ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff, a state prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff challenges his validation as an associate of a prison gang and his resulting confinement in a Security Housing Unit ("SHU").

Presently before the court is defendants' motion to dismiss. Plaintiff filed an opposition, and defendants filed a reply. On January 15, 2015, a hearing on the motion to dismiss was held, at which plaintiff was represented by Paul H. Masuhara and defendants by Deputy Attorney General Jaime M. Ganson. Having fully considered the matter and based upon concessions at that hearing, the court orders that the motion be granted in part and denied in part, for the reasons set forth below.

I. Background

A. Factual Allegations

This action proceeds on plaintiff's second amended complaint, filed July 28, 2014. ("SAC," ECF No. 69.) Currently named as defendants are James Walker, formerly Warden of California State Prison-Sacramento ("CSP-Sac"), T. Ventimiglia, J. Stewart, G. Parker, R. Ramos, K.M. Pool, R. Parilla, Everett W. Fisher, Scott S. Kisser, and G. Williams, all of whom are sued in their individual capacities, and CDCR Secretary Jeffrey Beard, who is sued in his official capacity. In the SAC, plaintiff alleges as follows

On November 16, 2001, plaintiff entered CDCR custody at North Kern State Prison. He was transferred there from Los Angeles County Jail. (Id. at 3.)

On February 11, 2002, plaintiff was transferred to California Correctional Institution, in Tehachapi, California ("CCI"). He alleges that the prison was on lockdown when he arrived, due to an incident that occurred before his arrival. As a result, March 4, 2002 was the first day after his arrival that prisoners were allowed to go out onto the yard. (Id. at 4.)

That day, plaintiff alleges that he was "caught in the middle of a prison brawl that resulted in the stabbing of prisoner Randy Rangel." (Id.) Six prisoners, including plaintiff and the victim, were involved in the incident. According to written reports, plaintiff sustained injuries to his left shoulder, back, and left knuckle in this incident, but an investigator later reported being unable to find any injuries on plaintiff's knuckle or hands, and according to plaintiff, stated that "it appears [plaintiff] may have been incorrectly categorized as an assailant, when it seems that he may have been a victim." (Id.)

Defendant Parilla, an Institutional Gang Investigator ("IGI") at CCI, also questioned plaintiff. Plaintiff alleges that he maintained his innocence throughout this questioning, and was unable to identify the individual(s) responsible for the stabbing. According to plaintiff, defendant Parilla "took this as a lack of cooperation on [plaintiff's] part, and as a result held [plaintiff] to be responsible for the stabbing." (Id. at 5.) Plaintiff alleges that defendant Parilla assigned him to CCI's SHU in retaliation. (Id.)

Plaintiff describes the following as having occurred during his time in CCI's SHU:

(Id. at 5.) After two-and-a-half years, plaintiff was released into CCI's general population. He was later sent back to the SHU due to an unrelated fistfight. On March 8, 2006, plaintiff was transferred from CCI to CSP-Sac's general population. (Id.)

Plaintiff next alleges that, on July 2, 2008, he was served with a gang validation packet by defendant Ventimiglia, a Lieutenant in CSP-SAC's Institutional Gang Investigation Unit. The packet identified plaintiff as an associate1 of the Mexican Mafia prison gang known as "EME" based on six documents. Plaintiff was placed in Administrative Segregation ("Ad Seg") pending the outcome of the validation process. (Id. at 6.)

The six documents were as follows: (1) a confidential memorandum prepared by defendant Parilla, dated July 17, 2002, stating that a confidential informant had identified plaintiff as committing battery on Rangel at CCI on behalf of a validated EME member; (2) a confidential memorandum prepared by defendant Parilla, dated February 26, 2003, stating that a confidential informant had identified plaintiff as conducting "Roll Call" of EME prisoners at CCI; (3) a CDCR 128-B prepared by defendant Parilla, dated July 11, 2005, identifying plaintiff as possessing a contact address for prisoner Jesse Enriquez, a validated EME gang associate; and (4)-(6) three confidential memoranda ("CM") written by defendant Parker, an Institutional Gang Reviewer at CSP-Sac, which refer to three separate "gang rosters" listing plaintiff as an active EME associate, obtained pursuant to cell searches of three validated EME associates. (Id. at 6.) In the SAC, plaintiff sets forth at length his reasons for contesting the reliability of these items. (Id. at 7-9.)

On July 3, 2008, defendant Stewart, a Sergeant in CSP-Sac's Institutional Gang Investigative unit, interviewed plaintiff regarding his validation. Plaintiff alleges that, to avoid being misinterpreted, he presented Stewart with a one-page handwritten response disputing the allegations in the gang validation packet. (Id. at 9.)

On July 4, 2008, defendant Ramos, a Captain at CSP-Sac, served plaintiff with a 114-D Lock Up Order that set forth the reasons for plaintiff's placement in Ad Seg. The Lock-Up Order was signed by defendants Ventimiglia and Ramos. Plaintiff alleges that he verbally requested the assistance of an investigative employee, to which defendant Ramos replied, "You are not entitled [to an investigative employee] at this point because there is an investigation being done." (Id. at 10.) According to plaintiff, he never waived the assistance of an investigative employee, and repeatedly raised the issue, such as through the filing of 602 appeals and at various classification committee appearances, to no avail. (Id. at 10-11.) On March 11, 2009, a Director's Level Appeal decision issued which provided that "there is no indication that appellant requested an [investigative employee] or that the Classification Hearing Officer deemed the assignment of an [investigative employee] as being necessary pursuant to . . . California Code of Regulations, Title 15, section 3339(b)." (Id. at 11.) Plaintiff alleges the involvement of defendants Warden Walker and Pool, an Appeals Coordinator at CSP-SAC, in the denial of an investigative employee. (Id.)

On August 12, 2008, defendant Parker searched plaintiff's cell and seized his address book. Plaintiff's attempts to secure the return of the address book were unavailing. Plaintiff alleges the involvement of defendant Stewart in his subsequent, failed appeals of the decision to retain his address book. (Id. at 12.)

On December 12, 2008, plaintiff was notified that he had been validated as an active prison gang associate by a Special Services Unit Review committee consisting of defendants Fisher, Kisser, and Williams. (Id. at 10-11.) Plaintiff's appeals of the validation were denied. Plaintiff alleges the involvement of defendant Ventimiglia in the denial. (Id. at 11-12.)

At some later, unspecified time, plaintiff was transferred to the SHU at Pelican Bay State Prison based on his validation as a gang associate. (Id. at 2.) At the hearing on this motion, defendants' counsel informed the court that plaintiff is now a general population inmate at Kern Valley State Prison.

B. Procedural History

This action commenced on November 20, 2009, with the filing of plaintiff's initial complaint. (ECF No. 1.) After screening, the court permitted plaintiff to proceed against eighteen defendants. (ECF No. 6.) On January 11, 2010, plaintiff filed a motion for leave to file an amended complaint, which the court granted. (ECF Nos. 10, 13.) On March 22, 2010, plaintiff filed his first amended complaint. ("FAC," ECF No. 14.) On April 22, 2011, defendants filed a motion to dismiss the FAC. (ECF No. 30.) On March 2, 2012, the court issued findings and recommendations, recommending therein that the motion be granted in part and denied in part. (ECF No. 43.) The findings and recommendations state in relevant part:

(Id. at 28.) These findings and recommendations were adopted by U.S. District Judge Garland E. Burrell, Jr. on March 30, 2012. (ECF No. 47.)

Defendants then filed an interlocutory appeal challenging the court's denial of their qualified immunity defense, which they had raised in their motion to dismiss. (ECF No. 57.) On May 28, 2013, the Ninth Circuit issued a memorandum opinion affirming the court's order. (ECF No. 63.)

On September 11, 2013, Judge Burrell issued an order that, inter alia, granted plaintiff's earlier request for appointment of counsel. (ECF No. 67.) Accordingly, on July 28, 2014, Carter C. White entered an appearance for the limited purpose of assisting plaintiff in filing his second amended complaint. (ECF No. 71.) That same day, plaintiff filed his second amended complaint. (ECF No. 69.) Subsequently, on October 14, 2014, the court appointed Mark E. Merin and Paul H. Masuhara, plaintiff's present attorneys, as counsel. (ECF No. 80.)

On October 14, 2014, defendants filed the instant motion to dismiss the SAC in its entirety. (ECF No. 76.) On December 19, 2014, plaintiff filed an opposition to the motion to dismiss. (ECF No. 82.) On January 8, 2015, defendants filed a reply thereto. (ECF No. 83.) The court now turns to the substance of the motion.

II. Standards

A. Standard re: Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. Cnty of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). To survive dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). "[I]n a line of cases stretching back nearly 50 years, we have held that in dismissing for failure to state a claim under Rule 12(b)(6), a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations and internal quotation marks omitted).

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).

B. Standard re: qualified immunity

Much of defendants' motion rests on a qualified immunity defense.

"Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009). The objective of the qualified immunity doctrine is to ensure "that `insubstantial claims' against government officials be resolved prior to discovery and on summary judgment if possible." Anderson v. Creighton, 483 U.S. 635, 640 n. 23 (1987), citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). Meeting this objective requires that immunity questions be resolved "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). Qualified immunity may be raised on a motion to dismiss. See Mitchell v. Forsyth, 472 U.S. 511, 527 (1985) ("Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.").

"An official is entitled to . . . qualified immunity where his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Until recently, courts considering a claim of qualified immunity followed the two-step protocol established in Saucier v. Katz, 533 U.S. 194 (2001), which required a court first to determine whether the defendant violated a constitutional right and then to determine whether that right was clearly established. In Pearson, the Supreme Court reversed this earlier rule and gave courts discretion to grant qualified immunity on the basis of the `clearly established' prong alone, without deciding in the first instance whether any right had been violated. Pearson, 555 U.S. at 244. Thus, a court may grant qualified immunity if "the facts that a plaintiff has alleged or shown [do not] make out a violation of a constitutional right" or if "the right at issue was [not] `clearly established' at the time of defendant's alleged misconduct.'" James v. Rowlands, 606 F.3d 646, 650-51 (9th Cir. 2010), quoting Pearson, 555 U.S. at 232 (internal citations omitted). Conversely, a motion based on qualified immunity will be denied if, construing the facts in the light most favorable to the party asserting the injury, defendant violated a constitutional right that was clearly established at the time of the alleged injury. Saucier, 533 U.S. at 201.

III. Analysis

A. Plaintiff's concessions

In his opposition, plaintiff concedes several matters raised by defendants' motion to dismiss. These are as follows:

The order herein reflects these concessions. The court expresses its appreciation for plaintiff's counsel's efforts in this regard.

B. May plaintiff proceed on his Fourteenth Amendment due process claims regarding gang validation?

In its March 2, 2012 order, the court recognized that California state regulations governing prison gang validations have been held to create cognizable due process interests. (ECF No. 43 at 12-14.) In reaching this conclusion, the court relied on Ninth Circuit precedent holding that, in order to comply with due process standards, the initial segregation of a suspected gang associate must comply with the following requirements:

Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986) (fn. omitted); accord, Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003).

Plaintiff alleges three violations of his due process rights in connection with his validation as a gang associate, specifically, that defendants: (i) denied him an investigative employee despite his requests for one; (ii) lacked the requisite quantum of evidence to validate him as a gang associate; and (iii) denied him meaningful classification reviews. These claims are assessed in turn below.

1. May plaintiff proceed on his Fourteenth Amendment due process claims regarding defendants' failure to assign him an investigative employee?

Plaintiff alleges that defendants Stewart and Ramos violated his due process rights by failing to appoint an investigative employee in connection with his gang validation.

Plaintiff pleads the relevant facts as follows:

(SAC, ECF No. 69 at 9-10.)

Defendants move to dismiss this claim on qualified immunity grounds. Their central contention is that "no established legal authority recognizes a federal due-process right to the assignment of an investigative employee during gang-validation proceedings. [. . .] The law is not so clear that every reasonable officer would understand that not assigning [plaintiff an] investigative employee violated the Fourteenth Amendment." (Motion, ECF No. 76-1 at 22.) In support, they cite Baker v. Lewis, No. C 11-3493 LHK (PR), 2012 WL 1932867 (N.D. Cal. May 29, 2012), and Lopez v. Galaza, No. 2:02-cv-2563-FCD-DAD, 2006 WL 3147686 (E.D. Cal. Nov. 1, 2006).

In opposition, plaintiff argues that neither Baker nor Lopez supports the proposition advanced by defendants. (ECF No. 82 at 8-9.) There is some merit to plaintiff's argument. While the court in Baker wrote that "due process does not mandate that Plaintiff receive an investigative employee to assist in his hearing," 2012 WL 1932867 at *3, the remainder of the order makes clear that the hearing in question concerns a periodic review of gang validation status, not an initial validation. In particular, the court, in denying the Baker plaintiff's claim regarding an investigate employee, relied on a California prison regulation providing that "[a]n investigative employee shall not be assigned at these periodic classification committee reviews." Cal. Code Regs. tit. 15, § 3341.5(c). Id. at *3 n.1. Defendants' citation to Lopez appears similarly inapt. Lopez concerns a challenge, brought under 28 U.S.C. § 2254, to a prison disciplinary conviction that resulted in petitioner's loss of good-time credits. That court's conclusion that "the right to the services of an investigative employee . . . [is not] guaranteed by the United States Constitution," 2006 WL 3147686 at *14, is not conclusive to the question of the scope of due process owed prisoners facing gang validation proceedings.

Plaintiff next insists that, because the court previously held that plaintiff could challenge the denial of an investigative employee on due process grounds, therefore the law of the case forbids defendants from attempting to revisit this determination through their qualified immunity challenge. (Opposition, ECF No. 82 at 8.) This position mischaracterizes the court's prior order. Defendants previously contended that the documents attached to plaintiff's first amended complaint demonstrated that he had waived the appointment of an IE. After examining the documents in questions, the court noted that the alleged waiver was "not as clear cut as defendants contend," (ECF No. 4 at 17), and on this basis, permitted plaintiff to re-allege his claim in the SAC. The court has never reached the question of whether, as a matter of law, plaintiff's due process rights required the appointment of an IE.

In reply, defendants repeat their contention that "[n]o legal authority provides sufficient notice, such that every reasonable prison official would understand — beyond debate — that the denial of an investigative employee during gang-validation proceedings violates the Fourteenth Amendment." (ECF No. 83 at 6.) In support, they cite Mattos v. Agarano, 661 F.3d 433, 448 (9th Cir. 2011) (en banc) (holding that defendants were entitled to qualified immunity against excessive force claim because panel was unable to "conclude . . . in light of . . . existing precedents, that every reasonable official would have understood beyond debate that tasing [the Mattos plaintiff] in these circumstances constituted excessive force.") (internal quotations omitted).

Under Saucier, 533 U.S. at 194, the issue presented is as follows: if a California prison inmate placed in administrative segregation and facing gang validation proceedings does not decline (and, in fact, affirmatively seeks) an investigative employee, whether constitutional due process requires that he be assigned one; and if so, whether that right was clearly established in July 2008, when the challenged gang validation proceedings began.

The court has reviewed the applicable prison regulations in effect at the time that plaintiff was subject to gang validation. The regulations define "investigative employee" as an individual "designated to gather information for the senior hearing officer or disciplinary hearing committee as described in section 3315(d)(1)(A)."4 Cal. Code Regs. tit. 15, § 3318(a). The referenced section, in turn, provides as follows:

Cal. Code Regs. tit. 15, § 3315(d)(1)(A). California Code of Regulations, title 15, § 3337, provides that, if an inmate's retention in administrative segregation is approved on initial review, then staff must then make a determination regarding "the inmate's desire to call witnesses or submit other documentary evidence." To this end: "If the inmate requests the presence of witnesses or submission of documentary evidence at a classification hearing on the reason or need for retention in segregated housing, an investigative employee will be assigned to the case. A request to call witnesses and the names of witnesses must be submitted in writing by the inmate." Cal. Code. Regs. tit. 15, § 3337(b).

Accordingly, the question is if defendants violated the quoted regulations by not assigning an investigative employee to the matter, did they thereby also violate plaintiff's federal due process rights? This appears to be a matter better settled at summary judgment or at trial than on a motion to dismiss. The Ninth Circuit has made clear that "the due process clause does not require detailed written notice of charges, representation by counsel or counsel-substitute, an opportunity to present witnesses, or a written decision describing the reasons for placing the prisoner in administrative segregation." Toussaint, 801 F.2d at 1100-01. However, the Ninth Circuit does require prison officials to "allow the prisoner to present his views." Id. at 1100. At this stage, it cannot be known whether plaintiff sought to submit documentary evidence regarding his segregation. There is also nothing before the court regarding the circumstances of defendants' determination that plaintiff, while in administrative segregation, could "collect and present the evidence necessary for an adequate presentation of a defense," Cal. Code Regs. § tit. 15, § 3315(d)(1)(A)(2). It may be that defendants' failure to assign an investigative employee to plaintiff prevented him from adequately "present[ing] his views," per Toussaint, 801 F.2d at 1100, thereby violating his due process rights.

Further reinforcing the conclusion that a decision on this matter is premature is the fact that plaintiff was subject to three proceedings that overlapped in time: validation as a gang associate, placement in administrative segregation, and placement in the SHU. Plaintiff's allegations and defendants' motion do not allow the court to assess what due process was afforded plaintiff in each of these proceedings.

Finally, the court notes that there is Ninth Circuit precedent for considering the involvement of an investigative employee when assessing the adequacy of due process in the validation context. In Redd v. McGrath, 254 Fed. Appx. 642 (9th Cir. 2007), the Ninth Circuit upheld the district court's determination that a California state prisoner's due process rights were not violated in proceedings that resulted in his validation as a gang member. Among the factors considered by the panel in reaching this determination was the fact that the petitioner "had met with an investigative employee who explained the evidence used to validate [petitioner's] gang membership and gave [him] the opportunity to refute it." Id. at 644. It is reasonable to infer from this (admittedly unpublished) opinion that the presence of an investigative employee can help safeguard prisoners' due process rights in the gang validation process.

At hearing, defendants' counsel argued that defendant Stewart is not properly named as a defendant under this claim.5 The sole allegation concerning Stewart in connection with this claim reads:

(SAC, ECF No. 69 at 9.) Plaintiff's counsel conceded this point, but indicated that he wished to speak to his client to verify whether Stewart had any additional involvement in the denial of an investigative employee. Accordingly, Stewart will be dismissed from this claim without prejudice.

2. May plaintiff proceed on his Fourteenth Amendment due process claims challenging the evidence used in his gang validation?

Plaintiff alleges that his Fourteenth Amendment due process right were violated when defendants "[v]alidated [p]laintiff as a gang associate and placed [p]laintiff in the SHU on the basis of erroneous, unreliable and untrue information that does not constitute `some evidence.'" (SAC, ECF No. 69 at 12.)

Defendants Stewart and Ramos are named as defendants under this claim. (Opposition, ECF No. 82 at 23.) In his opposition, plaintiff seeks leave to amend the SAC to name defendants Parilla, Fisher, Kisser, and Williams as additional defendants. (Id. at 21-22.) At hearing, plaintiff's counsel indicated that he would like to add defendant Ventimiglia as an additional defendant under this claim.

The validation decision meets federal substantive due process requirements if it is supported by "some evidence." Bruce, 351 F.3d at 1283. A single piece of evidence may be sufficient to meet the "some evidence" requirement if it has "sufficient indicia of reliability." Id. at 1288 (citing Toussaint, 926 F.2d at 803).

Defendants argue that they "are entitled to qualified immunity because a reasonable officer could understand the Supreme Court's decision in Swarthout v. Cooke, ___ U.S. ___, 131 S.Ct. 859 (2011) [(holding that the Due Process clause does not require proper application of California's "some evidence" standard in the context of a parole hearing)] to imply that inmates can bring only procedural due-process challenges to gang-validation decisions." (Motion, ECF No. 76-1 at 26.)

Defendants' reading of Swarthout is inapt. Putting aside the fact that Swarthout was decided well after plaintiff was validated as a gang associate, the Ninth Circuit recently reaffirmed the propriety of the federal "some evidence" evidentiary standard in the gang validation context, writing:

See Castro v. Terhune, 712 F.3d 1304, 1314 n.4 (9th Cir. 2013). The Ninth Circuit in Castro also made clear that "procedural, not substantive, due process guarantees inmates that their validation will be based on some evidence." Id. at 1314.

Defendants devote a significant portion of their moving papers to arguing that plaintiff was properly validated as a gang associate. Many of their arguments require the court to weigh evidence in a manner that is better suited for summary judgment or trial. However, one argument — renewed by defendants' counsel at hearing — merits the court's attention: that plaintiff has conceded the sufficiency of at least one piece of evidence used to validate him as a gang associate, and that he must be held to that concession.

Plaintiff's FAC included as exhibits two copies of an informational chrono on form CDC 128B, dated July 11, 2005, prepared by defendant Parilla. (ECF No. 14 at 42, 97.) The chrono identifies the address for Jesse Enriquez's parents in plaintiff's address book as an alleged gang mail-drop address. Defendants previously moved to dismiss the FAC (ECF No. 30), which plaintiff opposed. In support of his opposition, plaintiff filed a declaration in which he stated, under penalty of perjury:

(ECF No. 39-1 at 71.) In his opposition, plaintiff elaborated on this statement, writing:

(ECF No. 39 at 13.)

By contrast, in the SAC, plaintiff alleges that he obtained Enriquez's parents' home address in order to be "introduce[d] . . . to a female companion once [plaintiff] was released from the SHU. . . ." (ECF No. 69 at 5.)

Defendants argue that plaintiff, having previously denied that he had the address in his possession, now admits to possessing it and seeks instead to provide an alternate explanation for its possession. (Motion, ECF No. 76-1 at 29-30.) Defendants contend that, in so doing, plaintiff has admitted to possession of a gang mail drop address, and consequently, that his alternate explanation is unavailing. At hearing, defense counsel argued that plaintiff has at no point denied that it was a mail drop address, adding, "[Plaintiff] has conceded to possession of a mail drop address that was used for the same gang that he was validated as being an associate of. It doesn't matter if he can provide alternate explanations for his possession of that address." After engaging in a colloquy with the court regarding this issue, plaintiff's counsel stated that he wished to discuss the matter further with his client, and if the court chose to dismiss the claim, asked that it be without prejudice so that he could seek leave to amend if the discussions warranted amendment.

It does appear to the court that plaintiff is now seeking to explain the possession of a gang mail drop address that would have justified his validation as a gang associate under the "some evidence" standard. "Due process does not require that there be no alternative explanation for evidence used in gang validation." Goolsby v. Gentry, no. 1:11-cv-01773-LJO-DLB, 2014 WL 4930759 (E.D. Cal. Sep. 29, 2014) (citing Superintendent v. Hill, 472 U.S. 445, 457 (1985)). The court is also troubled by the apparently inconsistent positions taken by plaintiff concerning this evidence in his pleadings. Therefore, the court will dismiss plaintiff's Fourteenth Amendment due process claim challenging the sufficiency of the evidence used to validate plaintiff as a gang associate.6 Plaintiff's counsel can seek leave to file an amended complaint that pleads this claim if discussions with his client demonstrate a means to do so that is consistent with plaintiff's prior allegations and averments in this action.

3. May plaintiff amend his complaint to re-state his Fourteenth Amendment due process claim regarding classification reviews?

Plaintiff alleges a due process violation due to defendants' "fail[ure] to provide meaningful classification reviews" of his placement in the SHU. (SAC, ECF No. 69 at 13.) Defendants contend — and plaintiff concedes — that the claim is inadequately pled, as plaintiff has failed to include sufficient supporting factual allegations. (Motion, ECF No. 76-1 at 23; Opposition, ECF No. 82 at 11.)

Plaintiff seeks leave to amend in order to properly plead the claim. (ECF No. 82 at 12.)

Defendants oppose this request because, in their view, plaintiff "had no clearly established right to a periodic, post-placement review of his retention in segregated confinement." (ECF No. 76-1 at 24.) In support, they cite Brown v. Oregon Dept. of Corr., 751 F.3d 983 (9th Cir. 2014), which provides in pertinent part:

Id. at 989-90. Plaintiff did not respond to this argument in his opposition, but at the hearing on the motion, plaintiff's counsel conceded the correctness of defendants' argument.

Accordingly, defendants' motion to dismiss this claim on qualified immunity grounds will be granted.

C. May plaintiff proceed on his Fourteenth Amendment and Eighth Amendment claims regarding his placement in the SHU?

Plaintiff alleges that his validation as a gang associate and retention in the SHU violated his Fourteenth Amendment due process rights. He contends that these actions "[p]laced [him] in an inescapable predicament that violates the fundamental principles of due process of law. Because Defendants have incorrectly labeled Plaintiff a gang associate, Plaintiff cannot be released unless he divulges information, which he does not have, via the `debriefing' process." (SAC, ECF No. 69 at 13-14.)

Plaintiff also pleads an Eighth Amendment violation, alleging that "his erroneous gang validation and subsequent indefinite confinement in the SHU" constitutes cruel and unusual punishment. (Id. at 14-15.)

Plaintiff bases his claim at least in part on "defendants' policy of indefinite and prolonged SHU placement. . . ." (Id. at 15.) In his opposition, plaintiff reiterates that the challenged "indefinite SHU assignment claims were inflicted pursuant to a policy alleged by Plaintiff." (ECF No. 82 at 24.)

Defendants Secretary Beard, Fisher, Kisser, and Williams are named as defendants under both claims. (ECF No. 82 at 23.)

Plaintiff seeks damages, as well as injunctive relief, requiring the defendants to:

(SAC, ECF No. 69 at 16-17.)

Two difficulties arise in assessing these claims and, consequently, in deciding defendants' motion to dismiss.

The first difficulty is that, in his opposition, plaintiff appears to concede that certain of his claims for injunctive relief under the Fourteenth Amendment and Eighth Amendment ought to be dismissed, as they are encompassed by the class action in Ashker v. Brown, No. C 09-5796 CW (N.D. Cal). (Opposition, ECF No. 82 at 24.) Plaintiff nevertheless contends that his other claims for injunctive relief should go forward, writing, "The alleged constitutionally-offensive policy condemning Plaintiff to indefinite SHU assignment supports Plaintiff's injunctive relief claims, and does not require dismissal." (Id.) Unfortunately, plaintiff does not make clear which of the forms of injunctive relief he seeks are encompassed by Ashker and therefore ought to be dismissed, and which ought to proceed.

The second difficulty is that, to the extent plaintiff bases these claims on CDCR policy, he cannot seek damages from defendant Secretary Beard, who is sued only in his official capacity. It is well-settled that the Eleventh Amendment bars damages claims against state officials sued in their official capacity under § 1983. Kentucky v. Graham, 473 U.S. 159, 169 (1985). Conversely, it is not clear to the court how individual defendants Fisher, Kisser, and Williams can be held liable for damages for carrying out CDCR policy. As defendants point out, plaintiff, in pleading these claims, has failed to allege with specificity the involvements of the defendants named in an individual capacity. (Reply, ECF No. 83 at 11.)

The decisive factor for the court, however, is that plaintiff has failed to plead any "allegedly unique conditions of [his] SHU placement" (Findings and Recommendations, ECF No. 43 at 20) that would distinguish his claims from those raised by the Ashker class action. At hearing, plaintiff's counsel conceded this fact, but expressed his wish to speak to his client in order to better understand the circumstances of his SHU placement, and seek amendment thereafter if warranted. The court will dismiss this claim without prejudice so that he may do so.

D. May plaintiff proceed on his First Amendment claim?

Plaintiff alleges that his First Amendment right to freedom of association was violated by the following actions:

(SAC, ECF No. 69 at 9, 16.) This claim is brought against defendants Stewart, Parker, Parilla, Fisher, Kisser, Williams. (Opposition, ECF No. 82 at 23.)

The court previously held that "[s]hould plaintiff be able to demonstrate that he was improperly validated . . . allegations [similar to those above], properly framed, may support cognizable claims under the First Amendment." (ECF No. 43 at 24.) As the court has dismissed plaintiff's Fourteenth Amendment due process claim regarding the sufficiency of the evidence used to validate him as a gang associate, his First Amendment claim must fail as well. Nevertheless, as discussed at hearing, plaintiff's counsel may seek leave to amend and re-allege this claim if discussions with plaintiff so warrant.

IV. Conclusion

In light of the foregoing, IT IS HEREBY ORDERED that:

1. Defendants' motion to dismiss plaintiff's Fourteenth Amendment due process claim against defendant R. Ramos for failure to provide an investigative employee is denied.

2. The following claims are dismissed with prejudice:

c. Plaintiff's Fourteenth Amendment due process claim for failure to provide an investigative employee, against defendant T. Ventimiglia.

d. Plaintiff's Eighth Amendment and Fourteenth Amendment claims based on the conditions of his SHU placement, against defendants J. Stewart, G. Parker, R. Ramos, and R. Parilla.

e. Plaintiff's First Amendment claims against defendants Secretary Jeffrey Beard and R. Ramos.

f. Plaintiff's claims for injunctive relief pursuant to his Fourteenth Amendment claim for improper gang validation and his First Amendment claim.

3. The following claims are dismissed without prejudice:

b. Plaintiff's Fourteenth Amendment due process claim challenging the sufficiency of the evidence used in his gang validation.

c. To the extent not addressed above, plaintiff's Eighth Amendment and Fourteenth Amendment claims based on the conditions of his SHU placement.

4. Plaintiff is granted leave to file a motion to amend the Second Amended Complaint within sixty days of filing of this order. Any such motion should set forth the new information that has come to light as a result of discussions between plaintiff and plaintiff's counsel, as well as the legal basis for any amendment. Any motion to amend should include a proposed Third Amended Complaint as an attachment. Plaintiff may not therein plead any claims or the involvement of any defendants not already alleged in the Second Amended Complaint. If plaintiff chooses to file a motion to amend, the parties should meet and confer and thereafter file a stipulation regarding a proposed briefing schedule for the motion.

5. Discovery in this matter is stayed for sixty days from the date of entry of this order.