John Melnik v. James Dzurenda

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN MELNIK,
Plaintiff-Appellee,
v.
JAMES DZURENDA; DWIGHT NEVEN,
Warden; JAY BARTH, Sgt.; JASON
SATTERLY, c/o; ANTHONY WARREN,
c/o; STACEY BARRETT,
Defendants-Appellants.
No. 20-15378
D.C. No.
3:16-cv-00670-
MMD-CLB
OPINION
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted March 10, 2021
Las Vegas, Nevada
Filed September 27, 2021
Before: Richard R. Clifton, Jacqueline H. Nguyen, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Clifton;
Dissent by Judge Bennett

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MELNIK V. DZURENDA 2
SUMMARY*
Prisoner Civil Rights
The panel affirmed the district court’s order, on summary
judgment, denying qualified immunity to Nevada correctional
officials in an action brought pursuant to 42 U.S.C. § 1983 by
a state prisoner alleging defendants violated his constitutional
rights by denying him the ability to examine certain
documents that could have served as evidence in a prison
disciplinary proceeding.
Plaintiff was charged with unauthorized or inappropriate
use of the prison mail system after prison officials intercepted
two envelopes addressed to plaintiff which contained
methamphetamine in secret compartments in the enclosed
letters. After plaintiff was notified of the prison charges, he
asked multiple times to be able to examine the envelopes or
copies of the envelopes, but those requests were denied or
ignored. At the prison disciplinary hearing that followed,
images of the envelopes and information about their contents
were the only evidence presented to support the charges.
Plaintiff testified that he was innocent and had been framed
by other inmates. He was found guilty.
The panel held that defendants were not entitled to
qualified immunity because Plaintiff had a constitutional right
under the Due Process Clause of the Fourteenth Amendment
to be permitted to examine documentary evidence for use in
the prison disciplinary hearing. The panel held that the right
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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MELNIK V. DZURENDA 3
referenced in Wolff v. McDonnell “to present documentary
evidence in” the prisoner’s own defense must generally
include the ability to obtain the documentary evidence in the
first place. 418 U.S. 539, 566 (1974). Similarly, if a prisoner
is to be able to respond to evidence presented against him, as
a general proposition he should be allowed to know what it is
and to examine it, unless there is reason to the contrary. The
panel further concluded that the right to examine
documentary evidence for use in a prison disciplinary hearing
was clearly established at the time when plaintiff was denied
access to the material.
Dissenting, Judge Bennett would hold that defendants
were entitled to qualified immunity because they did not
violate clearly established law. Judge Bennett did not read
Wolff as clearly establishing any right that would allow
plaintiff to compel access to the prison’s evidence against
him. The majority suggested that Wolff implicitly recognized
a prisoner’s right to compile evidence in his defense. But
Judge Bennett doubted that a passing comment on the
prison’s ability to limit the compilation of evidence could
constitute a clearly established right. Nor could Judge
Bennett locate such a right in this Circuit’s case law.
COUNSEL
Frank A. Toddre II (argued), Senior Deputy Attorney
General; D. Randall Gilmer, Chief Deputy Attorney General;
Aaron D. Ford, Attorney General; Attorney General’s Office,
Las Vegas, Nevada; for Defendants-Appellants.

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MELNIK V. DZURENDA 4
Yaira Dubin (argued), O’Melveny & Myers LLP, New York,
New York; Jonathan D. Hacker, O’Melveny & Myers LLP,
Washington, D.C.; Melissa C. Cassel, O’Melveny & Myers
LLP, San Francisco, California; Samuel Weiss, Rights
Behind Bars, Washington, D.C.; for Plaintiff-Appellee.
OPINION
CLIFTON, Circuit Judge:
John Melnik, a Nevada prisoner, brought this Section
1983 action against six individuals, all former or current
employees of the Nevada Department of Corrections.1 He
alleged that they violated his constitutional rights by denying
him the ability to examine certain documents that could serve
as evidence in a prison disciplinary proceeding pending
against him. Defendants sought summary judgment on the
ground that they were entitled to qualified immunity, but the
district court denied that motion. Defendants appeal that
denial.
We conclude that Defendants were not entitled to
qualified immunity because Melnik had a constitutional right
under the Due Process Clause of the Fourteenth Amendment
to be permitted to examine documentary evidence for use in
the prison disciplinary hearing. We further conclude that this
right was clearly established at the time when Melnik was
1 We treat Defendants collectively without distinguishing among them
or describing their individual roles because that is the approach taken by
Defendants themselves in their appeal. They have not presented any
argument that one or more of the Defendants should prevail individually,
even if others might not.

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MELNIK V. DZURENDA 5
denied access to the material. We affirm the district court’s
denial of Defendants’ motion for summary judgment.
I. Background
Melnik, then a prisoner at Nevada’s High Desert State
Prison, was charged with unauthorized or inappropriate use
of the prison mail system. An anonymous prisoner informed
prison officials that Melnik was using the mail system to
smuggle drugs into the prison. After this tip, prison officials
intercepted two envelopes addressed to Melnik which
contained methamphetamine in secret compartments in the
enclosed letters. After Melnik was notified of the prison
charges, he asked multiple times to be able to examine the
envelopes or copies of the envelopes, but those requests were
denied or ignored. At the prison disciplinary hearing that
followed, images of the envelopes and information about
their contents were the only evidence presented to support the
charges. Melnik testified that he was innocent and had been
framed by other inmates. Melnik was found guilty.
As a result of the two violations, Melnik received two
separate eighteen-month terms of disciplinary segregation to
be served consecutively for a total of thirty-six months.
Melnik served ten months of this sentence before it was
suspended. As a result of these sanctions, Melnik contends
that his consideration for parole was delayed for two years.
The district court held that Defendants were not entitled
to qualified immunity and denied their motion for summary
judgment. Melnik v. Dzurenda, No. 16-00670, 2020 WL
607122, at *6–7 (D. Nev. Feb. 7, 2020). In the same order,
the district court granted Melnik’s cross-motion for summary
judgment, concluding that Defendants violated Melnik’s

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Fourteenth Amendment procedural due process rights. Id.
at *3–5. The court concluded that with liability established,
the case would proceed to trial limited to the issue of
damages. Id. at *7.
Defendants appeal the denial of their request for qualified
immunity.
II. Discussion
Denial of qualified immunity is reviewed de novo.
George v. Edholm, 752 F.3d 1206, 1214 (9th Cir. 2014).
Generally, an order denying summary judgment is not
appealable under 28 U.S.C. § 1291 as the parties must wait
for final judgment to appeal. See Johnson v. Jones, 515 U.S.
304, 309 (1995). However, denials of qualified immunity are
appealable immediately under the collateral order doctrine.
Plumhoff v. Rickard, 572 U.S. 765, 772 (2014). This is
because qualified immunity protects government employees
from both liability and having to stand trial. Id. If the appeal
of the denial of qualified immunity is not permitted until the
final judgment, “the immunity from standing trial will have
been irretrievably lost.” Id. The general rule prohibiting
interlocutory appeals still applies to other summary judgment
decisions, including the other decision made by the district
court in this case. See Johnson, 515 U.S. at 309. We may not
entertain at this time an appeal from the part of the district
court’s order granting Melnik’s motion for summary
judgment. It is not a final judgment under Federal Rule of
Civil Procedure 54(b), as the issue of damages remains to be
resolved in the district court, so we do not have jurisdiction
under 28 U.S.C. § 1291 or any exception thereto. See Wilkins
v. City of Oakland, 350 F.3d 949, 952 (9th Cir. 2003). As a

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result, and as the parties acknowledge, this appeal is limited
to the issue of qualified immunity, about which there are no
factual disputes.
Defendants are entitled to qualified immunity if (1) the
alleged conduct did not violate a constitutional right or
(2) that right was not clearly established at the time of the
alleged violation. See Wood v. Moss, 572 U.S. 744, 757
(2014). We will discuss each of those two prongs separately.
In doing so, we consider the specific facts of this case, as the
Supreme Court has made clear that we are not to view the
claim at a “high level of generality. . . . This inquiry must be
undertaken in light of the specific context of the case, not as
a broad general proposition.” Mullenix v. Luna, 577 U.S. 7,
12 (2015) (internal quotation marks and citations omitted).
A. Constitutional Right
The first question we consider is whether Melnik had a
constitutional right to access the envelopes used as evidence
against him in the prison disciplinary hearing (or copies
thereof) in preparing a defense. We conclude that he did.
The Supreme Court established in Wolff v. McDonnell
that there are procedural due process rights that a prisoner
must be afforded in the context of a prison disciplinary
proceeding prior to being deprived of a protected liberty
interest. See 418 U.S. 539, 555–72 (1974). In Wolff, a class of
prisoners in Nebraska alleged, among other things, that the
disciplinary proceedings they were subjected to did not
comply with the Due Process Clause of the Fourteenth
Amendment. Id. at 542–43. The procedures included oral
notice of the charges, an opportunity to ask questions but not
to present evidence or witnesses, and oral recitation of the

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reasons for the hearing body’s finding. Id. at 552–53, 564.
The Court held that one of the constitutional rights afforded
a prisoner in a disciplinary hearing is that the “inmate facing
disciplinary proceedings should be allowed to . . . present
documentary evidence in his defense when permitting him to
do so w[ould] not be unduly hazardous to institutional safety
or correctional goals.” Id. at 566.
If a prisoner must be allowed to present evidence in his
defense, it necessarily follows that he must have some right
to prepare for that presentation. With no access to the
evidence that will be presented against him, a prisoner could
neither build a defense nor develop arguments and evidence
to contest the allegations at the disciplinary hearing. The
Court noted in Wolff that there may be limitations on the
prisoner’s rights, which we will discuss further below, but in
the process the Court made clear that a prisoner’s right to
present a defense must extend to the preparation of a defense,
including compiling evidence: “Prison officials must have the
necessary discretion to keep the hearing within reasonable
limits and . . . to limit access to other inmates to collect
statements or to compile other documentary evidence.” Wolff,
418 U.S. at 566 (emphasis added).
Many courts have held that for the right articulated in
Wolff to mean anything, a prisoner must also have the right to
access evidence that he might use in preparing or presenting
his defense. See Lennear v. Wilson, 937 F.3d 257, 269 (4th
Cir. 2019) (“[A]n inmate’s due process rights related to . . .
evidence has at least two dimensions: (A) the qualified right
of access to such evidence and (B) the qualified right to
compel official review of such evidence.”); Howard v. U.S.
Bureau of Prisons, 487 F.3d 808, 813–14 (10th Cir. 2007);
Young v. Kann, 926 F.2d 1396, 1400–02 (3rd Cir. 1991);

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Smith v. Mass. Dep’t of Corr., 936 F.2d 1390, 1401 (1st Cir.
1991); Meis v. Gunter, 906 F.2d 364, 367 (8th Cir. 1990); cf.
Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir. 1989) (“[A]
prisoner is entitled to be . . . informed of the evidence against
him . . . .” (quoting Nieves v. Oswald, 477 F.2d 1109, 1113
(2d Cir. 1973)); Pace v. Oliver, 634 F.2d 302, 305 (5th Cir.
Unit B Jan. 1981) (holding that “an absolute policy that in no
instance will prison records be produced” to a prisoner for use
in a disciplinary hearing violates procedural due process);
Chavis v. Rowe, 643 F.2d 1281, 1286 (7th Cir. 1981)
(requiring disclosure of exculpatory evidence to insure “the
right of the [inmate] to prepare the best defense he can and
bring to the [disciplinary committee’s] attention any evidence
helpful to his case”).
The First Circuit accurately observed that “if an inmate
has a circumscribed right to present documentary evidence,
logic dictates that he must also have some possible means for
obtaining it.” Smith, 936 F.2d at 1401. Documentary evidence
can be central to a prisoner putting on a defense as the
evidence may prove exculpatory or lead the prisoner to other
evidence or witnesses. Lennear, 937 F.3d at 269. The
evidence may also corroborate a prisoner’s version of events,
which may be invaluable in presenting a defense as an
accused inmate “obviously face[s] a severe credibility
problem when trying to disprove the charges of a prison
guard.” Id. (quoting Hayes v. Walker, 555 F.2d 625, 630 (7th
Cir. 1977)).
We have held that a prisoner’s right to call a witness in a
disciplinary process, as articulated in Wolff, means that the
prison may not impose a prohibition on witnesses being
present to testify. Mitchell v. Dupnik, 75 F.3d 517, 525 (9th
Cir. 1996) (“[A] blanket denial of permission for an inmate

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MELNIK V. DZURENDA 10
to have witnesses physically present during disciplinary
hearings is impermissible, even where jail authorities provide
for interviewing of witnesses outside the disciplinary
procedure.”). The same is true with documentary evidence.
The right referenced in Wolff to “present documentary
evidence in” the prisoner’s own defense must generally
include the ability to obtain that documentary evidence in the
first place. Wolff, 418 U.S. at 566. Similarly, if a prisoner is
to be able to respond to evidence presented against him, as a
general proposition he should be allowed to know what it is
and to examine it, unless there is reason to the contrary.
To be clear, a prisoner’s right to access and prepare
evidence for a disciplinary hearing is not unlimited nor
unfettered. It may be limited by prison officials if they have
a “legitimate penological reason.” Koenig v. Vannelli,
971 F.2d 422, 423 (9th Cir. 1992). If granting a prisoner
access to the requested evidence would “be unduly hazardous
to institutional safety or correctional goals,” access may be
denied. Wolff, 418 U.S. at 566.
The penological reason must be legitimate, though, not
merely pretense or pretext. The denial of access may not be
arbitrary as “[t]he touchstone of due process is protection of
the individual against arbitrary action of government.” Id.
at 558.
For example, labeling a document “confidential” without
real confidentiality concerns is not a “legitimate penological
reason.” The mere label “confidential” attached by prison
officials without logical foundation cannot be used to prohibit
a prisoner from accessing evidence to be used in a
disciplinary hearing. See Piggie v. Cotton, 344 F.3d 674, 679
(7th Cir. 2003) (holding that refusing a prisoner access to a

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MELNIK V. DZURENDA 11
tape as “consistent with the Department of Correction’s
procedure of keeping security tapes confidential,” without
more, is not a “security reason” for withholding access).
Further, administrative efficiency is not an adequate
justification for denying a prisoner access to evidence to be
used in forming his defense. See Bostic v. Carlson, 884 F.2d
1267, 1273 (9th Cir. 1989) (“[P]rison disciplinary committees
may not deny [inmates] the right to call important witnesses
solely for the sake of administrative efficiency.”), overruled
on other grounds by Nettles v. Grounds, 830 F.3d 922 (9th
Cir. 2016) (en banc).
Prison officials may be required to provide an explanation
when they deny a prisoner access to evidence, either in the
administrative record or through testimony in court if the
denial is challenged. Zimmerlee v. Keeney, 831 F.2d 183, 187
(9th Cir. 1987) (“The reasons for denying . . . a request to
present witnesses or documentary evidence may be made by
prison officials either at the hearing or at a later time.”); see
also Ponte v. Real, 471 U.S. 491, 497–500 (1985) (requiring
prison officials to explain why a prisoner was denied the right
to call witnesses). Without such an explanation, a prison
official’s decision to deny access would effectively be made
unreviewable by courts. See id. at 498–500. The due process
rights of prisoners may not be so simply circumvented.
The prison might, for example, require a prisoner to make
an affirmative request for access to evidence he may intend
to use in his defense or that is expected to be used against
him. The request need not be extremely detailed, particularly
if the prisoner has no way of ascertaining or describing the
precise form of the evidence he seeks, but it should be
sufficient to put the prison official on notice of what is
sought. Cf. Davis v. United States, 512 U.S. 452, 459 (1994)

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MELNIK V. DZURENDA 12
(holding that to invoke the right to counsel, a suspect must
“articulate his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances
would understand the statement to be a request for an
attorney”). For example, requesting the right to inspect a
document should be understood to include the alternative of
a copy of a document whether it be in the form of a
photocopy, a photograph, or something else, unless the
prisoner specifically indicates that only the original will do.
Applying this first prong of the qualified immunity
analysis to the facts of this case, we conclude that Melnik had
a constitutional right to see the envelopes or copies of them,
as they were evidence to be used in his prison disciplinary
hearing. Melnik had a protected liberty interest at stake as he
faced administrative segregation. Brown v. Or. Dep’t of
Corr., 751 F.3d 983, 987 (9th Cir. 2014) (holding that
administrative segregation “implicate[s] a protected liberty
interest giving rise to procedural due process protections”).
He requested the evidence with sufficient clarity. No
legitimate penological reason was identified to justify the
denial of access. Melnik had a constitutional due process right
that was violated, so Defendants cannot prevail on the first
qualified immunity prong.
B. Clearly Established Right
Defendants in this case focus their challenge to the district
court’s denial of qualified immunity on the second prong of
the analysis, the “clearly established” element, and on only
part of that prong. Defendants concede that a prisoner has a
general right to access evidence and that the right was clearly
established when Melnik made his first request for copies of
the envelopes. Further, Defendants concede that “[h]ad the[]

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MELNIK V. DZURENDA 13
envelopes simply been in Melnik’s file, this would be an
entirely different story. This [denial of access] would have
been arbitrary and malicious.” Instead, Defendants raise two
“wrinkles,” to use their term, based on specific facts in this
case that, they argue, meant that the right asserted by Melnik
was not clearly established when Melnik requested copies of
the envelopes.2
Melnik argues that these factors were not raised before
the district court and should not be considered by this court.
It is true that the arguments now relied on by Defendants
were not raised below, but we have discretion to consider
such arguments if they present purely legal questions. See
Cold Mountain v. Garber, 375 F.3d 884, 891 (9th Cir. 2004).
As these arguments appear to be questions of law, we
exercise discretion to consider them. They do not persuade us
that Defendants are entitled to qualified immunity.
2 The dissent creates arguments for Defendants that they did not make
and, indeed, affirmatively rejected. Dissent at 22–23; see Oral Argument
at 8:20–8:55 (conceding that the right to disclosure of evidence was
clearly established, as a general matter, but distinguishing this instance
only because the documentary evidence at issue here was held in a vault,
though photographic copies were available). “Our circuit has repeatedly
admonished that we cannot ‘manufacture arguments for an appellant. . . .’”
Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)
(quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir.
1994)); see United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579,
1581–82 (2020) (reversing a decision of this court for failure to follow the
principle of party presentation). We decline the dissent’s invitation to do
so here. To be clear, we have not been persuaded by the argument
presented in the dissent and would reach the same conclusion even if it
was appropriate for us to consider it, but it is not, so we will not discuss
it further.

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The first factor Defendants raise is that the envelopes at
issue were stored by Defendants in an evidentiary vault for
use in possible criminal proceedings, and that location meant
that Melnik’s right to access copies of the envelopes was not
clearly established. At oral argument, Defendants explained
for the first time that the envelopes being placed in the vault
made them confidential under Nevada Department of
Corrections’ Administrative Regulation 708.01. That
provision states that “[a]ll evidence, documents, and
information related to criminal prosecution referrals are
confidential . . . .”
Withholding confidential information from a prisoner
may be a legitimate penological reason for denying a prisoner
access to evidence. Defendants have not, however, identified
anything that justified keeping these envelopes confidential
from Melnik. He was charged with smuggling drugs in those
envelopes and was ultimately held responsible for the
contents of the envelopes, presumably because he arranged
for someone outside the prison to hide the drugs in the
envelopes and mail them to him. If he was responsible for
that action, then it is difficult to understand what information
could have been revealed by the envelopes that needed to be
kept confidential from him. The envelopes would have
revealed that they were addressed to Melnik, but that was not
information that had been or could be withheld from him. It
was the thrust of the charges against him. Each envelope
would also presumably have shown the name of the sender
and a return address, but if Melnik was responsible for the
mailing, that would not have been something that logically
needed to be withheld from him either, as he would have
already known from whom the drugs came.

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MELNIK V. DZURENDA 15
We pressed Defendants on this issue at oral argument and
did not receive a persuasive response. Indeed, Defendants
appear to admit that the envelopes were labeled confidential
based on the location where they were stored rather than
based on any confidential attributes of the envelopes
themselves. Defendants conceded that the envelopes could
not have properly been withheld if they had been kept in
Melnik’s file. Where Defendants decided for themselves to
store the envelopes did not make them confidential. As noted
above, neither a confidential label nor administrative
convenience provides reason to withhold evidence.
More broadly, the fact that a matter could possibly be
referred for criminal prosecution cannot logically serve as a
valid basis to keep from a prisoner charged with a
disciplinary violation all evidence related to the alleged
violation. If it could, then prisons could avoid any obligations
under Wolff by noting a possibility of referral for prosecution.
Defendants were not required to proceed with the prison
discipline in the meantime, but having decided to do so, they
could not withhold all information about the incident from the
prisoner based only on the possibility of a future criminal
prosecution. That would run afoul of the notice requirement
clearly articulated in Wolff. See 418 U.S. at 564.
Melnik was informed of the prison disciplinary charges
and thus knew he was charged with responsibility for the
envelopes that contained drugs. The existence of Nevada
Department of Corrections’ Administrative Regulation
708.01 and the possibility of a referral for criminal
prosecution does not provide any logical explanation for why
he needed to be denied access to the envelopes or a copy of
the envelopes. More precisely, it fails to provide any

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MELNIK V. DZURENDA 16
legitimate penological reason for denying him the ability to
see them.
Further, Defendants admitted at oral argument that prison
officials could still access materials in the vault, though
approval by other agencies may have been required. In
addition, they admitted that prison officials already had
photographs of at least the front of the envelopes, which
could have been shown or made available to Melnik. Again,
administrative convenience is not an adequate justification for
denying a prisoner access to evidence. Any difficulty in
making copies once the envelopes were in the vault was not
a valid reason to deny Melnik access to them. See Bostic,
884 F.2d at 1273. Defendants did not withhold copies of the
envelopes for legitimate penological reasons.
Defendants also advanced another argument at oral
argument—that Melnik requested a “copy” of the envelopes
rather than a copy of photographs of the envelopes, a request
the prison officials would have been able to honor without
accessing the envelopes in the vault. This relates to the
specificity of the request made by Melnik. He requested a
“copy” or “photocopy” of the envelopes, in doing so he was
clearly requesting to view an accurate image of the envelopes,
regardless of how that image was created. This semantic
difference did not make the right Defendants concede was
clearly established any less clear.
Defendants acknowledge, absent these wrinkles, that the
right was clearly established such that they were on notice of
the obligation to provide access to or copies of the envelopes
to Melnik. We conclude that his right to access that
documentary evidence was clearly established and that the

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factors pointed to by Defendants did not make the right any
less clear.
III. Conclusion
We affirm the district court’s holding that Defendants are
not entitled to qualified immunity. The case is remanded to
district court for further proceedings.
AFFIRMED and REMANDED.
BENNETT, Circuit Judge, dissenting:
I agree that prisoners in disciplinary proceedings now
have a qualified right to access the prison’s evidence against
them. Majority Opinion at 7. But in my view, that right was
established in our circuit today—by the majority’s opinion.
Because defendants did not violate clearly established law, I
would hold that defendants are entitled to qualified immunity.
I therefore respectfully dissent.
A right is clearly established if it has a “sufficiently clear
foundation in then-existing precedent.” Nunes v. Arata,
Swingle, Van Egmond & Goodwin (PLC), 983 F.3d 1108,
1112 (9th Cir. 2020) (per curiam) (citation omitted). “It is
not enough that the rule is suggested by then-existing
precedent.” District of Columbia v. Wesby, 138 S. Ct. 577,
590 (2018) (emphasis added). Rather, the rule must be
“settled law, which means it is dictated by controlling
authority or a robust consensus of cases of persuasive
authority.” Id. at 589–90 (quotation marks and citations
omitted). “There need not be a case directly on point, but

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MELNIK V. DZURENDA 18
existing precedent must place the statutory or constitutional
question beyond debate.” Nunes, 983 F.3d at 1112 (emphasis
added) (quotation marks and citation omitted). In other
words, “[t]he precedent must be clear enough that every
reasonable official would interpret it to establish the
particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct.
at 590 (emphasis added).
The Supreme Court has not clearly established a
prisoner’s right to access the evidence against him in a
disciplinary proceeding. In Wolff v. McDonnell, 418 U.S. 539
(1974), the Court recognized that a prisoner facing
disciplinary proceedings has the right to: (1) advanced written
notice of the disciplinary charges; (2) an opportunity to call
witnesses and present documentary evidence in his defense,
consistent with institutional safety or correctional goals; and
(3) a written statement by the factfinder of the evidence relied
on and the reasons for the disciplinary action. Id. at 563–66.
Nowhere in Wolff did the Court decide that a prisoner must
also have access to the prison’s evidence against him. The
majority suggests that Wolff implicitly recognized a
prisoner’s right to compile evidence in his defense. Majority
Opinion at 8. But I doubt a passing comment on the prison’s
ability to limit the compilation of evidence can constitute a
clearly established right. See Wolff, 418 U.S. at 566.
That is all the more so because Wolff was not decided on
a blank slate. The court of appeals in Wolff required the
prison to provide the same due process protections as those
afforded to parolees facing parole revocation. See id. at 559.
Those protections were established in Morrissey v. Brewer,
408 U.S. 471 (1972), and they are:

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(a) written notice of the claimed violations of
parole; (b) disclosure to the parolee of
evidence against him; (c) opportunity to be
heard in person and to present witnesses and
documentary evidence; (d) the right to
confront and cross-examine adverse witnesses
. . . ; (e) a “neutral and detached” hearing
body such as a traditional parole board,
members of which need not be judicial
officers or lawyers; and (f) a written statement
by the factfinders as to the evidence relied on
and reasons for revoking parole.
Id. at 489 (emphasis added). The Supreme Court reversed the
court of appeals and decided that only some of the Morrissey
factors apply in a prison disciplinary proceeding. See Wolff,
418 U.S. at 560–62. Understanding that the Wolff rights are
a subset of the Morrissey factors leads to two natural
conclusions. First, the right to call witnesses and present
documentary evidence does not include a prisoner’s right to
disclosure of evidence against him, lest the second Morrissey
factor be redundant. Second, the Court in Wolff did not adopt
the second Morrissey factor. See id. at 563–66. And the
disciplinary process in Wolff did not otherwise require
disclosure of evidence. See id. at 552–53. Thus, the Court
held that a prison disciplinary process that did not require
disclosure of the prison’s evidence against a prisoner could
still satisfy due process. Thus, I do not read Wolff as clearly
establishing any right that would allow Melnik to compel
access to the prison’s evidence against him.
Nor can I locate such a right in our circuit’s caselaw.
There are many published decisions that discuss the rights
that Wolff did establish, such as the qualified right to call

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witnesses and present evidence. See Zimmerlee v. Keeney,
831 F.2d 183, 187 (9th Cir. 1987) (per curiam); Bostic v.
Carlson, 884 F.2d 1267, 1273 (9th Cir. 1989), overruled on
other grounds by Nettles v. Grounds, 830 F.3d 922 (9th Cir.
2016) (en banc); Koenig v. Vannelli, 971 F.2d 422, 423 (9th
Cir. 1992) (per curiam). But there are no published cases that
discuss whether the prison must disclose its evidence. Thus,
it is hardly surprising that the majority cannot cite a single
Supreme Court or Ninth Circuit case that establishes a
prisoner’s right to access the prison’s evidence (let alone
identify when that right was established in our circuit).
Majority Opinion at 8–12. Instead, every cited case either
comes from out of circuit or concerns one of the expressly
enumerated Wolff rights.
Of course, “we may look at unpublished decisions and the
law of other circuits, in addition to Ninth Circuit precedent.”
Prison Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir.
2005). But even that persuasive authority is unclear. Our
unpublished decisions are conflicted on whether a prisoner
can compel the prison to disclose its evidence against him.
Compare Sherrod v. Rardin, No. 99-56634, 2000 WL
1228999, at *1 (9th Cir. Aug. 29, 2000) (requiring prison to
grant access to videotape evidence), with Sivak v. Cluney, No.
91-35236, 1992 WL 259239, at *2 (9th Cir. Oct. 5, 1992)
(finding that a prison had no obligation to disclose all the
evidence against the prisoner). And although the majority
correctly notes that several other circuits have recognized that
prisoners must be able to access the prison’s evidence, the
Fourth Circuit is only a recent member of that group.
Majority Opinion at 8. A qualified right of access to evidence
is now clearly established in the Fourth Circuit, see Lennear
v. Wilson, 937 F.3d 257, 269 (4th Cir. 2019), but that was not
the case in 2015, when the Nevada prison officials denied

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MELNIK V. DZURENDA 21
Melnik access to the letter. At that time, the controlling
Fourth Circuit law was Young v. Lynch, 846 F.2d 960 (4th
Cir. 1988). In Young, prison officials denied a prisoner’s
request to produce a cigarette butt that was evidence of his
violation, and the court held there was no “clearly established
right to demand production of physical evidence.” Id. at 961,
963 (explaining that Wolff “does not explicitly confer this
right,” id. at 963). The Young court ultimately declined to
decide whether such a right exists, but it noted that Wolff was
“not controlling” in this context. Id. at 963–64; see also Tyler
v. Hooks, 945 F.3d 159, 169 (4th Cir. 2019) (interpreting
Young).
So, in sum, we have no Supreme Court and no Ninth
Circuit precedent establishing the right. A majority of other
circuits recognize the right, but as of 2015, at least one circuit
had declined to do so. And our unpublished decisions
conflict as to whether the right exists. Even if this precedent
might suggest the right exists, the “clearly established”
inquiry asks whether the existence of the right has been
placed beyond debate. I believe the precedent here falls far
short of that standard. See Dougherty v. City of Covina,
654 F.3d 892, 900 (9th Cir. 2011) (finding a rule not clearly
established where “[n]either this court nor the Supreme Court
has addressed [the] question” and “other Circuit Courts of
Appeal have split on similar questions”). There are panels of
our own circuit and a published decision from another circuit
that disagree with the majority’s opinion. In these
circumstances, we cannot ask state officials to predict which
decisions are right and which decisions are wrong. See
Wilson v. Layne, 526 U.S. 603, 618 (1999) (“If judges . . .
disagree on a constitutional question, it is unfair to subject

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MELNIK V. DZURENDA 22
[state officials] to money damages for picking the losing side
of the controversy.”).1
Nor is it fair to say that the defendants were on notice that
the right was clearly established because the prison
regulations require disclosure of evidence. Cf. Vazquez v.
Cnty. of Kern, 949 F.3d 1153, 1164–65 (9th Cir. 2020).
Nevada Department of Corrections Administrative
Regulation 707 (“AR 707”) provides that “the inmate shall
receive copies of any evidentiary documents, which the
Disciplinary Hearing Officer considers, except in cases where
non-disclosure has been approved under the ‘confidential
information’ provisions of this Code.” But AR 707 is not
descriptive of the prisoner’s constitutional rights. See
Furnace v. Sullivan, 705 F.3d 1021, 1027 (9th Cir. 2013).
AR 707 doesn’t even align with the constitutional right as
described in the majority’s opinion, which allows the prison
to limit disclosure for reasons other than confidentiality.
Majority Opinion at 10. Moreover, the rules and regulations
concerning the disclosure of evidence often extend much
further than the Constitution requires. See United States v.
Muniz-Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013)
(“[Federal Rule of Criminal Procedure] 16 is . . . broader than
Brady.”). Thus, AR 707 does not put officials on notice of a
prisoner’s constitutional right to disclosure of evidence
against him.
Rather than conduct this analysis, the majority relies on
the fact that defendants have “concede[d] that a prisoner has
1 Given the conflicting persuasive authority, this is not a case in which
the unconstitutionality of the defendants’ conduct is so obvious as to not
require a case on point. See A.D. v. Cal. Highway Patrol, 712 F.3d 446,
455 (9th Cir. 2013).

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MELNIK V. DZURENDA 23
a general right to access evidence and that the right was
clearly established when Melnik made his first request for
copies of the envelopes.” Majority Opinion at 12. But
whether a right was clearly established is a question of law,
see Morales v. Fry, 873 F.3d 817, 821 (9th Cir. 2017), and
“[w]e are not bound by a party’s concession as to the
meaning of the law,” United States v. Ogles, 440 F.3d 1095,
1099 (9th Cir. 2006) (en banc). Concessions that are “likely
to affect a number of cases in the circuit” do not “relieve this
[c]ourt of the duty to make its own resolution of such issues.”
Deen v. Darosa, 414 F.3d 731, 734 (7th Cir. 2005) (citation
omitted). Besides, we may even consider an issue sua sponte
“if failure to do so would result in manifest injustice, or if the
opposing party will not suffer prejudice.” Hall v. City of Los
Angeles, 697 F.3d 1059, 1071 (9th Cir. 2012). Here, there is
no prejudice because the district court decided and Melnik
briefed on appeal whether the right was clearly established.
See Garvin v. Cook Invs. NW, SPNWY, LLC, 922 F.3d 1031,
1034 n.1 (9th Cir. 2019). Yet there is manifest injustice in
allowing the defendants’ concession to stand—it precludes
future defendants from challenging whether the right was
clearly established.
A state official who looked at Wolff, then looked at our
circuit’s caselaw (or lack thereof), and then resorted to
nonprecedential authority, would be left with at least some
uncertainty about what the rule in our circuit was before
today. The consequence of the majority’s decision is that six
Nevada officials will be personally liable for conduct that we

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have only now decided is unconstitutional.2 Thus, I
respectfully dissent.
2 Some defendants do not even appear to be personally involved in the
violation of Melnik’s rights. For instance, James Dzurenda (the Director
of Corrections) is only the recipient of Melnik’s second level grievance,
to which Dzurenda had not responded at the time of the complaint. Cf.
Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014). But the
defendants, for some reason, have elected to litigate this case without
distinguishing between individual defendants. I express no view on
whether the interests of justice would (or could) allow them to change that
strategy going forward.

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