does lend the informant some credibility because the link analysis corroborates his statement regarding the other inmate.
Even assuming that the link analysis does not constitute evidence of the reliability of the confidential source, other facts in the record supply that evidence. The Hearing Officer also based his disposition on the information in the Rules Violation Report. The Report states that marijuana was discovered in Pratt's property. While the relatively small quantity of marijuana discovered (2.32 grams) is not persuasive evidence of marijuana trafficking, its discovery close upon the heels of the informant's statement enhances the informant's reliability. This is particularly so since the informant accused Pratt of trafficking in marijuana, the drug discovered among Pratt's property.
Finally, one of the Confidential Information Disclosure Forms given to Pratt indicates that the confidential source was deemed reliable because that source incriminated himself in a criminal activity at the time of providing the information. The record substantiates the finding. The informant, Pratt, and the other inmates incriminated by the informant received identical penalties. Pratt suggests that the informant was "caught red-handed" and therefore sought to ingratiate himself to prison authorities by implicating Pratt in the trafficking scheme. The fact that the informant received the same punishment as those he incriminated does not support the suggestion.
The facts here are distinguishable from those in Cato v. Rushen, 824 F.2d 703 (9th Cir. 1987), where the Ninth Circuit found that a confidential source was not sufficiently reliable to support a disciplinary finding of guilt. Unlike the informant in Cato, the source here possessed detailed, firsthand knowledge of the trafficking scheme. Bearing in mind that the reliability determination must be deferential, the Court concludes that there is some evidence supporting the Hearing Officer's determination that Pratt was guilty of marijuana trafficking and moreover, that the Hearing Officer's reliance on this evidence was not unreasonable.
Although the balance of the hardships in this matter favors Pratt, the Court finds that he has failed to show either a likelihood of success on the merits, or the existence of serious questions going to the merits, regarding his claim that he was deprived of due process in connection with the disciplinary proceedings on his marijuana trafficking charge.
B. Propriety of Retaining Pratt in Administrative Segregation
Even if the Court were to set aside Pratt's marijuana trafficking charge, however, Pratt would not be entitled to release from administrative segregation. Plaintiff has confused the issue of his SHU term--the penalty imposed for his marijuana trafficking violation--with his current confinement in administrative segregation. Prison officials have made an administrative determination that Pratt poses a security and safety risk to the institution and accordingly placed and retained him in administrative segregation until he can be transferred to an institution where he can serve his SHU term. See Blanks Decl., Exh. F; see also 15 Cal. Code of Regs § 3335. While it is true that Pratt's initial placement in administrative segregation on April 1, 1991 was based solely on the trafficking charge, his retention in segregation was based on both the trafficking and possession charges. Blanks Decl., Exh. F.
Therefore, before the Court could properly conclude that the administrative finding that Pratt presented a security risk was unwarranted, it would have to agree that both the trafficking and possession charges were groundless. Discovery of marijuana in Pratt's property constitutes some evidence of marijuana possession. Hence this Court lacks authority to strike down that charge. For that matter, the quantum of due process required for placement and retention of an inmate in administrative segregation is much lower than for disciplinary confinement. Toussaint v. McCarthy, 801 F.2d 1080, 1098-1101 (9th Cir. 1986), cert. denied, 481 U.S. 1069, 95 L. Ed. 2d 871, 107 S. Ct. 2462 (1987). Given the "highly charged" atmosphere of a prison and the need for swift action, prison authorities had cause at the outset to place Pratt in administrative segregation pending their investigation of the validity of the trafficking charge, even if that charge were based on nothing more than rumor. Cato, 824 F.2d at 705. Regarding his retention in segregation, prison authorities have provided him the periodic review mandated by due process. See Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir. 1990). Plaintiff has not suggested that prison authorities has failed to follow the correct procedures in placing and retaining him in administrative segregation.
Of course, administrative segregation may not be used as a pretext for Pratt's indefinite confinement. Hewitt v. Helms, 459 U.S. 460, 477 n. 9, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). There is no evidence in the record, however, that his four-month confinement is a pretext. If, at some future date, it becomes apparent that Pratt is being retained indefinitely in administrative segregation, the Court will consider granting relief.
C. Retaliatory Motive
Finally, Pratt urges the Court to order his return to the general prison population on the ground that prison authorities brought the marijuana possession and trafficking charges against him out of a retaliatory motive. According to Pratt, prison authorities continually harass and retaliate against him because of his prominence, his vigorous pursuit of legal remedies, his political beliefs, and his impending parole board hearing this month. Pratt urges the Court to consider the long history of reprisals against him by prison officials and to conclude from that history that the possession and trafficking charges are yet another example of retaliatory conduct by the authorities.
The point is not well-taken. The Court first observes that although Pratt has submitted two extensive declarations cataloging a myriad of examples of actions allegedly taken by prison authorities to harass and retaliate against him, there is no evidence in the record that the marijuana trafficking and possession charges were brought against him in retaliation.
The Court acknowledges that such evidence would be difficult to produce.
Even assuming, however, that the charges were brought against him so as to curtail Pratt's exercise of his first amendment rights and his right of access to the courts, Pratt must prove that the alleged retaliation did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). Based on the findings that Pratt was guilty of marijuana trafficking and possession, the Court cannot say that his segregation and SHU penalty did not serve legitimate penological purposes. Moreover, it does not appear that Pratt was selectively disciplined since four inmates other than Pratt were punished for trafficking. Thus, the Court concludes that Pratt has demonstrated neither a likelihood of success nor the existence of serious questions going to the merits of his claim that he is entitled to release from segregation on the ground that defendants retaliated against him.
Although Pratt is not entitled to release from segregation because of defendants' alleged retaliatory acts against him, the Court is concerned about the possibility that defendants have harassed Pratt in the past because of his prominence and active pursuit of legal action. The old adage "where there's smoke, there's fire," is apt here. Pratt's two declarations provide many examples of recent conduct on the part of some of the defendants which, if proven, would be totally unacceptable. The Court finds that these allegations are too serious, detailed, and numerous to dismiss.
See Pratt Decl.; Pratt Supp. Decl.
Besides these recent incidents, there have been two judicial findings that prison authorities have violated Pratt's constitutional rights. Pratt prevailed in his federal action filed in 1976 entitled Pratt v. Rees, No. C-76-1069-SC. In 1981, a jury found that Pratt had unlawfully been placed in segregated confinement by prison authorities. In addition, this Court issued a preliminary injunction in September 1989 which prohibited prison authorities from transferring Pratt from San Quentin to Folsom prisons on the ground that the transfer was likely retaliatory.
In light of this evidence, the Court finds that Pratt has shown, at a minimum, the existence of serious questions on the merits of his claim that prison authorities have harassed and retaliated against him. Moreover, the balance of the hardships unquestionably tips in his favor.
The appropriate injunctive remedy, at this stage, is for the Court to issue a preliminary injunction enjoining defendants from harassing Pratt or imposing penalties or other reprisals on him because of his high profile status or his legal activities.
The above constitutes this Court's findings of fact and conclusions of law.
IT IS HEREBY ORDERED that plaintiff's motion for an preliminary injunction ordering his release from administrative segregation and setting aside his marijuana trafficking charge is DENIED.
IT IS FURTHER ORDERED that defendants, their officers, servants, employees, and all persons acting in concert or participation with them are enjoined and restrained from threatening plaintiff with punishment, penalty, or other reprisals; harassing plaintiff; or imposing punishment, penalty, or other reprisals because of plaintiff's exercise of his rights under the First Amendment or his pursuit of legal remedies or his political beliefs or his media attention.
No provision of this Order shall be violated by any artifice or indirection.