                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                               FILED
                            FOR THE NINTH CIRCUIT                                JUN 06 2012

                                                                            MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

MICHAEL SAAVEDRA,                                No. 09-17775

              Plaintiff - Appellant,             D.C. No. 3:08-cv-02180-CRB

  v.
                                                 MEMORANDUM*
L. E. SCRIBNER, Warden; D. TRAVERS;
ANTHONY HEDGPETH; P.
MANDEVILLE; J. CELAYA; J.
MCCALL; R. PARIN,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                        Argued and Submitted May 14, 2012
                             San Francisco, California


Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

       Plaintiff Michael Saavedra, an inmate at Salinas Valley State Prison, sued

various prison officials for alleged due process violations arising out of his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
placement and retention in administrative segregation and the disciplinary

proceedings that followed. The district court granted summary judgment to

Defendants. It held that the notice given to Saavedra for his placement in

administrative segregation was constitutionally deficient, but that Defendants were

entitled to qualified immunity. We affirm.

      We review “questions of our own jurisdiction de novo.” Hunt v. Imperial

Merchant Servs., Inc., 560 F.3d 1137, 1140 (9th Cir. 2009). We review a decision

to grant summary judgment on the basis of qualified immunity de novo. See

Bingham v. City of Manhattan Beach, 341 F.3d 939, 945 (9th Cir. 2003). The

doctrine of qualified immunity is a two-part test. “First, a court must decide

whether the facts that a plaintiff has . . . shown . . . make out a violation of a

constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). “Second . . .

the court must decide whether the right at issue was ‘clearly established’ at the

time of defendant’s alleged misconduct.” Id. For a right to be clearly established,

the unlawfulness of official action “must be apparent” “in the light of pre-existing

law.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks and

citation omitted).

      1.     Rooker-Feldman Doctrine. As a preliminary matter, Defendants

contend that the Rooker-Feldman doctrine bars jurisdiction over this case. The


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Rooker-Feldman doctrine bars federal court jurisdiction where a federal plaintiff is

“complaining of injuries caused by state-court judgments” and is “inviting district

court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 544 U.S. 280, 284 (2005). The Rooker-Feldman doctrine does not

bar this action on the basis of the state court’s denial of Saavedra’s habeas petition

because Saavedra complains of due process injuries caused by Defendants’

conduct, not injuries caused by a state court judgment.

      2.     Due Process Violations. For placement in administrative segregation,

an inmate must “receive some notice of the charges against him,” Hewitt v. Helms,

459 U.S. 460, 476 (1983) (emphasis added), or “notice of the factual basis leading

to consideration” for confinement, Wilkinson v. Austin, 545 U.S. 209, 225-26

(2005). The notice must be delivered “within a reasonable time following an

inmate’s transfer” in order to be effective in helping the inmate prepare a defense

at his hearing. See Hewitt, 459 U.S. at 476 n.8; Toussaint v. McCarthy, 801 F.2d

1080, 1100 & n.20 (9th Cir. 1986) (“Prison officials must hold an informal

nonadversary proceeding within a reasonable time after the prisoner is

segregated.”).

      The notice delivered to Saavedra on April 15, 2004, the day of his

segregation, stated that Saavedra was “deemed a threat to the safety and security of


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the institution, it’s [sic] staff, and inmates” based on “confidential information.”

Defendants knew that Saavedra was being investigated for overfamiliarity with

staff, yet failed to notify Saavedra of that fact. We agree with the district court’s

holding that this April 15 notice was constitutionally insufficient under Hewitt.

       Nearly two months after his segregation, at a hearing on June 10, Defendants

gave Saavedra a CDC 1030 form notifying him that his placement in

administrative segregation was because of a still-ongoing investigation into the

charge for overfamiliarity with staff. We hold that a two-month delay between

placement in administrative segregation and the June 10 notice of the charges was

unreasonable in violation of due process. See Hewitt, 459 U.S. at 476 n.8;

Toussaint, 801 F.2d at 1100 & n.20.

       Defendants’ contention that Saavedra lacks a protectable liberty interest was

not raised in the district court. Accordingly, they have waived this issue. See

Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010)

(finding waiver on appeal of question of protectable liberty interest where

defendants failed to raise it in the district court).

       3.     Qualified Immunity. We hold that qualified immunity protects

Defendants from liability for the due process violations described above. We also

hold that qualified immunity protects Defendants from liability for Saavedra’s


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other notice-based due process claims, but need not decide whether the facts

establish a violation of his constitutional rights. See Pearson, 555 U.S. at 236

(holding that a court may decide the question of qualified immunity without

deciding the underlying constitutional question).

      We begin with the question of qualified immunity for the constitutional

violation arising out of the deficient notice on April 15, and the failure to effect

timely and sufficient notice prior to the June 10 hearing. Because our cases do not

give adequate guidance both on the level of specificity required in a Hewitt notice

and on ensuring timely delivery of a Hewitt notice, there is qualified immunity for

the time period from April 15 to June 10.

      Assuming without deciding that the June 10 notice of the charges was

constitutionally deficient, we conclude that Defendants are entitled to qualified

immunity for the June 10 notice. From a reading of our cases and the Supreme

Court’s, it would not be apparent to a prison official in 2004 that a Hewitt notice

requires more than the notice provided.

      Defendants are also entitled to qualified immunity for any constitutional

violations arising out of the notice delivered to Saavedra for his subsequent

disciplinary proceedings that resulted in loss of good time. That notice disclosed

the charge and some factual basis for the charge. It would not be apparent to a


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prison official that he needed to disclose more than this information in a notice to

initiate disciplinary proceedings, especially where a portion of the evidence used to

support the disciplinary action was legitimately confidential. See Zimmerlee v.

Keeney, 831 F.2d 183, 188 (9th Cir. 1987) (“Wolff [v. McDonnell, 418 U.S. 539,

563-66 (1974)] provides little guidance as to the specificity of notice necessary to

satisfy due process.”); McCollum v. Miller, 695 F.2d 1044, 1048 (7th Cir. 1982)

(explaining that more notice is not necessary where disclosure of evidence may

impose significant costs on the prison’s investigation into, and prosecution of,

misconduct).

      4.     “Some Evidence” Justified Saavedra’s Placement in Segregation.

Assuming the “some evidence” standard applies to the initial placement in

administrative segregation, compare Toussaint, 801 F.2d at 1104 (requiring “some

evidence”), with Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) (not requiring

“some evidence”), the evidence Defendants used to place Saavedra in

administrative segregation satisfied the “some evidence” standard.

      AFFIRMED.




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