Appeal from the United States District Court for the Eastern District of Washington. D.C. No. C-89-770-JBH ROGACIANO GONZALES MENDOZA,. D.C. No. C-89-770-JBH. James B. Hovis, Magistrate, Presiding. Original Opinion at:,.
Before: Procter Hug, Jr., John T. Noonan, Jr. and David R. Thompson, Circuit Judges. Opinion by Judge Thompson.
Rogaciano Gonzales Mendoza, an inmate at the Washington State Penitentiary at Walla Walla ("the prison") filed a civil rights action pursuant to 42 U.S.C. § 1983. Mendoza alleged that the defendants, administrators and correctional officers at the prison, deprived him of procedural due process under the fourteenth amendment in the implementation of the prison's "dry cell" policy*fn1 and the prison's and state's visitation policy. The district court*fn2 granted summary judgment for the defendants. Mendoza appeals the district court's determination that the defendants are entitled to qualified immunity;*fn3 the defendants cross-appeal the district court's determination that Mendoza had a protected liberty interest under the prison's dry cell policy and under visitation regulations promulgated by the prison and the state.
We have jurisdiction under 28 U.S.C. § 1291 and we affirm. We hold that Mendoza had a state-created liberty interest under the prison's dry cell policy which gave him a right to procedural due process. The defendants violated this right, but they are entitled to qualified immunity.
We also hold that Mendoza had a state-created liberty interest which entitled him to procedural due process under the prison's and the state's visitation regulations; the defendants did not violate this right.
On September 29, 1989, Mendoza was visited by his wife ("Mrs. Mendoza") and six children in the visiting room of the prison. Correctional officers monitored the visit. Mendoza's children requested use of the restroom. A correctional officer unlocked the door and prepared to lead the children to the restroom. She noticed on the floor a balloon covered with a white slimy substance and the tip bitten off. No other prisoners or visitors had been in the area.
The officer informed her supervisor, who in turn contacted Associate Superintendent Lambert. According to the defendants, Lambert knew from his years of experience that balloons commonly were used to smuggle drugs into the institution. Lambert claimed he had a reasonable belief that Mendoza had ingested a balloon or balloons filled with narcotics.
Mendoza was charged with an infraction of prison rules and placed on a dry cell watch. Under this procedure, an inmate is placed in a custody-locked cell for the purpose of maintaining and inspecting at least three consecutive normal bowel movements for contraband. According to the dry cell procedure in place at the time of the incident, "feces watches are implemented to recover contraband believed, with reasonable suspicion, to be carried internally by an inmate." Former Institutional Order (I.O.) 09.053.*fn4 "Feces Watch searches shall normally be concluded within 84 hours or after the equivalent of three normal bowel movements, whichever occurs first." Id.
Mendoza's dry cell watch began at 8:40 p.m. on September 29, 1989. He was placed in a hospital cell, strip-searched and given a clean pair of shorts. He slept on a mattress on the floor without a blanket, conforming with the dry cell watch requirement that the hands of a prisoner be visible at all times. Mendoza was held in the cell for 24 hours. During that time he was fed three meals and he defecated five times. The prison authorities found no contraband.
Mendoza was released from the watch at 8:41 p.m. on September 30, 1989. Within five days thereafter, a hearing was held on the infraction charge. Mendoza was found guilty of attempting to smuggle illegal contraband into the institution. However, on November 3, Superintendent Blodgett conducted his own investigation and determined that although the corrections officers had reasonable suspicion to place Mendoza on the dry cell watch, there was insufficient evidence of Mendoza's direct involvement in smuggling, and the infraction was dismissed.
Notwithstanding the dismissal of the infraction charge, Mendoza's visitation privileges with his wife and children were suspended for 90 days. In a letter to Mrs. Mendoza, Blodgett stated that "due to your history of attempting to introduce contraband into this institution by way of your children, I have no recourse but to believe this was again your intention."
The district court granted summary judgment, dismissing Mendoza's civil rights action in which he sought to vindicate his asserted rights to procedural due process under the dry cell policy and under the visitation regulations. This appeal followed.
We review a district court's grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937, 110 S. Ct. 3217, 110 L. Ed. 2d 664 (1990).
B. Liberty Interest Created by the Dry Cell Watch Procedure
1. State-Created Liberty Interests
The fourteenth amendment provides that no state shall "deprive any person of life, liberty, or property without due process of law...." U.S. Const. amend XIV, § 1. Mendoza argues that he possesses a liberty interest, requiring prison officials to follow the procedures outlined in the former dry cell watch regulation, as well as those set forth in Washington Administrative Code sections involving administrative segregation.
A liberty interest may arise from either of two sources: the due process clause or state law. Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983); Toussiant v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986), cert. denied, 481 U.S. 1069, 95 L. Ed. 2d 871, 107 S. Ct. 2462 (1987). Mendoza does not argue that the due process clause itself provides him the liberty interest he contends was abridged. Rather, he ...