(PC) Valdez v. Beard et al, No. 1:2014cv01839 - Document 108 (E.D. Cal. 2018)
Court Description: ORDER GRANTING Plaintiff's 106 Motion; and FINDINGS and RECOMMENDATIONS to Grant Defendant's 85 Motion for Summary Judgment, signed by Magistrate Judge Jennifer L. Thurston on 8/27/18. Objections to F&R Due Within Fourteen Days. (Marrujo, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN VALDEZ, Plaintiff, 12 13 14 15 v. JEFFREY BEARD, et al., Defendants. 16 1:14-cv-01839-AWI-JLT (PC) ORDER GRANTING PLAINTIFF’S MOTION; AND FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF NOS. 85, 106) FOURTEEN-DAY DEADLINE 17 18 Plaintiff proceeds on a due process claim against several defendants premised on four 19 periodic reviews of plaintiff’s placement in the Security Housing Unit (“SHU”) due to his gang 20 validation. In their instant motion for summary judgment, defendants Beard, Castorena, Galaviz, 21 Jennings, Pina, Holland, Prince, Chavez, Vasquez, Edgar, Garcia, Mayfield, Patterson, Davey, 22 Oliveira, Perez, Campbell, Wilson and Lester argue that plaintiff received all the due process 23 protection to which he was entitled. Alternatively, they assert that they are entitled to qualified 24 immunity. Plaintiff opposes the motion. 25 The Court finds there is no dispute of material fact as to whether plaintiff received all the 26 process that he was due. Thus, the Court recommends that the defendants’ motion for summary 27 judgment be granted. 28 1 1 I. Plaintiff’s Allegations 2 In the fourth amended complaint, plaintiff accuses the defendants of violating his due 3 process rights in the context of Institutional Classification Committee (“ICC”) hearings convened 4 to determine whether plaintiff should be retained in the SHU based on his gang validation. The 5 specific instances at issue here are: (1) an ICC hearing held on June 24, 2014, where the defendants 6 decided to retain plaintiff in the SHU; (2) an October 6, 2014, confirmation of the ICC’s June 24, 7 2014, decision; (3) an ICC hearing held on January 7, 2015, where the defendants decided to retain 8 plaintiff in the SHU; (4) an ICC hearing held on July 14, 2015, where the defendants decided to 9 retain plaintiff in the SHU; and (5) an ICC hearing held on March 3, 2016, where the defendants 10 decided to retain plaintiff in the SHU. 11 At each of these ICC hearings, plaintiff claims that he was denied a meaningful opportunity 12 to be heard in violation of his due process rights. He also claims these hearings were meaningless 13 gestures in that the decision to retain had already been determined prior to the hearings. 14 By way of relief, plaintiff seeks declaratory relief, injunctive relief (to include his release 15 from the SHU), and damages. 16 II. Relevant Procedural Background 17 Plaintiff initiated this action on November 21, 2014, and filed a first amended complaint 18 (“FAC”) on January 23, 2015, before his original complaint was screened. (ECF Nos. 1, 8.) On 19 May 7, 2015, the Court screened the FAC and found it to state cognizable claims against some 20 defendants but not others. The Court directed Plaintiff to file an amended pleading or to notify the 21 court of his willingness to proceed on the FAC as screened. 22 On June 25, 2015, Plaintiff filed a second amended complaint. (ECF No. 14.) The Court 23 screened it on July 28, 2015 and found it to state cognizable claims against some defendants but 24 not others. (ECF No. 15.) The Court again directed Plaintiff to file an amended pleading or to notify 25 the court of his willingness to proceed on the second amended complaint as screened. 26 Plaintiff filed the third amended complaint on August 24, 2015. (ECF No. 16.) The Court 27 screened this pleading on October 15, 2015 and found it to state cognizable due process and equal 28 2 1 protection claims against the following Defendants: Beard, Castorena, Escobar, Lambert, 2 Mahoney, Cano, Kraay, Galaviz, Rousseau, Gipson, Taber, Jennings, Sanchez, Pina, Pacillas, 3 Lackovic, Smith, Kellogg, McGuire, Mayo, Mata, Holland, Prince, Chavez, Vasquez, Edgar, 4 Garcia, Mayfield, and Patterson. (ECF No. 18.) Service was ordered November 2, 2015. (ECF No. 5 22.) 6 Defendants appeared on January 6, 2016, by filing a motion to dismiss. (ECF No. 26.) On 7 June 21, 2016, the then-assigned magistrate judge issued findings and recommendations to deny 8 the motion to dismiss as to plaintiff’s due process claim and to grant it as to the equal protection 9 claim. (ECF No. 42.) 10 District Judge Anthony W. Ishii adopted the findings and recommendations in part on 11 September 16, 2016. (ECF No. 54.) Judge Ishii adopted the recommendation to dismiss the equal 12 protection claim but found that defendants were entitled to qualified immunity as to some of the 13 conduct underlying the due process claim, which is premised on the periodic reviews of plaintiff’s 14 placement in the SHU due to his gang validation. Specifically, the district judge concluded that 15 defendants were entitled to qualified immunity for conduct pre-dating Brown v. Oregon Dept. of 16 Corr., 751 F.3d 983 (9th Cir. Apr. 29, 2014), but not as to conduct post-dating that decision. (ECF 17 No. 54.) 18 On October 18, 2016, the then-assigned magistrate judge granted plaintiff’s request to file 19 a fourth complaint. (ECF No. 60.) In this supplemental complaint, plaintiff added allegations 20 regarding two additional periodic reviews of his SHU placement occurring after he initiated this 21 action. (ECF No. 53.) 22 23 Plaintiff’s request to file a fifth amended complaint was denied on December 26, 2017. (ECF Nos. 74, 89.) 24 The defendants filed their answer on January 12, 2017, and the instant motion for summary 25 judgment was filed on November 30, 2017. (ECF Nos. 69, 85.) Plaintiff has filed two oppositions, 26 the first on April 16, 2018, and the second on May 7, 2018. (ECF Nos. 101, 105.) He has also filed 27 a request to deem the second opposition timely filed. (ECF No. 106.) The defendants filed their 28 3 1 reply on April 20, 2018. (ECF No. 103.) This motion is fully briefed and ready for disposition. 2 III. 3 Legal Standards Summary judgment is appropriate when it is demonstrated that the standard set forth in 4 Federal Rule of Civil Procedure 56 is met. “The court shall grant summary judgment if the 5 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 6 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 7 8 9 10 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,” which it believes demonstrate the absence of a genuine issue of material fact. 11 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 12 56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving party need 13 only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing 14 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 15 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory 16 committee’s notes to 2010 amendments (recognizing that “a party who does not have the trial 17 burden of production may rely on a showing that a party who does have the trial burden cannot 18 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment 19 should be entered, after adequate time for discovery and upon motion, against a party who fails to 20 make a showing sufficient to establish the existence of an element essential to that party’s case, 21 and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. 22 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case 23 necessarily renders all other facts immaterial.” Id. at 323. 24 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 25 the opposing party to establish that a genuine issue as to any material fact actually exists. See 26 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 27 establish the existence of such a factual dispute, the opposing party may not rely upon the 28 4 1 allegations or denials of its pleadings, but is required to tender evidence of specific facts in the 2 form of affidavits, and/or admissible discovery material in support of its contention that such a 3 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party 4 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 5 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 6 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 7 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return 8 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 9 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 10 1564, 1575 (9th Cir. 1990). 11 In the endeavor to establish the existence of a factual dispute, the opposing party need not 12 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 13 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 14 trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce 15 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 16 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 17 amendments). 18 In resolving a summary judgment motion, the court examines the pleadings, depositions, 19 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 20 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 21 255. All reasonable inferences that may be drawn from the facts placed before the court must be 22 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587; Walls v. Central Costa 23 County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). Nevertheless, inferences are not 24 drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from 25 which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 26 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a 27 genuine issue, the opposing party “must do more than simply show that there is some 28 5 1 metaphysical doubt as to the material facts . . . Where the record taken as a whole could 2 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” 3 Matsushita, 475 U.S. at 586 (citation omitted). 4 By contemporaneous notice provided on November 30, 2017 (ECF No. 85-1), plaintiff 5 was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal 6 Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); 7 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). 8 IV. Undisputed Facts 9 Plaintiff, an inmate in the custody of the California Department of Corrections and 10 Rehabilitation, was validated as a Northern Structure prison gang member in February 2010. Fourth 11 Am. Compl. § IV; Pl.’s Dep. at 16:18-22 (Decl. of Lucas L. Hennes in Supp. of Defs.’ Mot. Summ. 12 J. (ECF No. 85-5), Ex. A). Because of the gang validation, he was assigned to serve an 13 indeterminate term in the SHU at California State Prison – Corcoran (“CSP-Cor”) on July 23, 14 2012.1 Fourth Am. Compl. at 4, 8. Validated prison gang members are serious threats to the safety 15 of the institution. Pl.’s Dep. at 20:23—21:5. 16 Plaintiff’s gang validation is reviewed approximately every 180 days and annually. Fourth 17 Am. Compl. at 8:21-23. This action is premised on several ICC hearings occurring between June 18 2014 and March 2016. 19 The first ICC hearing was held on June 24, 2014, with defendants Prince, Chavez, Galaviz, 20 Holland, Jennings, and Pina in attendance. Pl.’s Dep. at 22:6-17. At this hearing, the defendants 21 followed CDCR policy in concluding that plaintiff’s gang validation should continue based on 22 documented gang activity less than six years old. Pl.’s Dep. at 22:6-23:10, 46:6-13; Hennes Decl., 23 Ex. B. 24 On October 6, 2014, defendant Castorena endorsed plaintiff to serve an indeterminate SHU 25 term based on the June 24, 2014, ICC hearing. Pl.’s Dep. at 25:19—26:8; Decl. of B. Castorena in 26 Supp. of Defs.’ Mot. Summ. J. (ECF No. 85-4) Ex. A. Castorena, at the time, was employed at 27 28 Plaintiff’s challenge to the gang validation process and the decision to place him in administrative segregation were asserted in a separate action, Valdez v. Cate, 2:12-cv-1352-JAM-CMK. 1 6 1 CSP-Cor as a Classification Staff Representative (“CSR”). Castorena Decl. ¶ 2. When a CSR 2 endorses an inmate for retention in the SHU, as Castorena did here, the CSR reviews the 3 documentation used by the ICC to ensure that the inmate received all process that was due. Id. ¶ 4. 4 If the documentation cited by an ICC to retain the inmate in the SHU is accurate and all procedural 5 requirements were met, the CSR does not have discretion to reverse or alter the decision. Id. 6 The second ICC hearing was held on January 7, 2015, with defendants Vasquez, Holland, 7 Garcia, Edgar, Patterson, and Maxfield in attendance. Pl.’s Dep. at 27:3-9; Fourth Am. Compl. at 8 16. At this hearing, the defendants followed CDCR policy in concluding that plaintiff’s gang 9 validation should continue and he should be retained in SHU based on documented gang activity 10 less than six years old. Pl.’s Dep. at 27:14-20, 53:20-25; Hennes Decl., Ex. B. 11 The third ICC hearing was held on July 14, 2015, with defendants Davey, Holland, 12 Patterson, and Oliveira in attendance. Pl.’s Dep. at 29:7-21; Fourth Am. Compl. at 16-17. At this 13 hearing, the defendants followed CDCR policy in concluding that plaintiff’s gang validation should 14 continue and he should be retained in SHU based on documented gang activity less than six years 15 old. Pl.’s Dep. at 29:7—30:9, 56:21—57:5; Hennes Decl., Ex. B. 16 The fourth ICC hearing was held on March 3, 2016, with defendants Perez, Campbell, 17 Wilson, and Lester in attendance. Pl.’s Dep. at 31:23-32:9; Fourth Am. Compl. at 17. At this 18 hearing, the defendants followed CDCR policy in concluding that plaintiff’s gang validation should 19 continue and that he should be retained in SHU based on documented gang activity less than six 20 years old. Pl.’s Dep. at 31:23—33:1, 60:2-7; Hennes Decl., Ex. B. 21 On April 8, 2016, plaintiff attended a specialized ICC hearing regarding his placement in 22 SHU. Pl.’s Dep. at 34:19—35:6. The ICC released plaintiff from SHU and transferred him to a 23 general population yard. 24 Plaintiff received adequate notice prior to each of these hearings. Fourth Am. Compl. at 14, 25 16-18. Additionally, each defendant properly reviewed plaintiff’s case factors during the ICC 26 hearings. Pl.’s Dep. at 24:2-13, 28:24—29:2, 31:11-14, 37:4-9, 61:11-18. Lastly, plaintiff was 27 provided an opportunity to state on the record that he disagreed with the decision to retain him in 28 7 1 the SHU. Pl.’s Dep. at 23:3-10 (the June 24, 2014, ICC hearing), 28:12-17 (the January 7, 2015, 2 ICC hearing), 30:10-11 (the July 14, 2015, ICC hearing); 32:19-24 (the March 3, 2016, ICC 3 hearing). 4 Plaintiff was not, however, “allowed to offer any legitimate rebuttal.” Pl.’s Dep. at 28:12- 5 20. He was “simply asked if [he] agreed [with the decision to retain him] and [the defendants] 6 wouldn’t consider any arguments that [he] would try to make.” Id. This was because plaintiff was 7 already deemed “validated, and any of [his] disputes would not be heard.” Id. at 23:6-13. 8 V. Analysis 9 Defendants move for summary judgment and argue Plaintiff received all the process to 10 which he was entitled at the semi-yearly hearings: an informal non-adversary hearing, a reason for 11 the segregation, and an opportunity to “voice his disagreement with the Defendants’ decision to 12 retain him in SHU.” Defs.’ Mot. Summ. J. at 6. In addition, there was some evidence to support the 13 defendants’ decision. 14 Plaintiff counters that he was not afforded an opportunity to offer a rebuttal at the 15 disciplinary hearings to the effect that any cited gang-related conduct predated 2009 and that his 16 record has been “immaculate” since then, negating any claim that plaintiff posed a current threat to 17 institutional staff, himself, or any other inmates.2 Pl.’s Dep. at 23:11-18; 25:2-6; 28:9-20; 30:7-19. 18 He contends that his mere expression of disapproval with the ICC’s decision to retain him in the 19 SHU was insufficient to meet due process requirements. He also argues that, even if he was 20 provided an opportunity to be heard, the ICC hearings were “meaningless gestures” because they 21 were extremely brief and would have resulted in the same decision to retain him regardless “due to 22 policy.” 23 The Due Process Clause of the Fourteenth Amendment protects prisoners from being 24 2 25 26 27 Plaintiff again claims that he was entitled to heightened procedural protections as set forth in Wolff, including a hearing with an opportunity to present witnesses and documentary evidence and a staff or inmate assistance to aid in collecting and presenting evidence. As plaintiff was previously informed, his placement in the SHU does not constitute an “atypical and significant hardship” on him requiring heightened procedural protections under Wolff. See Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997) (“California's policy of assigning suspected gang affiliates to the Security Housing Unit is not a disciplinary measure, but an administrative strategy designed to preserve order in the prison and protect the safety of all inmates.”). 28 8 1 deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 2 556 (1974). The procedural guarantees of the Fifth and Fourteenth Amendments’ Due Process 3 Clauses apply only when a constitutionally protected liberty or property interest is at stake. See 4 Ingraham v. Wright, 430 U.S. 651, 672-73 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 5 (1972); Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003); Neal v. Shimoda, 131 F.3d 818, 827 6 (9th Cir. 1997); Erickson v. United States, 67 F.3d 858, 861 (9th Cir. 1995); Schroeder v. 7 McDonald, 55 F.3d 454, 462 (9th Cir. 1995); Tellis v. Godinez, 5 F.3d 1314, 1316 (9th Cir. 1993). 8 Liberty interests can arise both from the Constitution and from state law. See Wilkinson v. 9 Austin, 545 U.S. 209, 221 (2005); Hewitt v. Helms, 459 U.S. 460, 466 (1983). The Due Process 10 Clause itself does not confer on inmates a liberty interest in avoiding “more adverse conditions of 11 confinement.” Id. It also does not confer on inmates a liberty interest in being confined in the 12 general prison population instead of administrative segregation. See Hewitt, 459 U.S. at 466-68; 13 see also May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (convicted inmate's due process claim 14 fails because he has no liberty interest in freedom from state action taken within sentence imposed 15 and administrative segregation falls within the terms of confinement ordinarily contemplated by a 16 sentence) (quotations omitted); Resnick v. Hayse, 213 F.3d 443, 447 (9th Cir. 2000) (plaintiff's 17 placement and retention in the SHU was within range of confinement normally expected by inmates 18 in relation to ordinary incidents of prison life and, therefore, plaintiff had no protected liberty 19 interest in being free from confinement in the SHU) (quotations omitted). 20 With respect to liberty interests arising from state law, the existence of a liberty interest 21 created by prison regulations is determined by focusing on the nature of the deprivation. Sandin, 22 515 U.S. at 481-84. Liberty interests created by prison regulations are limited to freedom from 23 restraint which “imposes atypical and significant hardship on the inmate in relation to the ordinary 24 incidents of prison life.” Id. at 484; see also Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007); 25 Jackson, 353 F.3d at 755; Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003); Ramirez v. 26 Galaza, 334 F.3d 850, 860 (9th Cir. 2003). When conducting the Sandin inquiry, Courts should 27 look to Eighth Amendment standards as well as the prisoners’ conditions of confinement, the 28 9 1 duration of the sanction, and whether the sanctions will affect the length of the prisoners’ sentence. 2 See Serrano, 345 F.3d at 1078; Ramirez, 334 F.3d at 861; Keenan v. Hall, 83 F.3d 1083, 1089 (9th 3 Cir. 1996). The placement of an inmate in the SHU indeterminately may amount to a deprivation 4 of a liberty interest of “real substance” within the meaning of Sandin. See Wilkinson, 545 U.S. at 5 224. The “atypicality” prong of the analysis requires not merely an empirical comparison, but turns 6 on the importance of the right taken away from the prisoner. See Carlo v. City of Chino, 105 F.3d 7 493, 499 (9th Cir. 1997). A plaintiff must assert a “dramatic departure” from the standard conditions 8 of confinement before due process concerns are implicated. Sandin, 515 U.S. at 485–86; see also 9 Keenan, 83 F.3d at 1088–89. “Some conditions of confinement may establish an Eighth 10 Amendment violation ‘in combination’ when each would not do so alone.” Chappell v. Mandeville 11 706 F.3d 1052, 1061 (9th Cir. 2013) (citing Wilson, 501 U.S. at 304). 12 To determine if the plaintiff's removal from general population constitutes an “atypical and 13 significant hardship,” the Court examines: (1) the extent of difference between segregation and 14 general population; (2) the duration and intensity of the conditions confinement; and (3) whether 15 the sanction extends the length of the prisoner's sentence. Cepero, 2015 WL 1308690 at *14; see 16 also Sandin, 515 U.S. at 486–87. “Typically, administrative segregation in and of itself does not 17 implicate a protected liberty interest.” Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir.2003). 18 Furthermore, “the decision to hold an inmate in administrative segregation imposes few procedural 19 burdens on prison officials.” Cepero, 2015 WL 1308690 at *14. A prison official provides adequate 20 due process by “holding an informal, non-adversarial evidentiary hearing within a reasonable time 21 after administrative segregation begins.” Id. 22 The assignment of validated gang members to the SHU is an administrative measure rather 23 than a disciplinary measure, and is “essentially a matter of administrative segregation.” Bruce v. 24 Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (quoting Munoz v. Rowland, 104 F.3d 1096, 1098 (9th 25 Cir. 1997)). As such, plaintiff is entitled to the minimal procedural protections set forth in 26 Toussaint, such as notice, an opportunity to be heard, and periodic review. Bruce, 351 F.3d at 1287 27 (citing Toussaint, 801 F.2d at 1100). Due process also requires that there be an evidentiary basis 28 10 1 for the prison officials’ decision to place an inmate in segregation for administrative reasons. 2 Superintendent v. Hill, 472 U.S. 445, 455 (1985); Toussaint, 801 F.2d at 1104-05. This standard is 3 met if there is ‘some evidence’ from which the conclusion of the administrative tribunal could be 4 deduced. Id. at 1105. The standard is only “minimally stringent” and the relevant inquiry is whether 5 there is any evidence in the record that could support the conclusion reached by the prison decision- 6 makers. Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). The “some evidence” standard applies 7 to an inmate’s placement in the SHU for gang affiliation. See Bruce, 351 F.3d at 1287-88. 8 When a prisoner is placed in administrative segregation, prison officials must, within a 9 reasonable time after the prisoner’s placement, conduct an informal, non-adversary review of the 10 evidence justifying the decision to segregate the prisoner. See Hewitt, 459 U.S. at 476, abrogated 11 in part on other grounds by Sandin, 515 U.S. 472 (1995); Mendoza v. Blodgett, 960 F.2d 1425, 12 1430 (9th Cir. 1992), abrogated in part on other grounds by Sandin, 515 U.S. 472; Toussaint, 801 13 F.2d at 1100, abrogated in part on other grounds by Sandin, 515 U.S. 472. The Supreme Court has 14 stated that five days is a reasonable time for the post-placement review. See Hewitt, 459 U.S. at 15 477. Before the review, the prisoner must receive some notice of the charges and be given an 16 opportunity to respond to the charges. See id. at 476; Mendoza, 960 F.2d at 1430-31; Toussaint, 17 801 F.2d at 1100. The prisoner, however, is not entitled to “detailed written notice of charges, 18 representation of counsel or counsel-substitute, an opportunity to present witnesses, or a written 19 decision describing the reasons for placing the prisoner in administrative segregation.” Toussaint, 20 801 F.2d at 1100-01 (citations omitted). 21 After the prisoner has been placed in administrative segregation, prison officials must 22 periodically review the initial placement. See Hewitt, 459 U.S. at 477 n.9; Toussaint, 801 F.2d at 23 1101. Annual review of the placement is insufficient. See Toussaint, 801 F.2d at 1101. However, 24 the prisoner has no right to be present at the periodic review, nor does he have a right to submit 25 additional statements or evidence. See Hewitt, 459 U.S. at 476, 477 n.9 (“This review will not 26 necessarily require that prison officials permit the submission of any additional evidence or 27 statements.”); Edmonson v. Coughlin, 21 F. Supp. 2d 242, 253 (W.D.N.Y. 1998). Per Hewitt, a 28 11 1 decision to continue an inmate in administrative segregation could be based on the same facts and 2 considerations that compelled the initial transfer. Hewitt, 459 U.S. at 476, 477 n.9. 3 The parties do not dispute that plaintiff received notice and an informal non-adversary 4 hearing before each decision to retain him in the SHU. They also do not dispute that the ICC 5 members reviewed plaintiff’s file, complied with prison regulations, and granted plaintiff an 6 opportunity to express his disagreement with the committee’s decision to retain him in the SHU. 7 The only issue in dispute here is whether this process, including the limited opportunity for plaintiff 8 to voice his dissent, violated plaintiff’s due process rights. Defendants contend that it does not, 9 arguing that any statement beyond plaintiff’s disagreement amounts to “additional evidence or 10 statements,” which Hewitt noted was unnecessary. Plaintiff argues that this process falls short of 11 his rights, particularly in light of his nearly four-year confinement. 12 In Brown, the Ninth Circuit held for the first time that “a lengthy confinement without 13 meaningful review may constitute atypical and significant hardship.” 751 F.3d at 989-90. Plaintiff 14 relies on this holding and the length of his confinement to argue that he was entitled to more due 15 process protection than he received. He also argues that even if he was given more process, it would 16 have been a “meaningless gesture” due to prison policy directing that he be retained in the SHU for 17 six years due to his gang status. 18 Assuming as true as plaintiff alleges that the living conditions in the SHU were generally 19 more restrictive than the general population, plaintiff has not met his burden to show that a genuine 20 issue of material fact exists as to whether his placement in the SHU differs in such degree or 21 duration as compared with the “ordinary incidents of prison life” to constitute protected liberty 22 interests under the Due Process Clause. See Sandin, 515 U.S. at 484. In Brown, the inmate was 23 placed in disciplinary, intensive management unit for twenty-seven consecutive months, consisting 24 of solitary confinement twenty-three hours a day with strict limitations on time outdoors and 25 restrictions on visitor access, law library access, group religious worship, education and vocational 26 opportunities, telephone usage, and access to personal property. Plaintiff here has presented no 27 evidence regarding the conditions he faced in the SHU, let alone conditions that might be akin to 28 12 1 those described in Wilkinson and Brown. Moreover, as noted above, for a non-disciplinary 2 placement, Hewitt demonstrates that the inmate need not be given the opportunity to present 3 witnesses or to make a statement and continued placement may be based upon the original evidence. 4 Hewitt, 459 U.S. at 476, 477 n.9. 5 It is also true that plaintiff was confined in the SHU for a lengthy period and that “the 6 duration of the condition” is a factor that the court must consider in determining whether plaintiff 7 was entitled to additional due process protection. In Brown, however, the inmate was subjected to 8 solitary confinement for “a fixed and irreducible period of confinement” of twenty-seven months. 9 Plaintiff’s confinement was neither fixed nor irreducible, as evidenced by the fact that he was 10 released two years before the “mandatory” six-year minimum segregation for gang validated 11 inmates that Plaintiff argues exists. His early-release also undermines his argument that the hearings 12 were “meaningless gestures.” 13 For these reasons, the Court concludes that plaintiff received all the due process that he was 14 due for his continued non-disciplinary retention in the SHU based on his gang status. Defendants’ 15 motion for summary judgment should therefore be granted. Thus, the Court declines to consider 16 the defendants’ qualified immunity argument.3 17 V. Based on the foregoing, the undersigned ORDERS that plaintiff’s motion to have his 18 19 opposition deemed timely filed (ECF No. 105) is GRANTED; and The court RECOMMENDS that defendants’ motion for summary judgment (ECF No. 85) 20 21 Conclusion be GRANTED and this action be closed. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, plaintiff may file written objections 25 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 26 27 28 3 If considered, however, the Court would recommend that the defendants received the protections of qualified immunity because Brown does not speak to the process due an inmate retained in a non-disciplinary housing assignment based upon gang affiliation. 13 1 and Recommendations.” Any response to the objections shall be filed and served within fourteen 2 days after service of the objections. Plaintiff is advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 4 F.2d 1153 (9th Cir. 1991). 5 6 7 IT IS SO ORDERED. Dated: August 27, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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