Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-83-01152-EJG. Edward J. Garcia, District Judge, Presiding.
Before: Browning, Poole, and Wiggins, Circuit Judges.
In this consolidated appeal, Marion F. Miller, Jr., a California state prisoner, appeals pro se the district court's grant of summary judgment in favor of the appellees in Miller's 42 U.S.C. § 1983 action. We review de novo, Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986), and we affirm.
Transfer to Restrictive Housing Unit
Miller contends that he was denied due process when prison officials transferred him to a restrictive housing unit (RHU) during an emergency prison lockdown without notice and a hearing. This contention lacks merit.
"It is axiomatic that due process is flexible and calls for such procedural protections as the particular situation demands." Toussaint v. McCarthy, 801 F.2d 1080, 1098 (9th Cir. 1986) (quotations omitted), cert. denied, 481 U.S. 1069 (1987). Generally, when a prisoner is placed in administrative segregation, and that prisoner has a liberty interest in being free from administrative segregation, due process requires that prison officials hold an informal hearing within a reasonable time after the prisoner is segregated. Id. at 1100. Prison officials must inform the prisoner of their reasons for segregating him and allow the prisoner to present his views. Id.; see also Hewitt v. Helms, 459 U.S. 460, 476 (1983) (ordinarily a written statement by the inmate will accomplish the purpose of allowing a prisoner an opportunity to present his views). In contrast, during a prison-wide emergency lockdown, a California prisoner has no protected liberty interest, and therefore has no due process right to notice or a hearing. Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980), cert. denied, 451 U.S. 937 (1981).
Here, on September 23, 1983, prison officials transferred Miller to RHU in accordance with the prison warden's "policy of emergency lock downs." On October 4, 1983, a classification hearing was held, and Miller voiced his objection to the transfer. Nevertheless, the district court found that "the hearing served to remove [Miller] from his work assignment, and not to review his placement in RHU." On September 27, 1983, Miller also filed an administrative complaint challenging his placement in RHU. On October 5, 1983, a prison official responded to this complaint and stated that Miller was being held in RHU because he had been seen associating with known gang members who had been involved in violent attacks on other inmates. In November 1983, Miller was returned to the general prison population.
The district court did not err by granting the defendants' motion for summary judgment. First, it is not clear that Miller had a constitutionally protected liberty interest in freedom from placement in RHU during an emergency prison lockdown. Compare Toussaint, 801 F.2d at 1098 (California "has created a liberty interest in freedom from administrative segregation") with Hayward, 629 F.2d at 603 (a prisoner does not have a due process right to a hearing where prison officials implement an emergency lockdown). See also Cal. Code Regs. tit. 15, § 3383(a) (1992) (warden has discretion to confine inmates to their quarters or to impose a lockdown to control a widespread institutional disturbance). Nevertheless, we need not decide whether Miller had a protected liberty interest because even if he did, he received all the process he was due. Given the emergency that existed at the prison, Miller received sufficient notice of the charges against him and an opportunity to be heard through his administrative appeal. See Hewitt, 459 U.S. at 476; Toussaint, 801 F.2d at 1098. Accordingly, Miller's transfer to RHU did not constitute a denial of his due process rights. See id. Moreover, Miller's claim that prison officials did not have adequate evidence to substantiate their allegations of gang membership lacks merit. See Toussaint, 801 F.2d at 1105 ("the exigencies of prison administration allow prison administrators to make segregation decisions on the basis of 'some evidence,' including the administrator's experience and awareness of general prison conditions").
A. Prison Cell and Outdoor Exercise
Miller contends that prison officials violated his eighth amendment rights because they placed him in an inadequately-sized prison cell with another inmate and restricted his access to outdoor exercise. These contentions lack merit.
Although prison officials may not deprive prisoners of the basic necessities protected by the eighth amendment, "when a genuine emergency exists, prison officials may be more restrictive than they otherwise may be, and certain services may be suspended temporarily." Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982) (citation omitted). "The transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence." Hewitt, 459 U.S. at 468. Prison officials may temporarily limit a prisoner's outdoor activities during an emergency. Hayward, 629 F.2d at 603.
Here, prison officials placed Miller in RHU pursuant to the warden's "policy of emergency lock downs." In his deposition testimony, Miller stated that he was allowed to exercise in the yard approximately every other day. Given the genuine emergency that existed, Miller received adequate outdoor exercise while he was confined to RHU. Accordingly, prison officials did not violate Miller's eighth ...