Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding; D.C. No. CV-83-1022-RCB.
Tang and Noonan, Circuit Judges, and Shubb, District Judge.**fn**
James Piatt, a pro se prisoner, filed two actions (later consolidated) under 42 U.S.C. § 1983 against various individual Arizona prison officials alleging that a search of his cell and subsequent confiscation of materials therefrom violated his rights under the first, fourth, fifth, sixth, eighth, and fourteenth amendments to the federal Constitution. The district court granted partial summary judgment for the defendants on all of Piatt's claims except the sixth amendment denial of access to the courts count. A jury awarded Piatt $300 in damages against one defendant, Bill Kangas, for violations of his sixth amendment rights, and denied his claims against the remaining defendants. The court denied Kangas's motions for judgment notwithstanding the verdict (JNOV) and for reconsideration of the denial of judgment notwithstanding the verdict. Piatt appeals the grant of partial summary judgment, the district court's denial of various motions for discovery and sanctions, the exclusion of certain evidence, and the court's alleged failure to protect his ability to litigate this suit. Kangas appeals the denial of judgment notwithstanding the verdict. We reject both Piatt's and Kangas's arguments and affirm.
I. The Grant of Partial Summary Judgment
In granting summary judgment, the district court dismissed Piatt's first, fourth, fifth, eighth, and fourteenth amendment claims. Piatt contests on appeal the dismissal of all but the fourth and eighth amendment claims.
Piatt's first amendment claim appears in two forms -- a free exercise claim and a free expression claim.
1. Free exercise of religion
Piatt objected that prison officials removed certain religious materials concerning the Sikh and Aryan Nations from his cell and did not return them. He argues that the loss of these materials impinged on his religious freedom.
In order to make out a claim of first amendment infringement, prisoners must demonstrate that the challenged state action actually and unreasonably impaired their ability to practice their religion. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 352 (1987); Johnson v. Moore, 926 F.2d 921, 923 (9th Cir. 1991), amended, No. 89-35867, slip op. 4741, 4747 (April 15, 1991) (per curiam) (first amendment requires only that prisoner be afforded a "'reasonable opportunity' to exercise [her or] his faith"). Piatt did not argue, let alone evidence, that the loss of these materials in any way inhibited or impacted his ability to exercise his religion. Because he failed to demonstrate a burden on his free exercise rights, we affirm the grant of summary judgment on this aspect of Piatt's first amendment claim.
2. Free expression and association
Piatt also alleged that the search and seizure amounted to official retaliation against him for the exercise of his first amendment right to litigate on his own and others' behalf.
Bare allegations of retaliation will not avoid summary judgment. See Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th Cir. 1985). Piatt needed to create a genuine issue of material fact in order for his claim to survive. Oltarzewski v. Ruggiero, 830 F.2d 136, 138-39 (9th Cir. 1987). Piatt, however, offered no affidavits or evidence buttressing his claim of retaliatory motive or his assertion that no one else was searched. He does not deny, moreover, that he had accumulated large amounts of materials in his cell (a potential safety hazard) or that contraband (marijuana plants) was discovered. Piatt also did not introduce any evidence challenging the legitimacy of the prison's articulated purpose for the search and seizure. The grant of summary judgment is therefore affirmed.*fn1
B. Due Process (Fifth and Fourteenth Amendments)
Piatt argues that the district court should not have dismissed his claim that his property was taken and destroyed without due process. He attempts to distinguish Hudson v. Palmer, 468 U.S. 517 (1984), on the ground that it does not apply to the detention or destruction of property for retaliatory purposes.
In Hudson, 468 U.S. at 533, the Supreme Court held that the due process clause required only that states provide an inmate a meaningful post-deprivation remedy for property losses caused by the random and unauthorized acts of prison officials. Contrary to Piatt's assertion, this holding applies regardless of whether the prison official acted intentionally, maliciously, or just negligently. Id. Under Hudson, the due process clause cares not what the mindset or purpose of the state actor is. It demands only that the state provide the victim of the deprivation an adequate avenue for redressing the loss.
Piatt argues further that Arizona did not provide him a constitutionally adequate means of litigating his property loss claim. He contends that, at the time he commenced his actions, Arizona law did not expressly provide for a waiver of court filing fees for indigents.*fn2 He asserts that, in fact, Arizona courts have refused to waive court costs for indigents.
In so arguing, Piatt misreads the Arizona precedents. Piatt cites, as evidence of the State's unwillingness to waive court fees, the Arizona Supreme Court's opinion in Tahtinen v. Superior Court, 130 Ariz. 513, 637 P.2d 723 (1981), cert. denied, 454 U.S. 1152 (1982). In Tahtinen, however, the court did not expressly preclude a waiver of fees for indigents. In fact, the supreme court stated that fees would be waived for indigents whose cases implicated fundamental rights that could only be vindicated through the court system. Id., 130 Ariz. at 515, 637 P.2d at 725. Thus, to the extent Piatt's claims asserted violations of his fundamental constitutional rights, authority did exist for a fee waiver.
Moreover, even if a fee waiver would not have been granted, Arizona law provides for the extension of time for payment of court fees. Ariz. Rev. Stat. § 12-302. Piatt made no showing that he could not have negotiated a palatable plan for the long-term payment of the fees.
In sum, had Piatt attempted to avail himself of the remedial processes afforded by state law (such as a tort action against prison officials, Ariz. Rev. Stat. § 12-821), he might have been successful. Mere hypothesizing about the absence of a state remedy alone will not make out a violation of the due process clause. We thus affirm the grant of summary judgment on Piatt's due process (fifth and fourteenth amendments) claim.
C. Equal Protection (Fourteenth Amendment)
Piatt alleges that the officials' selective application of the search procedure against him violated his constitutional right to equal protection of the laws. Because he is a prisoner and does not claim that he was discriminated against because of his membership in any suspect or quasi-suspect class, the search was constitutional if it was reasonably related to ...