                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            AUG 31 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ISAIAH NOEL WILLIAMS,                            No.    13-17284

              Plaintiff-Appellant,               D.C. No. 4:07-cv-04464-CW

 v.
                                                  MEMORANDUM*
DEBRA WILLIAMS,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                     Claudia Wilken, District Judge, Presiding

                      Argued and Submitted December 8, 2015
                             San Francisco, California

Before: O’SCANNLAIN, SILVERMAN, and BEA, Circuit Judges.

      Appellant Isaiah Williams is an inmate in state prison. He commenced this

42 U.S.C. § 1983 action against correctional officer Debra Williams. On appeal, he

argues that the district court erred in granting summary judgment in favor of the

defendant on his due process claim, and that the district court abused its discretion



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
by admitting evidence during trial regarding his alleged membership in a prison

gang and one of his tattoos.

                          I. Alleged Due Process Violation

      Appellant alleges a due process violation based on Wolff v. McDonnell, 418

U.S. 539 (1974). Wolff accorded prisoners certain limited due process rights in

prison disciplinary proceedings “to insure that [a] state-created right is not

arbitrarily abrogated.” Id. at 557. The Court applied the “minimum requirements of

procedural due process” because “the determination of whether [prisoner

misconduct] has occurred becomes critical” when a state deducts good time credits

as punishment. Id. at 558. Under Wolff, an “inmate facing disciplinary proceedings

should be allowed to call witnesses and present documentary evidence in his

defense” so long as it is safe to do so. Id. at 566. Appellant argues that Officer

Williams violated this constitutional right by preventing him from attending his

prison disciplinary hearing on September 3, 2006.

      The district court recognized that Appellant Williams had a right to attend

the disciplinary hearing. However, the court concluded that this right was not

clearly established in 2006. Thus, the court granted summary judgment on the due

process claim in favor of the defendant, based on qualified immunity.




                                           2
      The court erred when it concluded that the right was not clearly established

in 2006. The Supreme Court’s statement in 1974 that prisoners have a right to call

witnesses and present evidence at disciplinary hearings necessarily implies a right

to participate in the hearing process. Here, the district court concluded that the

right was not clearly established in 2006 based on Wheeler v. Sim, 951 F.2d 796

(7th Cir. 1992), and Francis v. Coughlin, 891 F.2d 43 (2d Cir. 1989). Neither of

these authorities undermines Wolff’s holding that prisoners have a right to present

evidence and call witnesses at disciplinary hearings when it is safe to do so. In

Wheeler, “the only due process question at issue [was] whether the Due Process

Clause itself entitles an inmate to present a written statement rather than an oral

statement . . . at a disciplinary hearing.” 951 F.2d at 799 (emphasis in original). In

Francis, the court addressed the issue of whether an inmate “had a right to be

present at the testimony of his witnesses.” 891 F.2d at 48 (emphasis in original).

Here, Appellant alleges that Officer Williams completely denied him the

opportunity to participate in the disciplinary hearing. If proven, this conduct would

be in clear violation of Wolff.

      Therefore, we reverse the court’s grant of summary judgment on the due

process claim and remand for further proceedings. We do so even though

Appellant has not yet shown if, or how, he was actually damaged by the alleged


                                           3
constitutional deprivation. See Carey v. Piphus, 435 U.S. 247, 266 (1978) (“[T]he

denial of procedural due process should be actionable for nominal damages

without proof of actual injury.”).

                                 II. Trial Evidence

      Appellant also argues that the district court erred when it admitted into

evidence the name of a white supremacist prison gang to which he allegedly

belongs, and when it admitted into evidence testimony regarding one of his tattoos.

      If a district court abuses its discretion by admitting evidence improperly, this

court must determine whether or not the error was harmless. United States v.

Ramirez-Robles, 386 F.3d 1234, 1244 (9th Cir. 2004). An error is harmless if it is

“more probable than not that the erroneous admission of the evidence did not affect

the jury’s verdict.” Id. (quoting United States v. Hill, 953 F.3d 452, 458 (9th Cir.

1991)). This court will not reverse a jury verdict absent a showing of prejudice.

Monotype Corp. PLC v. Int’l Typeface Corp., 43 F.3d 443, 448 (9th Cir. 1994)

(citing Larez v. City of L.A., 946 F.2d 630, 638 (9th Cir. 1991)).

      Assuming arguendo that the name of the gang and the testimony regarding

appellant’s tattoo were erroneously admitted, it is more probable than not that the

same jury verdict would have obtained. Absent the challenged evidence, the jury

still would have heard that Appellant was validated as a member of a prison gang,


                                           4
and that he picked a fight with a rival gang member. To the extent that the jury was

swayed by reference to the name of the gang and appellant’s tattoo, it would likely

still be swayed in the same manner by the evidence that Appellant belonged to an

apparently violent prison gang. Thus, we affirm the judgment in favor of the

defendant as to Appellant’s deliberate indifference, excessive force, and retaliation

claims.

      Each party shall bear its own costs.

   AFFIRMED in part; REVERSED in part; REMANDED.




                                          5
                                                                             FILED
Williams v. Williams, 13-17284
                                                                              AUG 31 2016
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


SILVERMAN, Circuit Judge, dissenting:



      I would affirm the district court in toto for the reasons stated in the original

Memorandum filed in this case on February 2, 2016.
