The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. 77)
I have received, read, and considered Defendants' motion for summary judgment (dkt. 77), Plaintiff Raashad Carter's opposition (dkt. 80), Defendants' reply (dkt. 81), and the related papers. For the reasons explained below, Defendants' motion for summary judgment is granted.
In the operative Second Amended Complaint (dkt. 49) (SAC), Carter alleges that defendants L. Cannedy, S. Rivas, D. Lieber, R. Mandeville, and M. Reyes are liable under 42 U.S.C. § 1983 for violating Carter's right to due process in connection with a prison disciplinary hearing.
According to the SAC, on November 21, 2007, Carter was placed into administrative segregation for suspicion of battery on an inmate. SAC ¶ 10. Carter alleges that Rivas failed to uphold his responsibility to give Carter non-confidential photographic evidence that was to be used against him. SAC ¶¶ 12--13, 42. Carter alleges that Cannedy, who was the hearing officer for Carter's January 9, 2008 disciplinary hearing, refused to continue the hearing to give Carter the opportunity to receive all non-confidential evidence and inappropriately relied on three confidential reports by not individually addressing the reliability of the information in each confidential report, which resulted in Carter being found guilty. SAC ¶¶ 14, 16, 40--41. Carter alleges that Lieber and Mandeville reviewed the adjudication report on January 25, 2008 and failed to act on the alleged due process violations. SAC ¶¶ 17--18, 43--44. Carter alleges that on February 6, 2008, he complained to Reyes about the claimed due process violations but that Reyes failed to review the adjudication report properly and act on the due process violations. SAC ¶ 20, 45--46. Carter filed an inmate appeal on February 6, 2008. SAC ¶ 21.
Carter was in administrative segregation until March 19, 2008, when he was transferred to Corcoran Security Housing Unit. SAC ¶ 22, 27. On March 27, 2008, Carter's appeal was granted, his guilty disposition was vacated, and a new hearing was ordered. SAC ¶ 28. On August 22, 2008, Carter was found not guilty of battery on an inmate at the second hearing because the second hearing officer determined the confidential information to be non-reliable. SAC ¶ 36. On January 6, 2009, Carter was transferred back to the general population. SAC ¶ 38.
Defendants contend that summary judgment should be granted because (1) Carter's placement in administrative segregation and Security Housing did not subject him to an atypical and significant hardship; (2) even if Carter was subjected to an atypical and significant hardship, Carter received all the process that he was due under the United States Constitution; and (3) even if there was a due process violation, Defendants are entitled to qualified immunity. I agree with Defendants that Carter has failed to present sufficient evidence to sustain his claimed due process violation, so I need not reach the question of qualified immunity.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). If the moving party meets its initial responsibility to inform the district court of the basis for its motion and identifying the portions of the record which demonstrate the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), the burden shifts to the opposing party to come forward with specific facts showing that a genuine issue of material fact exists, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586--87 (1986). I conclude that all Defendants have met their initial responsibility to show the absence of a genuine dispute as to a material fact, and that Carter has failed to come forward with specific facts showing that a genuine issue of material fact exists.
Under the Due Process Clause of the Fourteenth Amendment, a prisoner is entitled to due process if the state "imposes some 'atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). I look to three guideposts to frame the inquiry into whether conditions are "atypical and significant": (1) whether the conditions mirror those imposed upon inmates in administrative segregation, and thus comport with the prison's discretionary authority; (2) the duration of the conditions; and (3) whether the duration of the prisoner's sentence was affected. Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003). "Typically, administrative segregation in and of itself does not implicate a protected liberty interest." Id.
Defendants argue that Carter's placement in administrative segregation and later Security Housing did not impose an atypical and significant hardship. In support, they cite portions of Carter's complaint, a declaration from R. Taylor stating that the prison cells in administrative segregation were at least as big as Carter's prior cell, and Cal. Admin Code. tit. 15, § 3343, which provides that in segregated housing, meals should be the same as in the general population; mail is not restricted, except that incoming packages may be limited in number and in content to property permitted in segregated housing; inmates are allowed non-contact visits; inmates are permitted a minimum of three days per week of exercise for ten hours; library services are provided; and inmates will have access to education services if they can be reasonably provided without endangering security or safety. This is sufficient to meet Defendants' initial responsibility to show the absence of a genuine issue of material fact.
In response, Carter fails to carry his burden to show that a genuine issue of material fact exists as to whether his placement in administrative segregation and Security Housing imposed an atypical and significant hardship. Carter's declaration and documents he submits in opposition to summary judgment do not bear on the conditions of his confinement. Instead, Carter rests on the allegations in his complaint. But an allegation in a complaint, unsupported by an affidavit or other materials in the record such as depositions, documents, admissions, or interrogatory answers, cannot withstand a motion for summary judgment. Maraziti v. First Interstate Bank of Cal., 953 F.2d 520, 524 (9th Cir. 1992); Fed. R. Civ. P. 56(c).
Even if I were to treat Carter's opposition brief as a declaration, there would not be sufficient factual material to raise a genuine issue of fact as to whether his transfer to administrative segregation and Security Housing constituted an atypical and significant hardship. Carter alleges that in administrative segregation or Security Housing (1) he was forced to wear a t-shirt and boxers; (2) he was denied contact visits with family; (3) he was not able to exercise with the general population; (4) the cell was smaller by an unspecified amount; (5) the cell toilet faced the bottom bunk; (6) there were only two windows, one of which was covered in dirt; and (7) the view from the cell was a wall outside instead of the dayroom. There is no evidence that these conditions differ from typical administrative segregation conditions, and Carter's sentence to prison was not affected. Thus, even though the conditions were imposed over a substantial period of time, the conditions were not an "atypical and significant hardship." See Sandin, 515 U.S. 472 at 486 (no atypical and significant hardship where conditions in disciplinary segregation "mirrored those ...