The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff is a former state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the original complaint.*fn1 On April 10, 2007, the district judge adopted findings and recommendations that granted defendants' motion for summary judgment. Doc. 41. On July 7, 2009, the United States Court of Appeals for the Ninth Circuit affirmed the judgment as to all defendants except Karla Erkenbrecher, plaintiff's former parole agent, and remanded to the district court. Doc. 48. At the pretrial hearing on May 19, 2011, both parties consented to the undersigned's jurisdiction for all further proceedings, including trial and entry of final judgment. Doc. 92. The remaining issue is plaintiff's claim that defendant Erkenbrecher violated his federal right to due process by failing to notify plaintiff of the Board of Prison Terms' (now the Board of Parole Hearings, hereinafter "BPH") decisions to retain him on parole on February 1, 2002 and February 3, 2003, respectively, so plaintiff could file an administrative appeal.
On June 1, 2011, the court ordered plaintiff to file a motion for summary judgment and defendant to oppose and file a cross motion for summary regarding whether, as a matter of law, defendant's alleged failure to notify plaintiff of his retention on parole violated his federal due process rights; and if so, whether he is entitled to more than nominal damages for this violation. The briefing was to specifically address:
1. Whether plaintiff had a federally protected liberty interest in the right to administratively appeal from an adverse discharge/retention decision.
2. If plaintiff had a federally protected liberty interest in the right to appeal, what process was due?
3. Assuming that plaintiff had a federally protected liberty interest in the right to appeal, and that due process included timely notice of decision, whether plaintiff must show that the BPH would have reversed its decision on appeal, in order to be entitled to more than nominal damages. See Carey v. Piphus, 42 U.S. 247, 263, 98 S.Ct. 1042, 1052 (1978) ("[T]he injury caused by a justified deprivation, including distress, is not properly compensable under § 1983." Thus, plaintiff must "convince the trier of fact that he actually suffered distress because of the denial of procedural due process itself."); County of Monroe, Florida v. U.S. Dept. of Labor, 690 F.2d 1359, 1363 (11th Cir. 1982) (same); but see Patterson v. Coughlin, 905 F.2d 564, 568-570 (7th Cir. 1990) (where a denial of due process has been followed by a liberty deprivation, burden shifts to the state to prove that plaintiff would have suffered deprivation even if due process rights had been respected).
4. Assuming plaintiff is entitled to more than nominal damages for due process violation, what damages is he entitled to for:
a. the period between defendant's alleged failure to notify and April 23, 2003, when plaintiff was arrested for alleged credit card fraud; and
b. all events subsequent to plaintiff's arrest on April 23, 2003; including
c. plaintiff's alleged inadequate medical care in prison.*fn2
The parties have timely filed their motions and a hearing was held before the court on August 25, 2011. Plaintiff appeared pro se and Monica Anderson appeared for defendant. For the reasons that follow, defendant's cross motion for summary judgment is granted and this case is closed.
II. Motion for Summary Judgment
Legal Standard for Summary Judgment Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," ...