(HC) Dawkins v. McGrath, No. 2:2003cv01643 - Document 32 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/17/09recommending that petitioner's application for a writ of habeas corpus be denied and the Clerk be directed to close the case. Referred to Judge Frank C. Damrell. Objections due within 21 days.(Plummer, M)
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(HC) Dawkins v. McGrath Doc. 32 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DOUGLAS LEE DAWKINS, 11 12 13 14 Petitioner, vs. JOE McGRATH, Warden, Respondent. FINDINGS & RECOMMENDATIONS / 15 16 No. CIV S-03-1643 FCD EFB P Petitioner is a state prisoner proceeding in propria persona with an application for a writ 17 of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner does not challenge his underlying 18 conviction. Rather, he claims that his rights to due process and equal protection were violated 19 when he was identified, allegedly improperly, as a member of the Black Guerrilla Family (BGF) 20 prison gang, placed in a Security Housing Unit (SHU), and deprived of the ability to earn good 21 time credits and prison privileges. Upon careful consideration of the record and the applicable 22 law, the undersigned recommends that petitioner’s application for habeas corpus relief be denied. 23 I. Background 24 A. Proceedings in this Court 25 On July 31, 2003, petitioner filed this action in the United States District Court for the 26 Northern District of California on the form for filing petitions for a writ of habeas corpus. He 1 Dockets.Justia.com 1 alleged five claims: (1) Correctional Lieutenant J. Peterson violated his due process rights when 2 he: (a) participated in the validation of petitioner as a BGF gang member without allowing 3 petitioner “a hearing to challenge the gang allegation;” (b) altered the documentation underlying 4 petitioner’s gang validation; and (c) improperly participated in petitioner’s administrative appeal 5 of his gang validation; (2) Correctional Caption R. Johnson violated his due process rights when 6 he improperly participated in petitioner’s administrative appeal of his gang validation; (3) 7 correctional officers T. Felk and T. Kopec violated his due process rights when Officer Kopec 8 improperly participated in petitioner’s administrative appeal of his gang validation and refused to 9 call a witness requested by petitioner at the hearing on the administrative appeal; (4) petitioner’s 10 rights to due process and equal protection were violated when he was improperly identified as a 11 BGF gang member, placed in a Security Housing Unit (SHU), and deprived of the ability to earn 12 good time credits and prison privileges; and (5) the California courts violated his right to due 13 process by denying his habeas petitions in an untimely manner.1 On August 4, 2003, the U.S. 14 District Court for the Northern District of California construed petitioner’s petition as a civil 15 rights action pursuant to 42 U.S.C. § 1983 and transferred the case to this court. 16 On August 13, 2003, petitioner filed a request that his recently transferred civil rights 17 action be “consolidated” with another civil rights action pending in this court, entitled Dawkins 18 v. Peterson et al., CIV S-02-2038 LKK KJM P. Alternatively, petitioner requested that he be 19 permitted to pursue only his fourth claim in an application for a writ of habeas corpus. Petitioner 20 explained that claims 1, 2, 3, and 5 contained in his recently transferred petition were “the same” 21 as the claims raised in case No. CIV S-02-2038 LKK KJM P. By order dated September 24, 22 2003, the magistrate judge previously assigned to this case determined that consolidation was not 23 appropriate but authorized the continuance of this matter solely as a habeas corpus action 24 because petitioner was challenging a loss of good time credits. 25 1 26 See Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.l (N.D. Cal. 1978) (judicial notice may be taken of court records), aff’d, 645 F.2d 699 (9th Cir. 1981). 2 1 On December 1, 2003, before respondent had filed an answer to the instant habeas 2 petition, petitioner filed a traverse, in which he addressed all five of the claims contained in his 3 original petition. On December 24, 2003, respondent filed an answer in which he addressed only 4 claim 4 contained in the petition, noting that petitioner had requested to proceed with a habeas 5 action on claim 4 only. On January 12, 2004, pursuant to the court’s authorization, petitioner 6 filed a supplemental traverse in which he argues that he was improperly validated as a prison 7 gang member in violation of his rights to due process and equal protection, as alleged in claim 4. 8 On September 8, 2008, petitioner filed an ex parte request for case status, in which he 9 informed the court that he paroled from prison on December 16, 2006, but was returned for a 10 parole violation in May, 2008. 11 B. Petitioner’s Claims 12 As described above, in his August 13, 2003 request to consolidate, petitioner conceded 13 that claims 1, 2, 3, and 5 contained in the instant petition were identical to the claims contained 14 in case No. CIV S-02-2308 LKK KJM P, and he requested permission to proceed in his habeas 15 action with claim 4 only.2 The court construes the August 13, 2003 filing as a voluntary 16 dismissal of all claims except the request for habeas relief asserted in claim 4. Accordingly, the 17 court addresses the only remaining claim, claim 4. 18 Petitioner claims that his rights to due process and equal protection were violated when 19 he was validated as a prison gang member and placed in the SHU and denied the opportunity to 20 earn good time credits. Petitioner claims that on September 20, 2001, he appeared before a 21 classification committee and was advised that he had been confirmed (validated) as a prison 22 gang member and would be transferred to the SHU, thereby losing the right to earn one good 23 time credit for each day served. Pet. at 18. He alleges that this action forced him to forfeit credit 24 25 26 2 A review of the record confirms that claims 1, 2, 3, and 5 contained in the instant petition were ruled on in case No. CIV S-02-2038 LKK KJM P. See January 31, 2007 order in case No. CIV S-02-2038 LKK KJM P (addressing defendants’ motion for summary judgment). 3 1 that he would otherwise have earned and changed his parole date from August 23, 2005 to 2 December 26, 2006. Id. Petitioner also claims that he was denied the right to participate in 3 prison programs even though he had not been found guilty of a serious disciplinary violation. 4 Petitioner states that he requested permission to present argument and witnesses to prove that he 5 was not a gang member, but his request was denied. Id. at 19. He further alleges that on 6 October 18, 2001, he appeared before another classification committee, where he told the 7 committee members that correctional Lieutenant Peterson had altered the documentation 8 underlying his gang validation and had planted evidence in his cell. Id. at 20. Petitioner also 9 asked to view the evidence underlying his gang validation. Id. The committee rejected 10 11 petitioner’s claims and requests. Id. at 20-21. In his supplemental traverse, petitioner claims that the prison failed to comply with 12 appropriate regulations and procedures and that he was improperly validated as a gang member. 13 January 12, 2004 Supplemental Traverse at 3-4. He states that prisoners who have been found to 14 be affiliated with other gangs do not suffer the same treatment that he received unless they have 15 been found guilty of a serious rules violation after being afforded “procedural and substantive 16 due process protections established in Wolff v. McDonnell, 418 U.S. 539.” Id. at 5-6. Petitioner 17 claims that the California Code of Regulations “affords all other prisoners housed in general 18 population the administrative/due process right to be punished ‘only’ for actually, individual, 19 serious misconduct.” Id. at 7. 20 Petitioner raised these claims in a petition for writ of habeas corpus filed in the 21 Sacramento County Superior Court. Response to April 22, 2008 Order, filed on April 29, 2008, 22 at page 4 of 8. That court transferred the matter to the Lassen County Superior Court, which 23 denied petitioner’s claims with the following reasoning: 24 25 26 The petitioner, in the custody of the California Department of Corrections (CDC) at Pelican Bay State Prison, complains of his validation as a prison gang member while housed at High Desert State Prison, and seeks a lengthy list of remedies, including reversal of the validation of his gang member status and extensive 4 revision of CDC rules and regulations relating to housing of such gang members. 1 2 Thorough review and consideration of the petition and its exhibits demonstrates no violation of any CDC rule or regulation in the course of the petitioner’s validation as a prison gang member; the rules and regulations themselves do not violate constitutional due process standards. The credit forfeiture complained of is not a forfeiture; no previously-earned credit has been taken from petitioner. The 2190-day Special Housing Unit (SHU) term complained of is equally illusory: petitioner’s mandatory SHU placement must be reviewed each 180 days (15 CCR 3341.5(c)(A)(2) and it is within petitioner’s power to shorten his stay therein. 3 4 5 6 7 8 The court does not have a right to judge the intrinsic value of the evidence adduced before an administrative board, the court’s power being confined to determining whether there was substantial evidence to support its findings (Sultan Turkish Bath, Inc. v. Police Commissioners (1959) 169 Cal.App.2nd 188; see also Superintendent v. Hill (1985) 472 U.S. 445); Exhibits “B” (H?) and “C” provide that support. The courts accord prison administrators wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve order and discipline and to maintain institutional security. In re Wilson (1988) 202 Cal.App.3rd 661; People v. Garcia (1978) 78 Cal.App.3rd 247.) 9 10 11 12 13 14 15 Id. Petitioner subsequently raised his claims in a petition for writ of habeas corpus filed in the 16 California Supreme Court. Id. at page 8 of 8. That petition was summarily denied by order 17 dated June 11, 2003. Id.3 18 19 20 21 22 23 24 25 26 3 Notwithstanding petitioner’s release from prison, this matter is not moot. A case is moot when it no longer presents a case or controversy. Spencer v. Kemna, 523 U.S. 1, 7 (1998). “[A federal action] should . . . be dismissed as moot when, by virtue of an intervening event, a [federal court] cannot grant any effectual relief whatever in favor of the [party seeking relief].” Calderon v. Moore, 518 U.S. 149, 150 (1996). A habeas petition which is otherwise moot may proceed if a petitioner can establish some concrete and continuing injury from the alleged harm – some “collateral consequence” that petitioner still suffers as a result of the government act he is challenging. Spencer, 523 U.S. at 7-8. In several published California cases decided under California’s Determinate Sentencing Law, courts have reduced the term of a prisoner’s mandatory parole sentence by excess time spent in prison. See In re Ballard, 115 Cal.App.3d 647 (Cal. App. 1st Dist. 1981); In re Sosa, 102 Cal.App.3d 1002 (Cal. App. 2nd Dist. 1980); In re Kemper, 112 Cal.App.3d 434 (Cal. App. 1st Dist. 1980). California courts have also ordered awards of retroactive good time credit in situations where an inmate was willing to earn the credit at issue, but was prevented from doing so due to errors or omissions of prison administrators or due to no fault on the part of the inmate. See, e.g., In re Player, 146 5 1 C. General Background 2 California prisons consider prison gangs to be the most disruptive of any prison group to 3 the day-to-day management of a prison system, and have determined that gangs present a serious 4 threat to the safety and security of California prisons. Answer at 7, 9. In response to this 5 concern, an inmate gang investigator (IGI) for each institution works to identify gang members 6 or affiliates. Cal. Code Regs. tit. 15, § 3378(c). Before an inmate is identified as a gang member 7 or associate, the IGI must have three or more independent sources of information “indicative of 8 association with validated gang members or associates.” Id., § 3378(c)(4). Such information 9 may include a statement from another inmate, an inmate’s own admission, tattoos, written 10 materials, photographs, observation by staff, and information from other agencies. Id., 11 § 3378(c)(8). The regulations provide that the IGI unit can consider statements 12 from informants only if their information is independently corroborated or the informant is 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Cal.App.4th 813 (Cal. App. 4th Dist. 2007); In re Randolph, 215 Cal.App.3d 790 (Cal. App. 1st Dist. 1989); In re Carter, 199 Cal.App.3d 271 (Cal. App. 1st Dist. 1988); In re Reina, 171 Cal.App.3d 638 (Cal. App. 1st Dist. 1985). The rules of the California Department of Corrections and Rehabilitation (CDCR) allow for credit that is not earned to be applied to a sentence. See Cal. Code Regs. tit. 15, § 3043.2(c) (listing examples of circumstances beyond the inmate’s control which result in an inmate’s failure to work or participate in program activities that cannot be cause for denial or forfeiture of participation credit); Id., § 3043.5(f) (an inmate who is deemed completely unable to work due to on-the-job injury is allowed to receive a full award of work based good time credit). The above-cited cases and regulations all concern inmates who were given the initial opportunity to earn work credits, while petitioner’s ability to earn time credits was eliminated when he was validated as a gang member and housed in the SHU. However, “when constitutional rights have been violated, federal courts in habeas corpus proceeding have broad powers to fashion an appropriate remedy and dispose of matter as law and justice require,” Blanchard v. Brewer, 318 F. Supp. 28, 32 (S.D. Iowa 1969), aff’d, 429 F.2d 89, cert. denied, 401 U.S. 1002, and “if at the time the habeas petition is considered, justice requires relief for the applicant, a federal court possesses power to grant any form of relief necessary to satisfy the requirement of justice.” Levy v. Dillon, 415 F.2d 1263, 1265 (10th Cir. 1969); see also 28 U.S.C. § 2243. Taking into account the broad powers of a habeas court together with California law that has provided for both the reduction of the mandatory parole term by excess time spent in prison and the award of work credits not earned, this court finds that petitioner may be granted effective relief so long as he remains on parole. If petitioner prevailed on the merits by showing that he was denied the opportunity to earn credits in violation of federal laws or the Constitution, this court could grant relief in the form of retroactively awarding petitioner credits he should have earned. This constitutes a sufficient collateral consequence to defeat a finding of mootness. For these reasons, this matter was not rendered moot by petitioner’s release from prison. 6 1 otherwise known as reliable. Id., § 3321(b)(1). 2 Once the prison determines that an inmate is a member or associate of a prison gang, the 3 inmate is routinely transferred to administrative segregation and considered for placement in the 4 SHU. Answer at 9. The SHU is the prison’s method of dealing with inmates who commit 5 serious disciplinary violations or who become affiliated with a prison gang. Id.; Cal. Code Regs. 6 tit. 15, § 3341.5(c). When an IGI believes there is sufficient information to validate an inmate as 7 a gang member, he prepares a “validation package” for submission to the Special Services Unit 8 in Sacramento. Answer at 10. The inmate is then brought to the office of the IGI, told he is 9 suspected of being a gang affiliate, and provided with a copy of a form summarizing the 10 evidence that was relied upon to determine whether the inmate is a gang affiliate. Id. When the 11 evidence in the validation package includes information from a confidential informant, the 12 inmate is provided with a “Confidential Information Disclosure Form” which summarizes the 13 substance of the accusation without disclosing the informant’s identity. Id. 14 The inmate is given the opportunity to present his views to the IGI and to contest the 15 allegation that he is a gang affiliate, but is not allowed to present evidence, examine witnesses or 16 obtain assistance. Id. If the IGI decides to continue with the validation process after meeting 17 with the inmate, he submits the validation package to the Special Services Unit. Id. The Special 18 Services Unit will validate the inmate as a gang member or associate if the information in the 19 package appears to be in order. Id. 20 Once an inmate has been validated as a gang member and placed in the SHU, he must be 21 free of any gang activity for at least six years before he may be considered for release. Cal. Code 22 Regs. tit. 15, §§ 3341.5(c)(5) , 3378(e). However, if an inmate chooses to “debrief”—admit his 23 gang affiliation, identify other gang members, and reveal all he knows about gang structure–he 24 will be released from the SHU at the end of the debriefing process. Id., § 3378.1(d). 25 26 An inmate placed in the SHU receives periodic reviews, at intervals of 180 days, for consideration of release to general population. Cal. Code Regs. tit. 15, § 3341.5(c)(2)(A). 7 1 Plaintiff has received several classification hearings at which his gang status has been discussed. 2 Answer, Ex. G. However, the result of these hearings is that each time plaintiff is returned to the 3 SHU unless he debriefs. Id. 4 In 2001, plaintiff was a prisoner at High Desert State Prison. Pet. at 6. On August 17, 5 2001, defendant Peterson, a correctional lieutenant/institutional gang investigator, searched 6 plaintiff’s personal property and found two drawings and one tattoo pattern, each containing a 7 dragon by itself, or with a ball and chain or medieval weaponry, symbols associated with the 8 BGF. Answer, Ex. B. Peterson examined plaintiff’s central and confidential files and 9 determined that plaintiff, also known as Rasheed, met the criteria for validation as a member of 10 BGF. Id. He based this conclusion on the material found in plaintiff’s cell; a confidential 11 memorandum Peterson wrote on the day of the search; a confidential memorandum by M. 12 Townsend, dated July 7, 2000; a debriefing report dated December 20, 2000, in which plaintiff 13 was identified as a BGF member; and a confidential memorandum by August 17, 2001 by D. 14 Shaver. Id. These items were sent to the Special Services Unit in Sacramento as a gang 15 validation packet. Id. On September 10, 2001, Agent John Harrison of the Special Services Unit 16 reviewed the validation packet and validated plaintiff as a BGF member. Id. The memorandum 17 authored by D. Shaver did not meet the validation requirements and was not used as a basis for 18 validation. Id. 19 On September 14, 2001, correctional Sergeant R. Green handed petitioner an 20 administrative segregation placement order, which advised petitioner that he was being placed in 21 segregated housing as a result of the prison gang validation process. Pet. at 6. Petitioner advised 22 Sergeant Green that he had never been validated as a member of a prison gang, whereupon 23 Green handed petitioner a copy of the validation packet, which listed the information relied on to 24 validate petitioner as a member of the BGF. Id. at 6-7. 25 26 On or about September 20, 2001, plaintiff attended a meeting of the Institutional Classification Committee (ICC). Id. at 17; Answer, Ex. D. Plaintiff informed the committee that 8 1 he had not been afforded a hearing, nor had he been charged with a “serious rule violation.” Pet. 2 at 19. The committee gave plaintiff an indeterminate term in the Security Housing Unit (SHU) 3 and referred him for transfer to the SHU at Pelican Bay State Prison. Id. at 18. As a result of 4 petitioner’s placement in the SHU, his work status was reclassified from A1-A status to D-l 5 status. Id; Answer at 12. Because of that change in status, petitioner lost the opportunity to earn 6 491 days of good-time credit. Id. 7 II. Analysis 8 A. Standards for a Writ of Habeas Corpus 9 Federal habeas corpus relief is not available for any claim decided on the merits in state 10 court proceedings unless the state court’s adjudication of the claim: 11 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 12 13 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 14 15 16 28 U.S.C. § 2254(d). Under section 2254(d)(1), a state court decision is “contrary to” clearly established 17 United States Supreme Court precedents “if it ‘applies a rule that contradicts the governing law 18 set forth in [Supreme Court] cases’, or if it ‘confronts a set of facts that are materially 19 indistinguishable from a decision’” of the Supreme Court and nevertheless arrives at a different 20 result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 21 (2000)). 22 Under the “unreasonable application” clause of section 2254(d)(1), a federal habeas 23 court may grant the writ if the state court identifies the correct governing legal principle from the 24 Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s 25 case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ simply because 26 that court concludes in its independent judgment that the relevant state-court decision applied 9 1 clearly established federal law erroneously or incorrectly. Rather, that application must also be 2 unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is “not 3 enough that a federal habeas court, in its independent review of the legal question, is left with a 4 ‘firm conviction’ that the state court was ‘erroneous.’”) 5 The court looks to the last reasoned state court decision as the basis for the state court 6 judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a 7 decision on the merits but provides no reasoning to support its conclusion, a federal 8 habeas court independently reviews the record to determine whether habeas corpus relief is 9 available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). Here, the 10 October 16, 2002 decision of the Lassen County Superior Court denying petitioner’s state habeas 11 petition is the last reasoned decision on petitioner’s due process and equal protection claims. 12 Therefore, this court must determine whether the Superior Court’s decision is contrary to or an 13 unreasonable application of Supreme Court precedent. 14 15 B. Applicable Law and Analysis 1. Due Process 16 The Due Process Clause of the Fourteenth Amendment protects persons against 17 deprivations of life, liberty or property. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Those 18 who seek to invoke the procedural protections of the Due Process Clause must establish that one 19 of these interests is at stake. Id. “A liberty interest may arise from the Constitution itself . . . , or 20 it may arise from an expectation or interest created by state laws or policies.” Id. 21 The Supreme Court has held that “the Constitution does not give rise to a liberty interest 22 in avoiding transfer to more adverse conditions of confinement.” Id. at 222 (citing Meachum v. 23 Fano, 427 U.S. 215, 225 (1976)). However, the Court also has held that “a liberty interest in 24 avoiding particular conditions of confinement may arise from state policies or regulations, 25 subject to the important limitations set forth in Sandin v. Conner, 515 U.S. 472 [ ] (1995).” Id. 26 Such interests generally are limited to “freedom from restraint which. . . imposes atypical and 10 1 significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 2 515 U.S. at 484. 3 In Sandin, the Supreme Court found no liberty interest protecting against a thirty day 4 assignment to segregated confinement because it did not “present a dramatic departure from 5 the basic conditions of [the inmate’s] sentence.” Sandin, 515 U.S. at 485; cf. Cato v. Rushen, 6 824 F.2d 703, 705 (9th Cir. 1987) (initial confinement in administrative segregation on the basis 7 of little, even unsubstantiated information, does not create objectionable condition). 8 9 In Wilkinson, the Supreme Court addressed whether Ohio prisoners had a liberty interest protected by the Fourteenth Amendment in not being assigned to the state’s 10 “supermax” prison. 545 U.S. at 222-24. The Court found that because the 11 following conditions imposed “atypical and significant hardship . . . in relation to the ordinary 12 incidents of prison life,” Ohio prisoners did have such a liberty interest: 13 For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30-day placement in Sandin, placement at OSP is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration. [Cite omitted.] While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. 14 15 16 17 18 19 20 21 22 Id. Petitioner claims that his right to due process was violated in connection with his 23 placement in the SHU and resultant loss of the right to earn good time credits. Following 24 Sandin, a number of Circuit Courts have held that there is no liberty interest, and therefore no 25 due process protection, in the mere opportunity to earn good time credits. See Abed v. 26 Armstrong, 209 F.3d 63, 66-67 (2d Cir. 2000) (although inmates have a liberty interest in good 11 1 time credit they have already earned, no such interest has been recognized in the opportunity to 2 earn good time credit where prison officials have discretion to determine whether an inmate or 3 class of inmates is eligible to earn good time credit); Antonelli v. Sheahan, 81 F.3d 1422, 1431 4 (7th Cir. 1996) (convicted prisoner with no access to good time credit program because he was 5 incarcerated in county jail had no constitutional interest in the opportunity to earn good time 6 credit); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) (applying Sandin and holding that the 7 loss of the opportunity to earn gain time is not a constitutionally protected liberty interest). 8 However, the Tenth Circuit has held that a liberty interest is implicated when a disciplinary 9 finding automatically, mandatorily reduces an inmate’s credit earning status. Wilson v. Jones, 10 11 430 F.3d 1113, 1121 (10th Cir. 2005), cert. denied, 549 U.S. 943 (2006). If petitioner has no liberty interest in the opportunity to earn good-time credits, his due 12 process claim must fail. Even assuming arguendo that plaintiff has a liberty interest in not being 13 placed in the SHU for an indeterminate term, this court concludes that he received all the process 14 that was due before being placed and later retained in the SHU. 15 This court rejects petitioner’s argument that he was entitled to the procedures outlined in 16 Wolff v. McDonnell.4 The process constitutionally due to an inmate placed in segregation 17 depends on whether the placement is disciplinary or administrative. Toussaint v. McCarthy, 801 18 F.2d 1080, 1099 (9th Cir. 1986). In Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003), the U.S. 19 Court of Appeals for the Ninth Circuit determined that California’s policy of placing suspected 20 gang members in segregation is an administrative decision, undertaken to preserve order in the 21 prison. When an inmate is placed in segregation for administrative purposes, due process 22 23 24 25 26 4 Wolff described the procedural protections to which inmates subjected to disciplinary action are entitled. For instance, in the disciplinary context, a prisoner is entitled to advance written notice of the charge against him, a written statement of the evidence relied upon by prison officials and the reasons for any disciplinary action taken, and a hearing at which he may call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. 418 U.S. at 563-69. See also Hill, 472 U.S. at 455-56. 12 1 requires only the following procedures: 2 6 Prison officials must hold an informal nonadversary hearing within a reasonable time after the prisoner is segregated. The prison officials must inform the prisoner of the charges against the prisoner or their reasons for considering segregation. Prison officials must allow the prisoner to present his views. . . . [D]ue process [ ] 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. 7 Toussaint, 801 F.2d at 1100-01 (footnote omitted). In other words, petitioner was entitled to the 8 minimal procedural protections of adequate notice, an opportunity to be heard, and periodic 9 review. Bruce, 351 F.3d at 1287. In addition to these minimal protections, there must be “some 10 evidence” supporting the decision to place a prisoner in segregated housing. Id. (citing Hill, 472 11 U.S. at 454). 3 4 5 12 The California Superior Court concluded that there was no violation of California law 13 during the course of petitioner’s validation as a prison gang member, and also concluded that the 14 applicable rules and regulations did not violate due process. The Superior Court’s construction 15 of its own laws may not be set aside in this federal habeas corpus proceeding. See Estelle v. 16 McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); 17 Aponte v. Gomez, 993 F.2d 705, 707 (9th Cir. 1993). There is no federal constitutional 18 requirement that California regulations define or respond to suspected gang participation in any 19 particular manner. 20 Petitioner’s claim that his procedural due process rights were violated when he was 21 validated as a BGF gang member and placed in the SHU lacks merit. He was informed that he 22 had been identified as a gang member and was shown the documentation underlying that 23 identification. At the classification committee meeting held on September 20, 2001, he was an 24 “active participant” and was also allowed to express his opinion that he was not a gang member. 25 The duties of the committee at this hearing were to “consider all available evidence or 26 information relating to the validity of the reasons given for the placement as well as the need to 13 1 retain the inmate in administrative segregation. . . . “ Cal. Code Regs. tit. 15, § 3338(f). 2 Petitioner has presented nothing suggesting that the ICC members failed to comply with these 3 duties. Moreover, petitioner has received periodic review of the committee’s decision. He has 4 therefore received all the process to which he is entitled. Toussaint, 801 F.2d at 1100-01. 5 There was also sufficient evidentiary support for petitioner’s assignment to 6 administrative segregation. The “some evidence” standard sets a low bar, consistent with the 7 recognition that assignment of inmates within prisons is “essentially a matter of administrative 8 discretion,” subject to “minimal legal limitations.” Bruce, 351 F.3d at 1287 (citing Toussaint, 9 801 F.2d 1080, with respect to the minimal limitations). A single piece of evidence may be 10 sufficient to meet the “some evidence” requirement, if that evidence has “sufficient indicia of 11 reliability.” Id. at 1288; Cato, 824 F.2d at 705 (“relevant question is whether there is any 12 evidence in the record that could support the conclusion reached by the disciplinary board” 13 (citing Hill, 472 U.S. at 455-56 (emphases in original)); Toussaint, 926 F.2d at 803 (articulating 14 “sufficient indicia of reliability” standard). The material relied upon by Officer Peterson and the 15 ICC to validate petitioner as a gang member, including the materials found in his cell, met this 16 standard. 17 For all of the foregoing reasons, petitioner has failed to demonstrate that his right to due 18 process was violated when he was identified as a BGF member and housed in the SHU. 19 Accordingly, he is not entitled to relief on his due process claim. 20 21 2. Equal Protection In claim 4 of the petition, petitioner alleges in a conclusory manner that his placement in 22 the SHU violated his right to equal protection. Pet. at 17. Respondent did not address 23 petitioner’s equal protection claim in the answer. In his supplemental traverse, petitioner argues 24 that his right to equal protection was violated by his placement in the SHU because, unlike 25 petitioner, general population prisoners and prisoners affiliated with other prison gangs are not 26 placed in the SHU and deprived of privileges and time credits unless they have been found guilty 14 1 of a serious rules violation. Supplemental Traverse at 5-7. In support of this contention, 2 petitioner includes an exhibit which reflects that prison authorities have classified several other 3 groups as “street gangs” or “disruptive groups” for purposes of assessing each prisoner’s 4 classification score. Id., Ex. B. In a handwritten notation on this exhibit, petitioner states, “other 5 groups/gangs in gen. pop.” Id. Petitioner is apparently claiming that other inmates who may be 6 involved in gang activity are allowed to remain in the general prison population, while he was 7 placed in the SHU after he was validated as a member of the BGF. He claims that this situation 8 violates his right to equal protection. 9 The Equal Protection Clause of the Fourteenth Amendment “commands that no State 10 shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is 11 essentially a direction that all persons similarly situated should be treated alike.” City of 12 Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). See also McLean v. Crabtree, 13 173 F.3d 1176, 1185 (9th Cir. 1999) (holding in a habeas case that proof of discriminatory intent 14 is required to show that state action having a disparate impact violates the Equal Protection 15 Clause); Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006) (explaining in 16 the context of habeas ruling that “[t]o establish an equal protection claim, a prisoner must 17 demonstrate that (1) he is similarly situated to other prisoners who received more favorable 18 treatment; and (2) the state engaged in invidious discrimination against him based on race, 19 religion, national origin, or some other constitutionally protected basis”). “There must be an 20 allegation of invidiousness or illegitimacy in [a] statutory scheme before a cognizable [equal 21 protection] claim arises.” McQueary v. Blodgett, 924 F.2d 829, 835 (9th Cir. 1991). Federal 22 courts employ a strong presumption that governmental classifications do not violate the Equal 23 Protection Clause unless they burden a suspect class or a fundamental interest. Id. 24 Petitioner’s equal protection claim lacks merit. The first inquiry for an equal protection 25 claim is which standard of review applies. This, in turn, is determined by whether the petitioner 26 is challenging governmental action that discriminates on the basis of a suspect classification or 15 1 the exercise of a fundamental right. If so, a heightened level of scrutiny would apply. Here, 2 however, petitioner does not challenge class based discrimination predicated on race or any other 3 suspect classification.5 Neither does he allege discrimination based on the exercise of a 4 fundamental right. Rather, he contends that other suspected gang members were treated more 5 favorably than he. Absent a suspect classification or discrimination based on the exercise of a 6 fundamental right, the relevant standard is a “rational basis” review. Under that standard the 7 court must determine whether the actions taken by the prison officials are rationally related, i.e. 8 reasonably further, a legitimate governmental interest. The state clearly has an interest in 9 dealing with the danger of prison gangs to advance the legitimate goal of safety and order in the 10 prison. That interest is not only legitimate, it is compelling. See Warsoldier v. Woodford, 418 11 F.3d 989, 997 (9th Cir. 2005). The measures taken here to isolate gang members from the 12 general prison population is a rational means for furthering the legitimate penological goal of 13 reducing the risk of gang violence and therefore satisfies rational basis scrutiny under the Equal 14 Protection Clause. Nor has petitioner presented evidence showing that distinctions, if any, 15 drawn by prison authorities with regard to various prison gangs or groups lack a rational basis. 16 More fundamentally, petitioner also fails to establish disparate treatment, let alone a 17 difference in treatment that lacks a legitimate justification. He alleges that his placement in the 18 SHU after he was validated as a member of BGF violated his right to equal protection because 19 5 20 21 22 23 24 25 26 Petitioner does not allege that he is a member of a protected class, and there is no suggestion that his transfer to the SHU was the result of invidious discrimination. See, e.g., Wolff, 418 U.S. at 556 (observing that prisoners are protected under the Equal Protection clause against invidious discrimination); More v. Farrier, 984 F.2d 269, 272 (8th Cir.1993) (holding that where a case “does not rise to the level of invidious discrimination proscribed by the Equal Protection Clause . . . the federal courts should defer to the judgment of the prison officials.”). Finally, “[a]lthough the Equal Protection Clause ensures similarly situated persons are treated alike, it does not ensure absolute equality.” Bruce, 351 F.3d at 1288. See also, Giba v. Cook, 232 F. Supp.2d 1171, 1192 (D.Or. 2002) (guard’s disciplining of a prisoner did not violate the prisoner’s equal protection rights even if the same activity would have been overlooked if done by a different prisoner). Under the circumstances presented here, petitioner’s placement in the SHU did not violate his right to equal protection. Bruce, 351 F.3d at 1288 (“because . . . Bruce was afforded the process he was due, the same process all gang affiliates are due, any purported difference in treatment does not rise to the level of an equal protection violation”). 16 1 other prisoners who are gang-affiliated have not been confined in the SHU. But he has failed to 2 demonstrate that these other prisoners are “similarly situated” to him or that similar prisoners 3 were systematically treated better than he was. His allegations to the contrary are conclusory 4 and unsupported. His exhibit does not support any such claim. See Ashker v. Schwarzenegger, 5 No. C 05-03286 CW, 2009 WL 801557, at *17 (N.D. Cal. March 29, 2009)6 (although petitioner 6 alleged that regulations regarding validation as a gang member and placement in the SHU were 7 “enforced arbitrarily because there are many gang members in the general population,” the 8 evidence submitted in support of this contention was inadmissible and did not “support his claim 9 that Defendants improperly reviewed him for gang validation”). 10 For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner’s 11 application for a writ of habeas corpus be denied and the Clerk be directed to close the case. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one 14 days after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 within the specified time may waive the right to appeal the District Court’s order. Turner v. 18 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 19 his objections petitioner may address whether a certificate of appealability should issue in the 20 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 21 //// 22 //// 23 6 24 25 26 All federal district court rulings and opinions – published or not – may be cited as precedent unless prohibited by local rule. William W. Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial, ¶ 1:14.3 (1997) (TGR); see also Aetna Cas. And Surety Co. v. Kerr-McGee Chemical Corp. 875 F. 2d 1252, 1255 n. 2 (7th Cir. 1989). The local rules of the Eastern District of California do not prohibit the citation to unpublished district court rulings and opinions. 17 1 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 2 enters a final order adverse to the applicant). 3 DATED: December 17, 2009. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 18
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