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August 21, 1995


The opinion of the court was delivered by: CLAUDIA WILKEN

 Plaintiff Cleotha Jones, a prisoner at Vacaville state prison, filed this civil rights action under 42 U.S.C. § 1983 regarding (1) his confinement in a Secured Housing Unit at Pelican Bay state prison beyond his scheduled release date from SHU and (2) Defendants' subsequent failure to transfer plaintiff from the SHU at Pelican Bay back to Vacaville until two months after the Classification Security Representative ("CSR") approved such a move. Plaintiff, proceeding in forma pauperis and pro se, alleges that he was deprived of a liberty interest created by California Code of Regulations Title 15 § 3341.5 when Defendants retained him in SHU beyond his scheduled release date and continued to retain him after after the CSR endorsed his transfer back to Vacaville. Defendants move for summary judgment, and Plaintiff opposes the motion.

 After careful consideration of the parties' papers and the record as a whole, and good cause appearing, Defendants' motion is GRANTED in its entirety for the reasons stated below.


 On September 17, 1992, Plaintiff was transferred from the California Medical Facility ("CMF") at Vacaville to a Secured Housing Unit (SHU) at Pelican Bay to serve a determinate term after being found guilty at a disciplinary hearing of assault on another inmate. Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment ("Defs' Memo"), Exhibit A. Plaintiff's Minimum Eligible Release Date ("MERD") from the SHU was November 18, 1992.

 On October 8, 1992, an Institutional Classification Committee ("ICC") met to conduct a pre-MERD review of Plaintiff's case pursuant to California Code of Regulations Title 15 § 3341.5. Defs' Memo, Exhibit B, Classification Chrono *fn1" dated October 8, 1992. Plaintiff refused to appear. Id. The ICC recommended in his absence that he be transferred to a level IV general population at Folsom or Pelican Bay upon completion of his SHU term. Id. In its recommendation, the committee noted that Plaintiff had earlier been referred for psychiatric evaluation, which was still pending. Id. The committee referred the case with its recommendation to a Classification Staff Representative (CSR) for endorsement. Id.

 California Department of Corrections ("CDC") records show that the committee's recommendation for transfer never reached a CSR. Defs' Memo, Exhibit C, Classification Chrono dated November 12, 1992. Before it reached a CSR, the committee retracted it because the psychiatric evaluation was still pending. Id.

 On November 2, 1992, a preliminary psychiatric evaluation was completed. Id. Plaintiff was found to be actively psychotic. Id. The evaluation noted that Plaintiff had threatened to kill any inmate that came near him. Id. It found that Plaintiff was a serious danger to the safety of other inmates and staff.

 In its November 12, 1992 meeting on the case, the ICC received the November 2 evaluation. Id. The committee noted that Plaintiff had "potential for extreme violence." Id. The committee also noted that while some mental health professionals considered Plaintiff to be psychotic and in need of in-patient psychiatric treatment, others considered Plaintiff to have a personality disorder rather than a treatable mental illness. Id. Plaintiff told the committee that he did not wish to go to the general population and that, if sent to the general population, he would do whatever necessary to anyone around him, including killing them. Id. The ICC found Plaintiff to be a serious danger to the safety of other inmates and staff if housed in the general population, and recommended that Plaintiff be retained at the Pelican Bay SHU for an indeterminate term, pending clarification of his current psychological status. Id.

 On December 1, 1992, Plaintiff was reevaluated by a psychiatric treatment team, which reached agreement with CMF evaluators that Plaintiff should be transferred to CMF for evaluation as a candidate for Category "J," a psychiatric "outpatient" treatment program at Vacaville. Defs' Memo, Exhibit D, Classification Chrono dated December 3, 1992. On December 3, 1992, the ICC met again and received this information. Id. Plaintiff appeared and vehemently objected to the proposed transfer, threatening to kill staff and inmates if such a transfer was attempted. Id. The ICC recommended that Plaintiff be transferred to CMF for Category "J" evaluation and be retained in SHU on indeterminate status pending endorsement and transfer. Id. The recommendation was referred to the CSR for endorsement.

 CDC records show that on December 17, 1992, a CSR endorsed the transfer to CMF Vacaville. Defs' Memo, Exhibit F, Classification Chrono dated December 17, 1992. Plaintiff was retained in SHU pending the transfer. Id. On January 6th, Plaintiff's retention in SHU was designated as administrative segregation pending transfer to Vacaville. Plaintiff's Memo, Exhibit D. Plaintiff was transferred to CMF on February 18, 1993. Defs' Memo, Exhibit A.

 Plaintiff claims that his retention in SHU violated due process because he was retained by a classification committee beyond his scheduled release date from SHU. He also contends that Defendants violated due process by unreasonably delaying his transfer to Vacaville after the CSR approved his transfer on December 17, 1992. Plaintiff claims that during this two month period he should have been "placed in a hospital and cared for by professional people" instead of being held in solitary confinement in the Pelican Bay SHU for 22 hours a day. Plaintiff seeks damages.


 Summary judgment is properly granted when no genuine and disputed issues of material fact remain, or when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288-89 (9th Cir. 1987). Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The moving party bears the burden of showing that there is no material factual dispute. Therefore, the Court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The Court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Intel Corp. v. Hartford Accident and Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).


 Title 42 U.S.C. § 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. Graham v. Connor 490 U.S. 386, 393-4, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements, first, that a right secured by the Constitution and laws of the United States was violated, and second, that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988); Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987). It ...

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