
entitled to qualified immunity. We affirm.
We review “questions of our own jurisdiction de novo.” Hunt v. Imperial
Merchant Servs., Inc., 560 F.3d 1137, 1140 (9th Cir. 2009). We review a decision
to grant summary judgment on the basis of qualified immunity de novo. See
Bingham v. City of Manhattan Beach, 341 F.3d 939, 945 (9th Cir. 2003). The
doctrine of qualified immunity is a two-part test. “First, a court must decide
whether the facts that a plaintiff has . . . shown . . . make out a violation of a
constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). “Second . . .
the court must decide whether the right at issue was ‘clearly established’ at the
time of defendant’s alleged misconduct.” Id. For a right to be clearly established,
the unlawfulness of official action “must be apparent” “in the light of pre-existing
law.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks and
citation omitted).
1. Rooker-Feldman Doctrine. As a preliminary matter, Defendants
contend that the Rooker-Feldman doctrine bars jurisdiction over this case. The

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Rooker-Feldman doctrine bars federal court jurisdiction where a federal plaintiff is
“complaining of injuries caused by state-court judgments” and is “inviting district
court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005). The Rooker-Feldman doctrine does not
bar this action on the basis of the state court’s denial of Saavedra’s habeas petition
because Saavedra complains of due process injuries caused by Defendants’
conduct, not injuries caused by a state court judgment.
2. Due Process Violations. For placement in administrative segregation,
an inmate must “receive some notice of the charges against him,” Hewitt v. Helms,
459 U.S. 460, 476 (1983) (emphasis added), or “notice of the factual basis leading
to consideration” for confinement, Wilkinson v. Austin, 545 U.S. 209, 225-26
(2005). The notice must be delivered “within a reasonable time following an
inmate’s transfer” in order to be effective in helping the inmate prepare a defense
at his hearing. See Hewitt, 459 U.S. at 476 n.8; Toussaint v. McCarthy, 801 F.2d
1080, 1100 & n.20 (9th Cir. 1986) (“Prison officials must hold an informal
nonadversary proceeding within a reasonable time after the prisoner is
segregated.”).
The notice delivered to Saavedra on April 15, 2004, the day of his
segregation, stated that Saavedra was “deemed a threat to the safety and security of

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the institution, it’s [sic] staff, and inmates” based on “confidential information.”
Defendants knew that Saavedra was being investigated for overfamiliarity with
staff, yet failed to notify Saavedra of that fact. We agree with the district court’s
holding that this April 15 notice was constitutionally insufficient under Hewitt.
Nearly two months after his segregation, at a hearing on June 10, Defendants
gave Saavedra a CDC 1030 form notifying him that his placement in
administrative segregation was because of a still-ongoing investigation into the
charge for overfamiliarity with staff. We hold that a two-month delay between
placement in administrative segregation and the June 10 notice of the charges was
unreasonable in violation of due process. See Hewitt, 459 U.S. at 476 n.8;
Toussaint, 801 F.2d at 1100 & n.20.
Defendants’ contention that Saavedra lacks a protectable liberty interest was
not raised in the district court. Accordingly, they have waived this issue. See
Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010)
(finding waiver on appeal of question of protectable liberty interest where
defendants failed to raise it in the district court).
3. Qualified Immunity. We hold that qualified immunity protects
Defendants from liability for the due process violations described above. We also
hold that qualified immunity protects Defendants from liability for Saavedra’s

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other notice-based due process claims, but need not decide whether the facts
establish a violation of his constitutional rights. See Pearson, 555 U.S. at 236
(holding that a court may decide the question of qualified immunity without
deciding the underlying constitutional question).
We begin with the question of qualified immunity for the constitutional
violation arising out of the deficient notice on April 15, and the failure to effect
timely and sufficient notice prior to the June 10 hearing. Because our cases do not
give adequate guidance both on the level of specificity required in a Hewitt notice
and on ensuring timely delivery of a Hewitt notice, there is qualified immunity for
the time period from April 15 to June 10.
Assuming without deciding that the June 10 notice of the charges was
constitutionally deficient, we conclude that Defendants are entitled to qualified
immunity for the June 10 notice. From a reading of our cases and the Supreme
Court’s, it would not be apparent to a prison official in 2004 that a Hewitt notice
requires more than the notice provided.
Defendants are also entitled to qualified immunity for any constitutional
violations arising out of the notice delivered to Saavedra for his subsequent
disciplinary proceedings that resulted in loss of good time. That notice disclosed
the charge and some factual basis for the charge. It would not be apparent to a

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prison official that he needed to disclose more than this information in a notice to
initiate disciplinary proceedings, especially where a portion of the evidence used to
support the disciplinary action was legitimately confidential. See Zimmerlee v.
Keeney, 831 F.2d 183, 188 (9th Cir. 1987) (“Wolff [v. McDonnell, 418 U.S. 539,
563-66 (1974)] provides little guidance as to the specificity of notice necessary to
satisfy due process.”); McCollum v. Miller, 695 F.2d 1044, 1048 (7th Cir. 1982)
(explaining that more notice is not necessary where disclosure of evidence may
impose significant costs on the prison’s investigation into, and prosecution of,
misconduct).
4. “Some Evidence” Justified Saavedra’s Placement in Segregation.
Assuming the “some evidence” standard applies to the initial placement in
administrative segregation, compare Toussaint, 801 F.2d at 1104 (requiring “some
evidence”), with Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) (not requiring
“some evidence”), the evidence Defendants used to place Saavedra in
administrative segregation satisfied the “some evidence” standard.
AFFIRMED.

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