DENNIS L. BECK, Magistrate Judge.
Plaintiff Thomas Goolsby ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on October 25, 2011.
On May 20, 2013, the Court screened Plaintiff's First Amended Complaint ("FAC") and found the following cognizable claims: (1) First Amendment retaliation claim against Defendants Gentry, Noyce, Eubanks, Tyree, Medrano, Holman, Holland and Steadman; and (2) violation of due process against Defendants Eubanks, Tyree, Medrano, Holland and Gutierrez. The Court dismissed all other claims and Defendants.
On November 26, 2013, Defendants filed a motion to dismiss the due process claims based on failure to state a claim and failure to exhaust.
Plaintiff filed his opposition on January 6, 2014, and with Court permission, he filed a supplemental opposition on January 28, 2014.
Defendants filed their reply on March 13, 2014.
Plaintiff filed a motion for leave to file a surreply, along with a surreply, on March 24, 2014.
On April 1, 2014, based on the parties' submission of outside evidence, the Court converted the portion of the motion to dismiss based on failure to state a claim into a motion for partial summary judgment.
On April 10, 2014, based on the Ninth Circuit's ruling in
The instant Findings and Recommendations address only the portion of the motion for summary judgment based on the failure to state a claim portion of the original motion to dismiss. The issue is fully briefed and ready for decision pursuant to Local Rule 230(l).
Parties do not have the right to file surreplies and motions are deemed submitted when the time to reply has expired. Local Rule 230(l). The Court generally views motions for leave to file a surreply with disfavor.
Here, Plaintiff's surreply addresses issues that were raised for the first time in the reply and/or clarifies some of Plaintiff's arguments. Given that Defendants' motion was construed as a motion for summary judgment, and because Defendants did not oppose the motion, the Court will GRANT Plaintiff's request. The Court notes, however, that the arguments in the surreply did not factor into the Court's decision.
Plaintiff alleges that he was validated as an associate of the Nazi Low Rider ("NLR") prison gang in February 2011. He believes that he was validated in retaliation for his lawsuits and appeals. In connection with his validation, Plaintiff alleges that Defendant Eubanks used an illegal "filter list" as evidence to support the validation. On January 26, 2010, Defendant Eubanks authored a confidential memorandum indicating that he found a filter list in the property of two other inmates. Plaintiff's name appeared on this list and Defendant Eubanks assumed that it was reliable evidence of gang association. Plaintiff appealed this issue. The appeal was answered by Defendants Holland and Gutierrez, who were aware of the use of the illegal filter list but continued to allow its use.
Plaintiff further contends that in response to the validation packet, he wrote a detailed rebuttal to the allegations. He handed his rebuttal to Defendant Eubanks, yet the packet stated that the investigation was already complete. Defendant Eubanks did nothing with the rebuttal and failed to investigate his contentions. Plaintiff contends that this violated his right to due process because it denied him an opportunity to be heard in a meaningful way. Plaintiff appealed this issue. The appeal was answered by Defendants Holland and Gutierrez, who were aware of the issue but did nothing to allow Plaintiff to be heard in a meaningful way.
Next, Plaintiff alleges that Defendant Medrano reviewed Plaintiff's address book, which was confiscated by Defendant Tyree on May 15, 2009. He contends that this address book included names of prisoners, some of which were friends or were witnesses to planned litigation. Defendant Medrano reviewed the names and came up with two inmates who were validated. Plaintiff had no idea that these inmates were validated at the time he received their information, and had he known, he would not have possessed their information. The two inmates in question were both witnesses in a legal action that Plaintiff was prosecuting, and neither was contacted for personal or gang-related reasons. He contends that Defendants Medrano and Tyree had no evidence that Plaintiff possessed their information for any reasons other than legitimate ones. Plaintiff brought this issue to the attention of Defendants Holland and Gutierrez, but they called to review the issue in any meaningful manner.
Any party may move for summary judgment, and 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) (quotation marks omitted);
Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case.
In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence,
The assignment of validated gang members and associates to the SHU is an administrative measure rather than a disciplinary measure, and is "essentially a matter of administrative discretion."
In addition to these minimal protections, there must be "some evidence" supporting the decision.
The "some evidence" review requires the Court to ask only "whether there is any evidence in the record that could support the conclusion."
Evidence only must bear "some indicia of reliability" to be considered "some evidence."
Plaintiff argues that he is entitled to additional procedural protections because his validation extended his release date pursuant to California Penal Code section 2933.6 and section 3043.4(b) of Title 15 of the California Code of Regulations. However, the Court addressed this argument in the prior screening order, and the analysis has not changed. In the May 20, 2013, screening order, the Court explained:
ECF No. 20, at 9.
Plaintiff continues to argue that, regardless of the law, his release date was extended. Again, if Plaintiff's release date was extended, it is not because credits were taken away. Rather, pursuant to the sections that he relies on, he cannot earn good time credit while in Ad-Seg or the SHU after validation.
While Plaintiff argues that Defendants cannot use certain items in his validation packet, his overall contention relates to his belief that his validation packet was a "sham" and "manufactured" in retaliation for lawsuits and prison appeals. ECF No. 43, at 4.
However, false charges alone do not state a claim under section 1983 because "falsely accusing an inmate of misconduct does not violate a right secured by the Constitution or laws of the United States."
Similarly, as discussed above, an inmate cannot challenge the sufficiency of the evidence against him. Thus, the Court does not examine the entire record, independently assess witness credibility, or reweigh the evidence.
Plaintiff suggests that he is not asking the Court to re-weigh any evidence, but is asking the Court to take note that Defendant Noyce had already examined the same evidence and determined, in August 2010, that it was not sufficient to validate him. Plaintiff believes that Defendant Noyce's August 2010 decision is proof that his validation was a sham.
However, Defendant Noyce's memorandum simply states that he conducted an "extensive review" of Plaintiff's central file at the request of the Institutional Classification Committee for gang status. ECF No. 43, Ex. A. Defendant Noyce concluded that there was insufficient information "within the Central" to be used in the Gang Validation Process. ECF No. 43, Ex. A. Therefore, other than Plaintiff's conclusory statement, there is no evidence of what documents Defendant Noyce examined in August 2010. Indeed, at least one piece of Plaintiff's validation packet does not appear to have existed in August 2010. ECF No. 52, Ex. Y (referring to a CDCR 128B dated 2/8/11 as an item meeting validation requirements).
In any event, Defendant Noyce's August 2010 analysis is not relevant to whether Plaintiff received procedural due process in relation to his current validation.
With these standards in mind, the Court will address Plaintiff's allegations.
Plaintiff alleges that Defendant Eubanks confiscated a "filter list" in the property of two other inmates. Plaintiff contends that his name appeared on the list and Defendant Eubanks improperly assumed that it was reliable evidence of gang association.
Plaintiff admits, and it is therefore undisputed, that Inmates Gehrke and Allen had Plaintiff's name, prison number, hometown and nickname "Klumzy" on a list in their cell. It is also undisputed that Defendant Eubanks confiscated this list on December 18, 2009, during a search of Gehrke's and Allen's personal property. Inmates Gehrke and Allen are validated NLR members, and Allen is also a validated associate of the Aryan Brotherhood ("AB") prison gang. Defendant Eubanks referenced this "roster" in a confidential memorandum dated January 26, 2010, and noted that Plaintiff's inclusion on the "roster" evidences his association with the NLR and AB. Trenary Decl., Ex. B.
The issue therefore becomes a question of law-whether, as Plaintiff argues, the use of the list was improper. Contrary to Plaintiff's first argument, there is no per se bar against using such lists. Plaintiff suggests that the lists are inherently unreliable, but his belief does not alter the fact that such lists are permissible in gang validations. See 15 Cal. Code Regs. 3378(c)(8)(C);
Plaintiff also argues that the list is unreliable for numerous reasons. He questions how a single list can be evidence of association with two gangs, but the inmates who were in possession of the list were validated members of two gangs.
Plaintiff next disagrees with Defendant Eubanks' finding that the list was reliable because it was obtained during an IGI investigation. Trenary Decl., Ex. B. According to Plaintiff, section 3321(c)(4) requires a separate investigation to corroborate the initial evidence. Plaintiff contends that because a separate investigation did not corroborate the fact that Plaintiff gave his information to the inmates for gang reasons, it is not reliable. Section 3321(c)(4), however, states only that a confidential source's reliability may be established where "part of the information provided is corroborated through investigation of by information provided by non-confidential sources." There does not need to be a specific finding that Plaintiff gave his information to the inmates for gang-related reasons.
Similarly, Plaintiff attempts to argue that the list is not reliable because the inmates had Plaintiff's name and other information for a legitimate purpose. For example, Inmate Allen was a witness in another of Plaintiff's lawsuits, and Inmate Gehrke joined in Plaintiff's appeals and was a "co-plaintiff" with Plaintiff in two separate actions. According to Plaintiff, this means that he was required by the Court and CDCR to give these inmates his information.
Plaintiff's argument fails, however. Due process does not require that there be no alternative explanation for evidence used in gang validation.
Once the document is found to have an indicia of reliability, as here, Plaintiff's inclusion on the list constitutes some evidence of gang affiliation. Based on the undisputed facts, there is no genuine issue of material fact related to the filter list.
Plaintiff alleges that Defendant Medrano reviewed Plaintiff's address book, which was confiscated by Defendant Tyree on May 15, 2009. Defendant Medrano reviewed the names and came up with two inmates who were validated NLR members. Plaintiff had no idea that these inmates were validated at the time he received their information, and had he known, he would not have possessed their information. He alleges that the two inmates in question were witnesses in one of Plaintiff's legal actions, and that Medrano and Tyree had no evidence that Plaintiff possessed their information for any reasons other than legitimate ones.
Plaintiff admits, and it is therefore undisputed, that Plaintiff had the names, prisoner numbers and addresses of inmates Baumgaertel and Pandolfi. He argues, however, that he had legitimate legal reasons for having their information. For example, Plaintiff contends that Inmate Baumgaertel was witness in one of Plaintiff's legal actions, and that the Court required Plaintiff to submit his name and prison number. Plaintiff explains that he had Inmate Pandolfi's contact information because he was involved in a 2007 cell extraction for which Plaintiff contemplated litigation.
Again, however, the fact that there may have been an alternate explanation as to why Plaintiff possessed their information does not, alone, preclude use of the information. Hill, 472 U.S. at 457. Nor do Defendants have to prove that Plaintiff had their information for gang related reasons.
Despite Plaintiff's arguments, address books can be used in gang validations, 15 Cal. Code Regs. § 3378(c)(8)(G), subject only to the indicia of reliability requirement. In a February 8, 2011, IGI Review (CDC 128-B), Defendant Medrano stated that Plaintiff's address book contained the names and prison numbers of two validated NLR members and one validated AB associate. Defendant Medrano found that by keeping this information, Plaintiff evidenced his past and current association with these inmates, as well as the fact that Plaintiff is in "good standing." Trenary Decl., Ex. C.
Based on the undisputed facts, there is no genuine issue of material fact related to the use of Plaintiff's address book.
Finally, Plaintiff alleges that he gave Defendant Eubanks a written rebuttal, but Defendant Eubanks denied him a meaningful opportunity to be heard.
It is undisputed that on or about February 11, 2011, Plaintiff gave Defendant Eubanks his written rebuttal to the gang investigation. Trenary Decl., Ex. A. Plaintiff argues, however, that this was not "meaningful" because at that time, the investigation had already concluded.
Plaintiff is correct, and Defendants agree, that the investigation was "complete" when Plaintiff handed his rebuttal to Defendant Eubanks. However, that the investigation was complete does not mean that a decision had been made on Plaintiff's validation. Indeed, pursuant to the procedure set forth in section 3378(c)(6), the source items used must be presented to the inmate prior to an opportunity to be heard. "All source items referenced in the validation or inactive status review shall be disclosed to the inmate/parolee at the time of notification." 15 Cal. Code Regs. § 3378(c)(6)(C).
It is only logical that an investigation into the source items would be completed prior to notification to the inmate. This allows the inmate to prepare for the interview, where he will be given an opportunity to be heard and an opportunity to challenge the items in his validation packet. According to the Gang Validation Chrono completed by Defendants Noyce and Eubanks, Plaintiff was told of the information being utilized in the gang validation process on February 11, 2011. He was also advised that an interview would be held not less than twenty-four hours after this notice. Trenary Decl., Ex. A.
Plaintiff's argument is a distinction without a difference. He argues that the proper steps are: (1) first, an inmate is offered an opportunity to explain the situation; (2) second, the IGI takes the statements into consideration and does any necessary further investigation; and (3) the IGI then decides whether to send the validation packet to the Office of Correctional Safety ("OCS"). ECF No. 43, at 14.
This is exactly what happened in this case. Plaintiff was given notice of the source items on February 11, 2014. On February 14, 2011, Plaintiff was interviewed regarding the documents utilized and he
In other words, while the investigation may be have been completed prior to Plaintiff offering his written statement, the decision to forward the packet to OCS was made after the IGI and assistant IGI considered his written statement. The OCS received the gang validation packet on March 2, 2011, and he was validated on March 29, 2011. Plaintiff was given notice of the validation on June 7, 2011. Trenary Decl., Ex. G.
The undisputed facts therefore demonstrate that Plaintiff was given a meaningful opportunity to be heard by the critical decision-maker.
The Court has determined that Defendants did not err in their use of the filter list or address book, and that these items had an indicia of reliability. Nonetheless, the Court notes that Defendants relied on additional items in their decision to validate Plaintiff.
Specifically, Defendants relied on these three additional items: (1) in debriefing of another NLR member, Plaintiff was identified as being a courier of notes on behalf of the NLR and being involved in the assault of another validated NLR member; (2) during the search of another inmate's cell, a note was discovered. The note, authored by Plaintiff, indicated that Plaintiff was "quite close" two validated NLR members; and (3) a handwritten note, discovered on March 19, 2009, identified Plaintiff as being involved in the assault referenced during the debriefing in item one. Trenary Decl., Exs. D, E, F.
In his supplemental opposition, Plaintiff submits his explanation of these three items. However, in reviewing the evidence, the Court does not examine the entire record, independently assess witness credibility, or reweigh the evidence. Castro, 712 F.3d at 1314 (citing Bruce, 351 F.3d at 1287). Whether there was "some evidence" to support a validation is a question of law. Id.
Therefore, despite Plaintiff's disagreement with the evidence, the Court finds that there is some evidence to support his validation and that this evidence meets the reliability requirement. Plaintiff has not shown that there is a triable issue of fact as to whether there was some evidence to support his validation.
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. Defendants' motion for partial summary judgment, filed November 26, 2013, be GRANTED;
2. Judgment be entered on Plaintiff's due process claim in favor of Defendants Eubanks, Medrano, and Tyree; and
3. This action proceed on Plaintiff's retaliation claim against Defendants Gentry, Noyce, Eubanks, Tyree, Medrano, Holman, Holland and Steadman.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." A party may respond to another party's objections by filing a response within fourteen (14) days after being served with a copy of that party's objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
The Court also notes that for many of Trenary's exhibits, Plaintiff attaches the same documents to his supplemental opposition.
