                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 29 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DEMONDZA HUNTER,                                 No. 06-56431

             Plaintiff - Appellant,              D.C. No. CV-01-02212-RTB

  v.
                                                 MEMORANDUM *
D. ESTEE, Correctional Officer; S.
CANDALOT, Assistant Appeals
Coordinator; S. H. GARCIA, Chief
Deputy Warden; G. GALAZA, Warden,
Corcoran State Prison; JANE DOE,
Appeals Coordinator, Calipatria State
Prison; JOHN DOE, I, Appeals
Coordinator, Corcoran State Prison; R. H.
HOUSTON, Chief Deputy Warden,
Calipatria State Prison; H. E. FAST; D.
EDWARDS; MIKE CORBIN, Appeals
Coordinator; BRAD STREETER Appeals
Coordinator; DARIO BRAVO, Appeals
Coordinator,

             Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Argued and Submitted January 14, 2010
                                Pasadena, California

Before: SCHROEDER, CANBY and McKEOWN, Circuit Judges.

      Demondza Hunter appeals the district court’s dismissal of his 42 U.S.C.

§ 1983 action. The district court found that Hunter did not have a constitutionally

protected liberty interest in avoiding confinement in the Segregated Housing Unit

(“SHU”) at Corcoran State Prison. The district court further found that even if

such a liberty interest existed, Hunter’s successful administrative appeal “cured”

this error. The district court dismissed Hunter’s other claims as well, and denied

Hunter’s request to file an untimely summary judgment brief. We reverse and

remand for further proceedings.

      We review a grant of summary judgment de novo. United States v. City of

Tacoma, 332 F.3d 574, 578 (9th Cir. 2003). We review a district court’s denial of

an extension of time for abuse of discretion. United States v. Nguyen, 262 F.3d

998, 1002 (9th Cir. 2001).

      The district court correctly noted that the prison’s failure to accommodate

Hunter’s allergy and disability do not, standing alone, give rise to a liberty interest.

Serrano v. Francis, 345 F.3d 1074, 1078-79 (9th Cir. 2003). The district court’s

determination that Hunter did not have a liberty interest in avoiding confinement in



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the SHU was based principally upon its interpretation of Wilkinson v. Austin, 545

U.S. 209 (2005). The district court observed that the inmates at Ohio State

Penitentiary (“OSP”) had a liberty interest in that case in avoiding conditions that

were more severe than those in “most solitary confinement facilities.” Id. at 224.

The district court distinguished Wilkinson from this case because placement in

OSP was indefinite, subject only to annual review, and OSP inmates were not

eligible for parole. See id.

      The district court apparently assumed that placement in the SHU was not

indefinite and was subject to more frequent review. Yet the fact that Hunter spent

over 200 days in the SHU after he was ordered released indicates that prison

procedures for reviewing placement were inadequate. Thus, Hunter’s placement in

the SHU was as a practical matter as indefinite as the placement in Wilkinson. See

id.

      The district court also distinguished Wilkinson on the ground that in

Wilkinson OSP inmates were disqualified from parole consideration. The record is

unclear, however, as to whether prison officials restored Hunter’s good time

credits, and whether the six months he spent in the SHU after he was ordered

released increased the overall length of his incarceration.




                                           3
      In finding that Hunter’s successful administrative appeals “cured” any due

process errors he may have suffered, the district court relies on what was for

Hunter a Pyrrhic victory. Hunter served six months in the SHU after his successful

administrative appeal, and thus his successful appeal did not remedy anything.

      On remand the district court should re-evaluate whether the prison’s failure

to ensure proper placement of Hunter “impose[d an] atypical and significant

hardship on [Hunter] in relation to the ordinary incidents of prison life.” Sandin v.

Conner, 515 U.S. 472, 484 (1995). The district court should also determine to

what extent, if any, Hunter’s stay in the SHU affected the length of his sentence.

Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003).

      The district court erred dismissing Hunter’s retaliation claim. The State did

not move for summary judgment on this issue, and concedes the district court erred

with respect to it. The State also agrees that because of the Federal retaliation

claim the district court should not have dismissed Hunter’s state law claim for lack

of jurisdiction. See 28 U.S.C. § 1367.

      In light of our holding, we need not address whether the district court erred

in denying Hunter, a pro se prisoner before the district court, an extension to file

supplemental pleadings. We assume that further proceedings and a new briefing

schedule on remand will cure any alleged error.


                                           4
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.




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