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Wilson v. Demosthenes

*fn* submitted: July 29, 1992.

LARRY WILSON, PLAINTIFF-APPELLANT,
v.
PETER DEMOSTHENES, DEFENDANT, AND GEORGE DEEDS, WARDEN, ET AL., DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-N-90-400-HDM. Howard D. McKibben, District Judge, Presiding

Before: Tang, Beezer, and Kozinski, Circuit Judges.

MEMORANDUM

Larry Wilson, a Nevada state prisoner, appeals pro se the district court's summary judgment for George Deeds, Stephanie Nixon, and Charles Wolff in Wilson's 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937 (1990), and affirm in part, vacate and remand in part.

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catratt, 477 U.S. 317, 323 (1986). The moving party must demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 324. The nonmoving party then must go beyond the pleadings and affidavits and designate "specific facts showing there is a genuine issue for trial." Id. (quoting Fed. R. Civ. P. 56(e)). When reviewing summary judgment, this court views the evidence in the light most favorable to the nonmoving party. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).

Wilson was a maximum close custody inmate in Nevada State Prison. Because the prison was being downgraded from a maximum close custody institution to a medium custody institution, Wilson was transferred to Ely State Prison, Nevada's new maximum security prison. At the time of the transfer, Wilson was serving disciplinary segregation time in a maximum lock-down unit for violating institutional rules.

Following his transfer, Wilson filed a civil rights complaint against Peter Demosthenes, Deeds, Nixon, and Wolff, alleging in Count I that they violated his right to due process of law guaranteed by the Fourteenth Amendment by transferring him from Nevada State Prison to Ely State Prison on September 6, 1989 without notifying him of the reason for the transfer and without conducting a Classification Committee hearing prior to his transfer.*fn1 In Count II Wilson alleged he was denied due process because he lost certain privileges as a result of the transfer. In Count III Wilson alleged he should have been released into the general prison population at Ely State Prison.

I

Transfer

A liberty interest protected by the due process clause of the Fourteenth Amendment may arise from the clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466 (1983). An inmate has no protectible constitutional liberty interest in being confined to a particular institution under the due process clause of the Fourteenth Amendment. Meachum v. Fano, 427 U.S. 215, 225 (1976). Therefore, any protectible liberty interest concerning involuntary intra-state institution transfers must be state-created. See id. at 225-26. To demonstrate a liberty interest in such a transfer, an inmate must show there are particularized standards that guide and substantially limit the discretion of the decision-makers. Olim v. Wakinekona, 461 U.S. 238, 249 (1983).

Nevada does not create any protectible liberty interest concerning intrastate involuntary transfers that do not involve an increase in the assigned custody of the inmate. See Nev. Dep't of Prisons Admin. Reg. 552 ("an inmate does not have any rights regarding a transfer or any particular placement within the Nevada Department of Prisons system."). Moreover, the Nevada regulations do not create a protectible liberty interest in a reclassification hearing prior to transfer. Id.

Here, Wilson contends he was entitled to a reclassification hearing prior to his transfer. This contention is without merit. Nevada inmates are not entitled to a reclassification hearing prior to their transfer. See id. Thus, Ely State Prison officials did not deny Wilson due process by transferring him without a prior hearing.*fn2 Therefore, the district court properly granted summary judgment on Count I. See Celotex, 477 U.S. at 323.

II

Loss of Privileges

A. Credit for Educational ...


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