NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 24 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAFAEL MORA-CONTRERAS; SHANE No. 20-35476

STAGGS,

D.C. No. 6:18-cv-00678-SB Plaintiffs-Appellants,

v. MEMORANDUM*

COLETTE PETERS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Stacie F. Beckerman, Magistrate Judge, Presiding

Submitted June 10, 2021** Portland, Oregon

Before: WARDLAW, TALLMAN, and HURWITZ, Circuit Judges.

Rafael Mora-Contreras and Shane Staggs (Plaintiffs) appeal from the district

court’s judgment dismissing their 42 U.S.C. § 1983 claims against various Oregon

Department of Corrections employees. We have jurisdiction pursuant to 28 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 1291, and we affirm.

1. The district court properly dismissed Plaintiffs’ Fifth Amendment due

process claims. Transfer to a segregation unit implicates a protected liberty

interest only if the conditions in the unit “impose[] atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin

v. Conner, 515 U.S. 472, 484 (1995). This context- and fact-specific inquiry

requires comparing the conditions in the segregation unit to the conditions in

general population within the specific prison. See Keenan v. Hall, 83 F.3d 1083,

1089 (9th Cir. 1996). Here, the operative second amended complaint does not

allege any facts about the conditions in general population or that conditions in the

segregation units arise to an “atypical and significant hardship” relative to the

general population. See Resnick v. Hayes, 213 F.3d 443, 445 n.3, 448–49, (9th Cir.

2000) (finding no protected liberty interest where complaint did not allege that

conditions were worse in the SHU than in administrative segregation or general

population).

Plaintiffs also do not allege that they were denied the procedural protections

described in Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974). Plaintiffs do

allege facts that could support a fabrication of evidence claim under Devereaux v.

Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001), but without first establishing a

protected liberty interest, the fabrication of the evidence claim fails. See Costanich

2 v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1115 (9th Cir. 2010) (deliberately

fabricating evidence violates due process “during civil investigations which could

result in the deprivation of protected liberty or property interests” (emphasis

added)).

2. The district court properly dismissed Plaintiffs’ Eighth Amendment

claims. Plaintiffs assert that extended solitary confinement is inherently cruel and

unusual punishment under the Eighth Amendment. This argument is contrary to

the law of the Supreme Court and this circuit. See e.g., Hutto v. Finney, 437 U.S.

678, 686–88 (1978); Davis v. Ayala, 576 U.S. 257, 289–90 (2015) (Kennedy, J.,

concurring); Anderson v. Cnty. of Kern, 45 F.3d 1310, 1316 (9th Cir.), opinion

amended on denial of reh’g, 75 F.3d 448 (9th Cir. 1995).

3. The district court properly found that the defendants were entitled to

qualified immunity on Plaintiffs’ First Amendment compelled speech and

retaliation claims. Plaintiffs allege that their First Amendment rights not to be

compelled to inform or falsely testify were violated, and that they were unlawfully

retaliated against for exercising those rights. See Rhodes v. Robinson, 408 F.3d

559, 567–68 (9th Cir. 2005) (explaining the elements of a First Amendment

retaliation claim in the prison context). But those rights were not established in

any circuit at the time of the alleged incidents, and still are not established in our

circuit. See Burns v. Martuscello, 890 F.3d 77, 81, 93 (2d Cir. 2018) (establishing,

3 as a matter of first impression, that “the First Amendment protects both a

prisoner’s right not to serve as an informant, and to refuse to provide false

information to prison officials,” but noting that “neither the Supreme Court nor any

other circuit court” had previously found those rights exist).

AFFIRMED.

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