From Casetext: Smarter Legal Research

Frank v. Schultz

United States Court of Appeals, Ninth Circuit.
Dec 14, 2015
808 F.3d 762 (9th Cir. 2015)

Summary

denying existence of constitutional claim rather than holding claim to be moot where prisoner had filed a successful administrative appeal that led to the removal of the incident report from his file and the forfeited credits were restored

Summary of this case from Ray v. Sullivan

Opinion

No. 14–55890.

12-14-2015

Tobias A. FRANK, Plaintiff–Appellant, v. Derrick SCHULTZ, Correctional Counselor, individually and in official capacity ; R. Byrd, Disciplinary Hearing Officer, individually and in official capacity, Defendants–Appellees.

Tobias A. Frank, Fairton, New Jersey, pro se Plaintiff–Appellant. Stephanie Yonekura, Acting United States Attorney; Leon W. Weidman, Assistant United States Attorney, Chief, Civil Division; and David Pinchas, Assistant United States Attorney, Los Angeles, CA, for Defendants–Appellees.


Tobias A. Frank, Fairton, New Jersey, pro se Plaintiff–Appellant.

Stephanie Yonekura, Acting United States Attorney; Leon W. Weidman, Assistant United States Attorney, Chief, Civil Division; and David Pinchas, Assistant United States Attorney, Los Angeles, CA, for Defendants–Appellees.

Appeal from the United States District Court for the Central District of California, John A. Kronstadt, District Judge, Presiding. D.C. No. 5:12–cv–01848–JAK–SS.

Before A. WALLACE TASHIMA, JOHN B. OWENS, and MICHELLE T. FRIEDLAND, Circuit Judges.

OPINION

PER CURIAM:

Federal prisoner Tobias A. Frank appeals pro se from the district court's summary judgment in his action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging First and Fourteenth Amendment violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Nunez v. Duncan, 591 F.3d 1217, 1222 (9th Cir.2010). We affirm.

We address Frank's First Amendment retaliation claim in a concurrently filed memorandum disposition.

This action arises from Frank signing as a "witness" another inmate's document, which Correctional Counselor Derek Schultz believed was contraband under prison policy. As a result, Schultz issued Frank an incident report charging him with "Possession of Anything Unauthorized." Disciplinary Hearing Officer Rosie Byrd conducted a disciplinary hearing, found that Frank had committed "Conduct which Interferes with the Security or Orderly Running of the Institution" (a different charge), and sanctioned Frank with the loss of fourteen days of good time credits. However, Frank filed a successful administrative appeal, and ultimately the incident report was removed from his file and his credits were restored. Frank then filed the instant action alleging that he had been deprived of due process because, among other things, Frank had not received advance written notice that Byrd was modifying the charge.

The prison policy was based on a part of the Court Security Improvement Act, 18 U.S.C. § 1521, which prohibits filing or attempting to file false liens against federal employees.

Frank was also sanctioned with the loss of commissary and visitation rights for three months. Because Frank does not raise this loss in his opening brief, he has waived the issue. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.2001) ("[I]ssues which are not specifically and distinctly argued and raised in a party's opening brief are waived.").

The district court properly granted summary judgment on Frank's due process claim because, as our sister circuits have recognized, any procedural error was corrected through the administrative appeal process, and Frank ultimately did not lose any good time credits. See Wycoff v. Nichols, 94 F.3d 1187, 1189 (8th Cir.1996) ("[T]he [administrative] reversal of the case against Wycoff constituted part of the due process Wycoff received, and it cured the alleged due process violation based on the [prison] disciplinary committee's initial decision to sanction Wycoff."); Morissette v. Peters, 45 F.3d 1119, 1122 (7th Cir.1995) (per curiam) ("There is no denial of due process if the error the inmate complains of is corrected in the administrative appeal process. The administrative appeal process is part of the due process afforded prisoners." (citation omitted)); Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir.1992) (per curiam) ("[W]e need not decide whether Young suffered a denial of due process in connection with his disciplinary hearing, because ... [t]he administrative reversal constituted part of the due process protection he received, and it cured any procedural defect that may have occurred.").

See also Torricellas v. Poole, 954 F.Supp. 1405, 1414 (C.D.Cal.1997) ("Where a procedural error has been corrected in the administrative process, as it was here, there has been no compensable due process violation. The administrative appeal is considered part of the process afforded, and any error in the process can be corrected during that appeals process without necessarily subjecting prison officials to liability for procedural violations at lower levels."), aff'd, 141 F.3d 1179 (9th Cir.1998) (unpublished) (affirming for the reasons stated by the district court).
--------

AFFIRMED.


Summaries of

Frank v. Schultz

United States Court of Appeals, Ninth Circuit.
Dec 14, 2015
808 F.3d 762 (9th Cir. 2015)

denying existence of constitutional claim rather than holding claim to be moot where prisoner had filed a successful administrative appeal that led to the removal of the incident report from his file and the forfeited credits were restored

Summary of this case from Ray v. Sullivan

affirming summary judgment on due process claims regarding the loss of 14 days of good-time credits because "any procedural error was corrected through the administrative appeal process," through which the prisoner's credits had already been restored

Summary of this case from Armenta v. Paramo
Case details for

Frank v. Schultz

Case Details

Full title:Tobias A. FRANK, Plaintiff–Appellant, v. Derrick SCHULTZ, Correctional…

Court:United States Court of Appeals, Ninth Circuit.

Date published: Dec 14, 2015

Citations

808 F.3d 762 (9th Cir. 2015)
15 Cal. Daily Op. Serv. 13
2015 Daily Journal D.A.R. 13

Citing Cases

Reynolds v. Cal. Dep't of Corr. & Rehab.

If the procedurally protected liberty interest of which the prisoner is deprived during the disciplinary…

Williams v. Davey

A due process claim is not cognizable where the alleged procedural error has been corrected through the…