Nos. 89-16036, 90-16038.

United States Court of Appeals, Ninth Circuit.

Before TANG and NOONAN, Circuit Judges, and SHUBB,** District Judge.

MEMORANDUM***

James Piatt, a pro se prisoner, filed two actions (later consolidated) under 42 U.S.C. Sec. 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.

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.

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.

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.1

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.2 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. Sec. 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. Sec. 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.

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 a legitimate penological interest. Michenfelder v. Sumner, 860 F.2d 328, 331 (9th Cir.1988).

The analysis of the propriety of summary judgment on this claim parallels that applied under the first amendment (free expression) claim. Piatt failed to introduce any factual underpinning for his allegations of discriminatory treatment. Therefore, summary judgment was appropriate.

Piatt argues that the district court abused its discretion by denying discovery of materials obtained by other inmates in their lawsuits against prison officials arising out of the same search of Piatt's cell. He seeks a reversal of the discovery order and a new trial.

The district court denied discovery on the grounds that it was overbroad and irrelevant. At the time his discovery motion was filed, Piatt's case was limited to his claim that the prison officials' actions had inhibited his ability to prosecute his own lawsuits (namely, postconviction relief and a suit against the Veterans Administration for educational benefits). He was not litigating a broad, class-action against the prison for obstructing numerous inmates' access to the courts. As a result, the district court did not abuse its discretion in concluding that evidence pertaining to other inmates' claims that their sixth amendment rights had been burdened was not relevant to what Piatt needed to prove in order to win his claims, nor was it likely to lead to the discovery of evidence pertaining to his specific claims.

Given that Piatt ultimately prevailed on his sixth amendment claim, moreover, the lack of discovery was harmless error and does not warrant ordering a whole new trial. The district court's effort to confine discovery to the issues being litigated was a reasonable exercise of its authority to manage discovery and was not an abuse of discretion.

Piatt challenges the district court's failure to impose sanctions against Kangas for improper filings, Fed.R.Civ.P. 11, and failure to comply with discovery, Fed.R.Civ.P. 37(b).

Piatt objects first to the court's refusal to sanction Kangas for alleged noncompliance with discovery orders concerning the conduct of written depositions of other inmates and the return to Piatt of his legal files.

With respect to Piatt's claim on the return of files, the district court explained that Piatt misunderstood the nature of the court's order. The court had not ordered the return of all legal materials to Piatt. It simply ordered that he be allowed to examine his property, so that he could locate needed legal materials. The court found that, based on the testimony of a prison official who had reviewed the contents of the boxes containing Piatt's property, all legal materials had been returned to Piatt. Finding that Kangas had thus complied with its order, the court denied sanctions.

This denial was not an abuse of discretion. See North American Watch Co. v. Princess Ermine Jewels, 786 F.2d 1447, 1450 (9th Cir.1986). By its very text, Fed.R.Civ.P. 37(b) precludes the award of discovery sanctions unless a party in fact failed to comply with an order. Absent proof of actual noncompliance, Piatt was not entitled to sanctions.

With respect to Kangas's compliance with the order for written depositions, the court found the motion premature because "defendants are still in the process of complying with the Court's discovery orders." The court also found that Kangas had acted in good faith. Kangas had sent a letter to Piatt outlining a procedure for conduct of the written depositions. The letter specifically invited Piatt to express in writing any objections he had to the proposal. Piatt never responded to Kangas's offer. Under these circumstances, the denial of sanctions was not an abuse of discretion.

Piatt questions, secondly, the district court's denial of sanctions against Kangas when Kangas sought a protective order against the discovery of evidence compiled in other inmates' sixth amendment litigation against the prison. Piatt apparently seeks sanctions under Fed.R.Civ.P. 11 in this instance, since he challenges arguments made by Kangas against discovery, and not his noncompliance with a discovery order. Because Kangas prevailed on his motion, the district court correctly ruled that sanctions were inappropriate.

Piatt sought sanctions, again apparently under Rule 11, for Kangas's conduct in preparing the pretrial order. Piatt complains that Kangas altered portions of his draft and omitted the demand for a jury trial. The court denied sanctions, finding that Kangas had complied with its directives concerning the drafting of the pretrial order.

We affirm the denial of sanctions because there was no evidence of either noncompliance or a lack of good faith on the part of Kangas. A cover letter sent to Piatt with the proposed pretrial order explained that language changes were made in his draft in order to conform to local rules of practice. Also, Piatt offered no evidence rebutting Kangas's assertion that the omission of the jury demand was inadvertent. It was also harmless, as Piatt had already requested a jury in his complaint and did in fact get a jury trial. Given the dearth of evidence of noncompliance, lack of good faith, or prejudice, the denial of sanctions was not an abuse of discretion.

Piatt also challenges on appeal the district court's failure to award sanctions for alleged misrepresentations made by the Assistant Attorney General to the court concerning the preparation of the pretrial order. Specifically, Piatt objected to the statement that "defendants attempted for many weeks to formulate with plaintiff a joint pretrial order." Copies in the record of correspondence between the Attorney General's office and Piatt reveal that Piatt's attempt to characterize the above statement as a lie is simply incorrect. The correspondence reveals the attorney's efforts to hammer out a joint agreement. Because Piatt lacked evidence of an actual misrepresentation to the court, the denial of sanctions was not an abuse of discretion.

Finally, Piatt challenges the propriety of the denial of sanctions for Kangas's post-trial behavior. Piatt specifically challenges (1) attempts by Kangas to obtain from a third party files that Piatt asserts were protected by attorney-client privilege; (2) an "attempted" statement to the court concerning Piatt's willingness to appear for trial; (3) Kangas's failure to submit in a timely fashion a copy of his proposed jury instructions to him; (4) the insertion of an allegedly erroneous jury instruction on punitive damages; (5) misstatement of a filing date in Kangas's JNOV motion; and (6) Kangas's argument in his JNOV papers that Piatt had not proved prejudice.

With respect to the first three arguments, we affirm the denial of sanctions because the described conduct does not fall within the scope of either Fed.R.Civ.P. 11 or 37(b). Kangas's actions involved neither compliance with discovery orders nor the filing of papers with the court.

The punitive damages instruction submitted by the defendants and delivered essentially verbatim by the district court did not lack an arguable basis in law. See Stewart v. American Int'l Oil & Gas Co., 845 F.2d 196, 201 (9th Cir.1988). It required the jury to award punitive damages only if the defendants acted maliciously or wantonly, and to affix the amount of such damages in a careful, deliberate, and non-emotional manner. The source of this instruction was 3 E. DeVitt, C. Blackmar & M. Wolff, Federal Jury Practice and Instructions Sec. 85.19 (4th ed. 1987). The proposed text did not sufficiently deviate from model jury instructions approved by the Ninth Circuit to make its recommendation frivolous. Cf. Committee on Model Jury Instructions, Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit Sec. 14.04I (1985 ed.). The instruction thus had an arguable basis in law.

The denial of sanctions for the misstatement of a filing date is also affirmed. Absent evidence that a misstatement was purposeful or prejudicial, minor errors in pleadings do not merit sanctions. Piatt introduced no evidence that the citation of the incorrect date was the product of Kangas's failure to conduct a reasonable inquiry before filing his motion.

Lastly, Kangas's argument in support of JNOV--that Piatt had not introduced substantial evidence of prejudice--had an arguable basis in law and fact.

We therefore conclude that the denial of sanctions on these claims was not an abuse of discretion.

IV. Evidence of Other Inmates' Allegations and Litigation

Piatt argues that the district court erred by excluding character and bad act evidence pertaining to Kangas. Specifically, the court excluded evidence of 1) an unsuccessful criminal prosecution of Kangas for allegedly molesting his son; 2) another inmate's homosexual palimony suit against Kangas; 3) another inmate's suit alleging that Kangas demanded sex in exchange for admission to the law library; 4) other litigation against Kangas alleging sixth amendment denial of access to the courts claims; and 5) another court's non-final order identifying a pattern of sixth amendment abuses by prison officials, including Kangas.

The district court denied on relevancy grounds Piatt's attempt to introduce evidence of an unsuccessful criminal prosecution of Kangas for allegedly molesting his son. This decision was not an abuse of discretion. First, that Kangas was acquitted of the charge casts substantial doubt on its probative value or relevance to the witness's credibility.

Second, Kangas's sexual practices were in no way implicated by Piatt's suit alleging two specific instances of denial of access to the courts. Piatt does not argue that the allegation could in any way prove Kangas's motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in the violation of his sixth amendment rights. See Fed.R.Evid. 404(b). Indeed, the highly prejudicial nature of such an allegation suggests that admission of such testimony would have been an abuse of discretion. See Cohn v. Papke, 655 F.2d 191, 194-95 (9th Cir.1981) (court abused its discretion in admitting evidence of sexual practice that had " 'an enormous proclivity for humiliation and degradation of a participant in a fashion completely unrelated to testimonial honesty' ") (quoting Tinker v. United States, 417 F.2d 542, 544-45 (D.C.Cir.), cert. denied, 396 U.S. 864 (1969)). Moreover, because Piatt prevailed in his suit against Kangas, the error, if any, was harmless.

The district court's exclusion of evidence of a homosexual palimony suit is affirmed for the same reasons as the child molestation evidence. It is wholly unrelated to any aspect of the sixth amendment claims at issue. Evidence of allegations, as opposed to a verdict, bears little on witness credibility. Its prejudicial potential was quite substantial, and its exclusion (if error at all) was harmless.

The district court excluded this evidence on relevancy grounds. It correctly found the evidence irrelevant because the alleged conduct occurred after the events at issue in the trial. The evidence thus could not demonstrate that the search of Piatt's cell culminated a pattern of abusive behavior. Also, as with the prior two claims, the probative value of unproven allegations is minimal at best.

The district court's balancing of probative value (relevance) and prejudicial impact was not an abuse of discretion. See Cohn, 655 F.2d at 194-95. We have long recognized the unduly prejudicial impact of allegations of abnormal or socially disparaged sexual behavior. Id. Even were the exclusion improper, it was harmless error because Piatt prevailed.

As with the prior claim, the court excluded this evidence because it occurred after the incident giving rise to Piatt's litigation. We affirm because, even assuming the evidence was improperly excluded, Piatt's ultimate success reveals that it was harmless error.

Finally, Piatt sought to introduce an order issued by another district court in Gluth v. Arizona Dep't of Corrections, Civ. 84-1626 PHX. CAM. That order allegedly reveals a pattern of activity by the defendants denying inmates access to the courts. The district court excluded the evidence because it concerned incidents arising after the date Piatt's claim arose, and thus would not evince that the violation of his rights was part of a preexisting pattern of abuse. The court also excluded the evidence as unduly prejudicial, under Fed.R.Evid. 403.

The district court did not abuse its discretion. The court's Rule 403 concerns about prejudicing the defendants unduly, perhaps by confusing the jury as to the precise claims at issue, were not unreasonable or a "clear error of judgment." Abatti v. Commissioner, 859 F.2d 115, 117 (9th Cir.1988).

Piatt details various difficulties he encountered in presenting his case to the jury and argues that the district court should have been more responsive to his complaints. He requests that we issue an opinion advising district courts how to deal with such problems if and when they arise in the course of prisoner litigation. We decline the invitation.

First, Piatt concedes that the court's decision would not affect his case. Errors committed by the district court, if any, were harmless given the successful outcome of Piatt's suit. Any opinion would thus be purely advisory. Federal courts are constitutionally precluded from issuing advisory opinions. See, e.g., Lewis v. Continental Bank Corp., 494 U.S. 472, ----, 110 S.Ct. 1249, 1253 (1990).

Second, because he does not challenge particular rulings below, Piatt is raising this claim for the first time on appeal. We will not entertain an argument neither raised below nor ruled upon by the district court. Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985).

Kangas raises two distinct arguments in his cross-appeal--one concerning the district court's failure to grant summary judgment on Piatt's sixth amendment claim and one focusing on the denial of JNOV.

In his cross-appeal, Kangas argues that summary judgment should have been granted in his favor on the sixth amendment claim. Relying upon the Supreme Court's opinion in Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), Kangas argues that he was not subject to suit under section 1983. In Will, the Supreme Court held that a suit against state officials in their official capacity is in actuality a suit against the state rather than a "person," within the meaning of section 1983. Id. at 71.

We decline to reach the merits of Kangas's sixth amendment claim. Kangas did not raise this issue before the district court. We will not consider an issue raised for the first time on appeal. Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985). We recognize that Will was not decided until after the conclusion of this litigation. The general principle that suits may not proceed against state officials in their official capacity on eleventh amendment grounds, however, long predates the conclusion of this litigation in the district court. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-70 (1985) (citing cases). Kangas offers no explanation for his failure to raise the personal/official capacity issue before the district court. If his allegations are correct, the district court could have awarded the identical relief he seeks here much earlier.

Kangas argues secondly that the district court erred in denying his motion for JNOV because substantial evidence did not support the jury's verdict. Specifically, he asserts that Piatt introduced insufficient evidence to demonstrate that he was actually prejudiced in his access to the courts by Kangas's actions. See Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.1989) (unless plaintiff challenges adequacy of law library or sources of legal knowledge, she must show an actual injury in order to prevail). Kangas contends that Piatt argued, rather than evidenced, an actual injury.

Direct evidence of injury was introduced, however. Piatt testified that the lack of materials inhibited his ability to pursue state postconviction remedies and federal habeas corpus review of his conviction. He also testified as to how the loss of materials forced him voluntarily to dismiss his suit against the Veterans Administration seeking unpaid educational benefits. He stated that, without his papers, he was unable to prove that the Veterans Administration had deliberately delayed the processing of educational benefits. While Kangas may personally disbelieve this testimony, we defer to the jury's evaluation of Piatt's credibility on this matter. See The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 1151 (9th Cir.1988). Because substantial evidence supported a finding of actual prejudice, we affirm the district court's denial of JNOV.

We affirm the district court's grant of summary judgment on Piatt's first amendment, due process, and equal protection claims. We also affirm the district court's decisions to limit discovery, deny sanctions, and exclude evidence, as well as its efforts to protect Piatt's ability to litigate this case.

With respect to Kangas's cross-appeal, we affirm the denial of both summary judgment on the sixth amendment claim and the request for judgment notwithstanding the verdict.

AFFIRMED.