                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            DEC 16 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

CHRISTOPHER A. JONES,                            No. 15-16427

              Plaintiff-Appellee,                D.C. No.
                                                 3:10-cv-00162-LRH-VPC
 v.

HOWARD SKOLNIK,                                  MEMORANDUM*

              Defendant-Appellant,

 and

GREG COX and BRIAN WILLIAMS,

              Defendants.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                          Submitted December 14, 2016**
                             San Francisco, California




       *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,*** District Judge.

      Defendant Howard Skolnik appeals from the district court’s denial of his

motion to dismiss Plaintiff Christopher Jones’ 42 U.S.C. § 1983 claims against him

on the ground of qualified immunity. Plaintiff alleges that several prison officials

violated his procedural due process rights when they denied him a witness at a

disciplinary hearing in 2007. The stated reason for the denial of the witness was

that the witness was "not available," but Plaintiff claims that the witness was, in

fact, ready and willing to testify on his behalf.

      Plaintiff sought relief through the prison’s grievance system, but both his

first- and second-level grievances were denied. He then wrote a letter to

Defendant, who was the Director of the Nevada Department of Corrections, asking

him to intervene and correct the alleged due process violation. Defendant wrote

back to Plaintiff, declining to intervene and expressing his belief that Plaintiff had

been "answered appropriately" by the response to the second-level grievance.

      Plaintiff then sued Defendant and several other prison officials under 42

U.S.C. § 1983. Eventually, the district court denied Defendant’s motion to dismiss

on the basis of qualified immunity. Defendant appeals from that order.



      ***
        The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
                                            2
      1. We have jurisdiction over this appeal. Although the district court denied

Defendant’s motion to dismiss "without prejudice," it clearly ruled on the merits of

the qualified immunity defense. See Mitchell v. Forsyth, 472 U.S. 511, 528–30 &

528 n.9 (1985) (holding that the denial of qualified immunity is immediately

appealable to the extent it turns on the "purely legal question [of] whether the facts

alleged . . . support a claim of violation of clearly established law").

      2. Defendant is entitled to qualified immunity even if Plaintiff did not

receive due process unless "every reasonable official [in Defendant’s position]

would have understood that" Defendant’s conduct violated Plaintiff’s rights.

Demuth v. County of Los Angeles, 798 F.3d 837, 839 (9th Cir. 2015) (internal

quotation marks omitted). Accordingly, resolving the qualified immunity issue

does not require resolving the issue whether collateral estoppel bars Defendant

from arguing that Plaintiff received due process. We therefore lack jurisdiction to

decide the collateral estoppel issue. Chavez v. United States, 683 F.3d 1102, 1108

(9th Cir. 2012).

      3. Defendant is entitled to qualified immunity. When we address the issue

of qualified immunity at the pleading stage, we ask whether the complaint

"allege[s] facts sufficient to support [a] claim[] that [the defendant’s] conduct

violated [the plaintiff’s] clearly established constitutional rights." Pelletier v. Fed.


                                            3
Home Loan Bank of S.F., 968 F.2d 865, 871 (9th Cir. 1992). We review de novo

both the sufficiency of the complaint, Kwai Fun Wong v. United States, 373 F.3d

952, 961–62 (9th Cir. 2004), and the issue "whether governing law was clearly

established at the time of the alleged violation," Dunn v. Castro, 621 F.3d 1196,

1198 (9th Cir. 2010).

      Plaintiff’s complaint alleges that Defendant was "deliberately indifferent" to

a due process violation of which he had "actual knowledge." Even assuming the

letter from Plaintiff to Defendant gave Defendant notice of a claimed due process

violation, Defendant did not have a clearly established constitutional duty to

respond to that letter, as review of prisoner grievances was entrusted to the warden

and the assistant director of the Nevada Department of Corrections under the

established administrative process. Not "every reasonable official [in Defendant’s

position] would have understood that" a refusal to intervene in the administrative

process violated Plaintiff’s due process rights. Demuth, 798 F.3d at 839 (internal

quotation marks omitted).

      REVERSED.




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