               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39048

LERAJJAREANRA-O-KEL-LY,                           )     2013 Unpublished Opinion No. 311
                                                  )
       Plaintiff-Appellant,                       )     Filed: January 7, 2013
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
KIMBERLY JONES, EDWARD ALDRIN,                    )     THIS IS AN UNPUBLISHED
FRANK WELCH, HOPE STERLING, and                   )     OPINION AND SHALL NOT
SHIRLEY ROANE,                                    )     BE CITED AS AUTHORITY
                                                  )
       Defendants-Respondents.


       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Richard D. Greenwood, District Judge.

       Judgment summarily dismissing civil rights complaint, affirmed.

       Lerajjareanra-O-Kel-Ly, Idaho Falls, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; William M. Loomis, Deputy
       Attorney General, Boise, for respondents.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Lerajjareanra-O-Kel-Ly appeals from the district court’s judgment summarily dismissing
his civil rights complaint. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       In April 2008, in Clearwater County, Lerajjareanra-O-Kel-Ly filed an extremely lengthy
civil rights complaint against numerous correctional officials (Defendants), alleging various
violations due to disciplinary and classification actions taken against him during his
incarceration. The situations at issue stemmed largely from Lerajjareanra-O-Kel-Ly’s repeated
sexual contact with other inmates and mistreatment of prison staff. Lerajjareanra-O-Kel-Ly was
ordered to file a condensed ten-page complaint, which he did. Venue was transferred to Ada
County where Lerajjareanra-O-Kel-Ly filed a lengthy amended complaint.            He was again
ordered to file a shortened version. He complied. In January 2010, Defendants filed a motion to

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dismiss most of the claims and parties pursuant to Idaho Rule of Civil Procedure 12(b)(6). The
district court granted the majority of the Defendants’ motion. As to the remaining causes of
action and defendants, the Court held:
       [T]he plaintiff has alleged sufficient facts to proceed against [certain]
       defendants . . . for violation of his constitutional rights at his administrative
       hearing. Likewise, the plaintiff may be able to prove constitutional deprivation
       during his various DOR hearings against [certain] Defendants . . . . There are also
       sufficient facts alleged to support a cause of action for use of excessive force
       against [certain] defendants . . . .
       The parties filed cross motions for summary judgment, which the district court granted in
favor of the Defendants. Lerajjareanra-O-Kel-Ly now appeals the district court’s judgment
summarily dismissing his civil rights complaint.
                                                II.
                                           ANALYSIS
       Although it is clear from Lerajjareanra-O-Kel-Ly’s appellate brief that he challenges the
district court’s memorandum decision granting the Defendants’ motion for summary judgment,
his actual arguments as to how the district court abused its discretion in granting the Defendants’
motion are difficult to discern. He does, however, mention facts and authority relating to two of
the three claims the district court addressed in its memorandum decision: that his procedural due
process rights were violated over the course of various disciplinary proceedings, and that his
procedural due process rights were violated when he was placed in long-term administrative
segregation. We will address each in turn. 1
       We first note that summary judgment under Idaho Rule of Civil Procedure 56(c) is proper
only when there is no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. On appeal, we exercise free review in determining whether a genuine issue of
material fact exists and whether the moving party is entitled to judgment as a matter of law.
Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986). When
assessing a motion for summary judgment, all controverted facts are to be liberally construed in
favor of the nonmoving party. Furthermore, the trial court must draw all reasonable inferences
in favor of the party resisting the motion. G & M Farms v. Funk Irrigation Co., 119 Idaho 514,

1
       To the extent Lerajjareanra-O-Kel-Ly raises any issues on appeal for the first time, we do
not consider them. Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991).


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517, 808 P.2d 851, 854 (1991); Sanders v. Kuna Joint Sch. Dist., 125 Idaho 872, 874, 876 P.2d
154, 156 (Ct. App. 1994).
       The party moving for summary judgment initially carries the burden to establish there is
no genuine issue of material fact and that he or she is entitled to judgment as a matter of law.
Eliopulos v. Knox, 123 Idaho 400, 404, 848 P.2d 984, 988 (Ct. App. 1992). The burden may be
met by establishing the absence of evidence on an element the nonmoving party will be required
to prove at trial. Dunnick v. Elder, 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App. 1994).
Such an absence of evidence may be established either by an affirmative showing with the
moving party’s own evidence or by a review of all the nonmoving party’s evidence and the
contention that such proof of an element is lacking. Heath v. Honker’s Mini-Mart, Inc., 134
Idaho 711, 712, 8 P.3d 1254, 1255 (Ct. App. 2000). Once such an absence of evidence is
established, the burden shifts to the party opposing the motion to show, via further depositions,
discovery responses or affidavits, that there is indeed a genuine issue for trial or to offer a valid
justification for the failure to do so under Idaho Rule of Civil Procedure 56(f). Sanders, 125
Idaho at 874, 876 P.2d at 156.
       The United States Supreme Court, in interpreting Federal Rule of Civil Procedure 56(c),
which is identical in all relevant aspects to Idaho Rule of Civil Procedure 56(c), has stated:
       In our view, the plain language of Rule 56(c) mandates the entry of summary
       judgment, after adequate time for discovery and upon motion, against a party who
       fails to make a showing sufficient to establish the existence of an element
       essential to that party’s case, and on which that party will bear the burden of proof
       at trial. In such a situation, there can be “no genuine issue as to any material
       fact,” since a complete failure of proof concerning an essential element of the
       nonmoving party’s case necessarily renders all other facts immaterial. The
       moving party is “entitled to judgment as a matter of law” because the nonmoving
       party has failed to make a sufficient showing on an essential element of her case
       with respect to which she has the burden of proof . . . .

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citations omitted). The language and
reasoning of Celotex have been adopted in Idaho. Dunnick, 126 Idaho at 312, 882 P.2d at 479.
       In granting the Defendants’ motion for summary judgment, the district court noted the
facts relied upon were gleaned from the affidavits of the parties and, although the parties agreed
as to many of the facts, to the extent there was disagreement, the court viewed the facts in the
light most favorable to the party opposing the motion. It then addressed the remaining claims.



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A.     Disciplinary Hearings
       According to the district court, Lerajjareanra-O-Kel-Ly asserted his procedural due
process rights were violated over the course of four separate disciplinary hearings 2 and
summarized the claimed violations thusly:
       a) that Plaintiff was not provided with legal representation in the hearings;
       b) that there was ex parte contact at one hearing; i.e., the hearing officer discussed
       the facts of the case with a witness outside Plaintiff’s presence;
       c) that the hearing officer was biased and refused to recuse herself; and
       d) that witness statements were not produced for Plaintiff’s use at the hearing
       such that Plaintiff was not allowed to present his case.
       To determine whether an individual’s due process rights under the Fourteenth
Amendment have been violated, a court must engage in a two-step analysis. Schevers v. State,
129 Idaho 573, 575, 930 P.2d 603, 605 (1996); Briggs v. Kempf, 146 Idaho 172, 175, 191 P.3d
250, 253 (Ct. App. 2008). It must first decide whether the individual’s threatened interest is a
liberty or property interest under the Fourteenth Amendment. Schevers, 129 Idaho at 575, 930
P.2d at 605; Smith v. Meridian Joint Sch. Dist. No. 2, 128 Idaho 714, 722, 918 P.2d 583, 591
(1996); Briggs, 146 Idaho at 175, 191 P.3d at 253. Only if it finds a liberty or property interest
will the court reach the next step, in which it determines the extent of due process procedural
protections. Schevers, 129 Idaho at 575, 930 P.2d at 605; Briggs, 146 Idaho at 175, 191 P.3d at
253. Put another way, if a court concludes an individual lacked a protected liberty interest, this
leads to the conclusion the individual was not entitled to procedural due process under either the
Fourteenth Amendment to the United States Constitution, or Article 1, Section 13 of the Idaho
Constitution. See Schevers, 129 Idaho at 577-78, 930 P.2d at 607-08; Briggs, 146 Idaho at 176,
191 P.3d at 254.
       Thus, we must examine whether a protected liberty interest was implicated by these
disciplinary hearings.    Specifically, we examine the punishment Lerajjareanra-O-Kel-Ly
received as a result of the hearings, which, the district court found, ranged from five to thirty




2
      The district court identified these disciplinary hearings as numbers 060060, 060113,
060139, and 060168.


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days in disciplinary segregation. 3 To determine whether an inmate has a protected liberty
interest, the Idaho Supreme Court adopted the reasoning of the United States Supreme Court
from Sandin v. Conner, 515 U.S. 472 (1995). Schevers, 129 Idaho at 575-77, 930 P.2d at
605-07. Shifting from a focus on regulations to a focus on hardship, the court looks to whether
the restriction imposed an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin, 515 U.S. at 483-84. In other words, the court looks at
whether the restrictions constitute a dramatic departure from the basic conditions of prison life.
Id. at 485-86.
       In Schevers, 129 Idaho at 576, 930 P.2d at 606, the Court identified two factors to
consider in determining whether the punishment is atypical and a significant hardship: the
likelihood it will affect the prisoner’s sentence, and the duration of the segregation. In that case,
Schevers was moved from a minimum security general population placement to disciplinary
segregation. He was thereafter reclassified as medium security. His placement in disciplinary
segregation resulted in the denial of certain minimum security privileges and the loss of access to
personal property. Although he was placed in disciplinary segregation for fifty-five days, the
Court concluded this hardship was not a serious departure from what one would normally expect
from prison life. Id. at 577, 930 P.2d at 607. The Court’s declaration that Schevers lacked a
protected liberty interest led to the conclusion he was not entitled to procedural due process
under either the Fourteenth Amendment to the United States Constitution, or Article 1,
Section 13 of the Idaho Constitution. Schevers, 129 Idaho at 577-78, 930 P.2d at 607-08. See
also Sandin, 515 U.S. at 486 (holding that thirty days of disciplinary segregation was not an
atypical or significant hardship).
       Upon examination of the foregoing authority, the district court in this case concluded
none of the four disciplinary hearings Lerajjareanra-O-Kel-Ly complains about resulted in
“atypical or significant hardship,” as all four disciplinary segregation periods were well within
the boundaries of Sandin and Schevers. 4 Then, having determined Lerajjareanra-O-Kel-Ly did


3
        The Defendants point out that the practical result of the sanctions imposed following at
least two of the hearings was that Lerajjareanra-O-Kel-Ly did not spend any additional time in
disciplinary segregation after the disciplinary hearings were held.
4
       We also note there is no indication these punishments extended Lerajjareanra-O-Kel-Ly’s
sentence.

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not have a protected liberty interest at stake, the court indicated it need not continue the
procedural due process analysis, instead granting the Defendants’ motion for summary judgment
on those claims. The district court applied the correct standards of law and came to a soundly
reasoned decision. Therefore, the district court did not err in granting the Defendants’ motion
for summary judgment as to this claim. 5
B.     Administrative Segregation
       The district court also granted the Defendants’ motion for summary judgment as to
Lerajjareanra-O-Kel-Ly’s claim that his procedural due process rights were violated when he
was placed in long-term administrative segregation, due largely to his sexual contact with fellow
inmates and behavior towards prison staff.            Even assuming, without deciding, that
Lerajjareanra-O-Kel-Ly’s long-term placement in administrative segregation implicates a liberty
interest, i.e., it amounts to an “atypical and significant hardship,” Lerajjareanra-O-Kel-Ly has not
shown the district court erred in granting the Defendants’ motion for summary judgment. Idaho
courts have not yet confronted the issue of what procedural due process applies when an
inmate’s placement in administrative segregation implicates a liberty interest. However, the
United States Supreme Court addressed the issue in Hewitt v. Helms, 459 U.S. 460 (1983),
overruled in part on other grounds by Sandin, 515 U.S. 472. 6 There, the Supreme Court
considered whether prison inmates were entitled to due process before being placed in solitary
confinement for administrative--rather than disciplinary--reasons. The Court expressly rejected

5
        To the extent Lerajjareanra-O-Kel-Ly argues he should not have been punished for sexual
contact with other inmates because it was consensual, his argument does not have merit. During
the period of confinement in prison, the right of intimate association, “‘a fundamental element of
personal liberty,’” is necessarily abridged. Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir.
2002) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984)). In addition, prisons
have a legitimate penological interest in preventing sexual contact between inmates. See Veney
v. Wyche, 293 F.3d 726, 733-34 (4th Cir. 2002).
6
        Although it is clear Hewitt was overruled by Sandin in regard to the initial inquiry as to
whether an inmate has a liberty interest at stake (with the focus now on the nature of the
deprivation rather than the regulation at issue), Sandin did not speak to the process due where a
protected liberty interest is found. In this regard, we agree with the Second Circuit, which held
the procedural due process protections of Hewitt survived Sandin in cases where a liberty interest
is found pursuant to Sandin’s new strictures. See Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir.
1999) (“[I]f Sandin had meant to overrule Hewitt to the extent of precluding a protected liberty
interest for all administrative confinements, we would expect to see more pointed language to
that effect.”).

                                                 6
the idea that due process required a “detailed adversary proceeding” on the ground that it would
not materially assist the decision to be made. Id. at 473-74. The Court further held that, in these
situations, an “informal, nonadversary evidentiary review,” at which the prisoner has the
opportunity to state his views, satisfies the requirements of due process:
       An inmate must merely receive some notice of the charges against him and an
       opportunity to present his views to the prison official charged with deciding
       whether to transfer him to administrative segregation. Ordinarily a written
       statement by the inmate will accomplish this purpose, although prison
       administrators may find it more useful to permit oral presentations in cases where
       they believe a written statement would be ineffective. So long as this occurs, and
       the decisionmaker reviews the charges and then-available evidence against the
       prisoner, the Due Process Clause is satisfied.

Id. at 476.   The Court also noted that extended confinement in administrative segregation
requires a periodic review of the prisoner’s status to determine if the reasons for placement in
segregation continue to exist. Id. at 477 n.9. Accord Toussaint v. McCarthy, 801 F.2d 1080,
1101 (9th Cir. 1986), overruled in part on other grounds by Mennick v. Smith, 459 F. App’x 649
(9th Cir. 2011) (holding that for placement in administrative segregation, due process requires a
nonadversarial hearing be held within a reasonable time, the prisoner be informed of the charges
or reasons segregation is being considered and the prisoner be allowed to present his views, but
does not require written notice of charges, representation by counsel or counsel-substitute, the
opportunity to present witnesses, or a written decision describing the reasons for placing a
prisoner in administrative segregation).
       The inmate in Hewitt received notice of the charges against him the day after his
misconduct took place. Only five days after his transfer to administrative segregation, a hearing
committee reviewed the existing evidence against him. Moreover, the inmate acknowledged on
his misconduct form that he “had the opportunity to have [his] version reported as part of the
record” and, thus, had an opportunity to present a statement to the committee. Hewitt, 459 U.S.
at 477. The Supreme Court held this proceeding plainly satisfied the due process requirements
for confinement of the inmate in administrative custody. Id.
       Based on the above analysis, to address Lerajjareanra-O-Kel-Ly’s claim, an inquiry into
the circumstances surrounding his placement in administrative segregation is necessary.
However, evidence regarding those circumstances is not properly contained in the record. The
relevant facts appear only in the affidavit of Kevin Burnett, a paralegal at the Idaho Department

                                                 7
of Correction, and the exhibits attached thereto. Although apparently submitted to the district
court in support of the Defendants’ motion for summary judgment, the affidavit is not contained
in the record on appeal. Rather, the Defendants attached the affidavit and its attached exhibits to
their appellate brief, indicating that although the affidavit was listed in the register of actions, it
was “inadvertently omitted from the Clerk’s record.” It is well settled that this Court is bound by
the record and cannot consider matters or materials that are not part of the record or not
contained in the record. Chisholm v. Idaho Dep’t of Water Res., 142 Idaho 159, 162-63, 125
P.3d 515, 518-19 (2005). In addition, it is the responsibility of the appellant to provide a
sufficient record to substantiate his or her claims on appeal. Powell v. Sellers, 130 Idaho 122,
127, 937 P.2d 434, 439 (Ct. App. 1997). In the absence of an adequate record on appeal to
support the appellant’s claims, we will not presume error. Id. Thus, we will not presume the
district court erred in granting the Defendants’ motion for summary judgment where
Lerajjareanra-O-Kel-Ly has not provided a sufficient record for us to assess the claim.
       Even if we were to consider the affidavit and its attached exhibits and reach the merits of
Lerajjareanra-O-Kel-Ly’s claim, we would conclude the district court did not err in granting the
Defendants’ motion.      Lerajjareanra-O-Kel-Ly was referred for placement in administrative
segregation on May 10, 2006. The form indicated the reasons for the referral: “To protect you
from other offenders”; “To protect other offenders from you”; and “To stabilize a volatile or
difficult situation.”    The referral provided forty-eight hours’ notice of the hearing.
Lerajjareanra-O-Kel-Ly waived the forty-eight hour preparation time for the hearing and a
“Restrictive Housing Placement” hearing was held on May 11 before the Housing Placement
Committee (Committee).        The Committee considered Lerajjareanra-O-Kel-Ly’s disciplinary
record, prison records from his past incarceration, attitude towards authority, willingness and
ability to live with other offenders, classification (close custody at the time), and documented
current and past behavior. In its summary of the evidence, the Committee also noted that
Lerajjareanra-O-Kel-Ly had expressed “intimate feelings” for another inmate and had prior
sexual predator “points,” which created a possible security risk and a Prison Rape Elimination
Act (PREA) threat. Lerajjareanra-O-Kel-Ly indicated to the Committee he would be in danger if
moved to the Idaho Maximum Security Institution (IMSI) and contended the previous PREA
designation was unfounded.         The Committee unanimously recommended Lerajjareanra-
O-Kel-Ly be placed in administrative segregation and forwarded their recommendation to


                                                  8
Warden Kimberly Jones, who authorized the placement on May 12. Over the next five years,
Lerajjareanra-O-Kel-Ly continued to be housed at IMSI in administrative segregation. He had
periodic reviews by the Committee, some of which recommended continued placement in
administrative segregation that were approved by the warden, and others recommending release
from administrative segregation that were rejected by the warden.
       From these facts, we would conclude Lerajjareanra-O-Kel-Ly clearly received the
process due him both prior to and during his prolonged placement in administrative segregation.
As required by Hewitt, Lerajjareanra-O-Kel-Ly was given notice of the placement hearing and
the reasons segregation was being considered and a committee considered evidence and
Lerajjareanra-O-Kel-Ly’s statement at a nonadversarial hearing held the day after he was given
notice. In addition, although Lerajjareanra-O-Kel-Ly remained in administrative segregation for
an extended period, periodic reviews of his status were held. There is, therefore, no question
that, on its face, the procedure provided to Lerajjareanra-O-Kel-Ly was constitutionally
adequate.   The district court did not err in granting the Defendants’ motion for summary
judgment on this issue.
                                               III.
                                        CONCLUSION
       Lerajjareanra-O-Kel-Ly did not have a protected liberty interest at stake in any of the four
disciplinary hearings at issue because his punishments did not amount to “atypical or significant
hardship” such that his procedural due process rights were implicated. Also, even assuming
Lerajjareanra-O-Kel-Ly has a liberty interest in regard to his extended placement in
administrative segregation, and that we may reach the issue given the deficient record on appeal,
he was afforded constitutionally adequate procedural due process. Accordingly, the district court
did not err in granting the Defendants’ motion for summary judgment. The district court’s
judgment summarily dismissing Lerajjareanra-O-Kel-Ly’s civil rights complaint is affirmed.
        Judge GRATTON and Judge MELANSON CONCUR.




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