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United States District Court, N.D. California

June 18, 2004.

JOE McGRATH, Defendant.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


Defendants' motion for summary judgment having been granted, judgment is now entered in favor of defendant and against plaintiff.



  Marcus Harrison, an inmate at Pelican Bay State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. Defendant has moved for summary judgment and plaintiff has opposed the motion. For the reasons discussed below, the court concludes that defendant is entitled to judgment as a matter of law on plaintiff's complaint and grants defendant's motion for summary judgment.


  This action concerns Marcus Harrison's placement and retention in administrative segregation as a gang member. The following facts are undisputed unless otherwise noted.

  California Department of Corrections ("CDC") administrators believe prison gangs pose a severe threat to the safety and security of California prisons. Prison gangs are responsible for murders, assaults and extortion within and outside California's prisons. Inmates who are thought to be gang members are investigated and, if deemed to meet the requirements in 15 Cal. Code Regs. § 3378, are validated as gang members and put in administrative segregation ("ad-seg") in a security housing unit ("SHU").*fn1 This placement restricts the gang members' ability to violently disrupt the orderly operations of prisons. Gang members continue to pose a threat, albeit a diminished one, even while they are in ad-seg.

  The general process of identifying and validating a prison gang member was described in the declaration of James Moreno: An inmate may be identified by CDC staff as a potential prison gang member because of his behavior. The institutional gang investigator ("IGI"), who generally holds the position of a CDC lieutenant and is chosen based on his or her experience with gangs, investigates the inmate's possible gang activities. Under state regulation, 15 Cal. Code Regs. § 3378, an inmate can be validated based on three or more source items indicating gang activity, such as self-admission, writings, tattoos, photos, information from informants, and association/communication with other gang members or associates. If the IGI investigates and determines that sufficient evidence exists to validate an inmate, the IGI interviews the inmate to allow him to rebut the evidence supporting the contemplated validation. Documentation of the investigation, interview and any follow-up investigation is sent to the facility investigative captain for review and then forwarded to the special service unit for review. A special agent assigned to the institution reviews the entire validation investigation and, if he approves it, presents the investigation to the institutional classification committee. The inmate is allowed to appear before the committee and present his views about his housing in ad-seg. The committee reviews the evidence used to validate, notes the findings in writing and forwards a copy to the inmate. The inmate is normally put in ad-seg pending the review and, if validated, will be assessed an indeterminate term in ad-seg in the SHU. Once validated as a prison gang member, the inmate can be released from the ad-seg term under several circumstances, the most common of which are debriefing (i.e., disassociating himself from the gang), inactivity in the gang, and release from custody.

  Harrison was validated as a member of the Black Guerilla Family ("BGF") prison gang and consequently was placed in ad-seg in November 1997. The validation decision was based on information contained in memoranda dated August 12, 1994 and September 6, 1996, and documents obtained from Harrison's cell. The confidential memorandum dated August 12, 1994 stated that: (a) a confidential reliable informant told staff that Harrison was associating with BGF members and was a BGF member, (2) two other confidential reliable informants told staff that Harrison was carrying out orders involving gang violence for the BGF, and (3) written materials pertaining to BGF activities were removed from Harrison's cell. The confidential memorandum dated September 6, 1996 recounted that a debriefing member of the BGF identified Harrison as a member of that gang. Harrison received confidential information disclosure forms, also known as CDC-1030 forms, regarding this confidential information used to validate his gang status and the reason for his placement in ad-seg. Harrison has not been allowed to see the confidential memoranda or to view the documents seized from his cell. Harrison did appear before the institutional classification committee to present his views about his housing in ad-seg after he was first placed in ad-seg.

  Harrison has received periodic reviews at least every 180 days of the decision to validate him as a BGF member in the several years since he was validated.

  Because a prisoner who is labeled as a gang member generally remains in ad-seg until he paroles, debriefs or dies, Harrison may remain in ad-seg for the rest of his life term unless the decision to categorize him as a gang member is set aside. Harrison has remained in the SHU since November 1997, although during some of that time he apparently has been serving disciplinary sentences for rules violations. Most of the time, however, he has been in the SHU as an ad-seg inmate due to his gang validation. VENUE AND JURISDICTION

  Venue is proper in the Northern District of California under 28 U.S.C. § 1391 because the events or omissions giving rise to the claims occurred at Pelican Bay State Prison in Del Norte County, which is located within the Northern District. This court has federal question jurisdiction over this action brought under 42 U.S.C. § 1983. See 28 U.S.C. § 1331.


  The court will grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.")

  Generally, the moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to "go beyond the pleadings, and by his own affidavits, or by the `depositions, answers to interrogatories, or admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citations omitted).

  A verified complaint, such as Harrison's, may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn. 10-11 (9th Cir. 1995) (treating plaintiff's verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge). The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party, and the inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. See id. at 631.


  A. Motion To File Evidence Under Seal

  Defendant filed a motion for receipt of confidential documents under seal and for in camera review. Defendant later clarified in a letter brief that the documents sought to be sealed were the exhibits to the Declaration of James Moreno and that the declaration itself was not intended to be filed under seal. Defendant has demonstrated that the confidential information in the documents, if disclosed, would create a severe risk to the safety of other prisoners and institutional security. Upon due consideration, the court grants defendant's motion, allows the exhibits to the Moreno Declaration to be filed under seal, and reviews the documents in camera as part of the record for ruling on the summary judgment motion.

  B. Due Process Claims

  1. Initial Decision To Place Harrison In Ad-Seg

  The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution protects individuals against governmental deprivations of life, liberty or property without due process of law. Changes in conditions of confinement for a prison inmate may amount to a deprivation of a constitutionally protected liberty interest, provided that the liberty interest in question is one of real substance. Sandin v. Conner, 515 U.S. 472, 477-87 (1995).*fn2 When prison officials initially determine whether a prisoner is to be segregated for administrative reasons and a liberty interest of real substance is implicated, due process requires that they hold an informal nonadversary hearing within a reasonable time after the prisoner is segregated, inform the prisoner of the charges against him or the reasons segregation is being considered, and allow the prisoner to present his views. Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).*fn3 Due process also requires that there be an evidentiary basis for the prison officials' decision to place an inmate in segregation for administrative reasons. Superintendent v. Hill, 472 U.S. 445, 455 (1985); Toussaint, 801 F.2d at 1104-05. This standard is met if there is "some evidence" from which the conclusion of the administrative tribunal could be deduced. Superintendent v. Hill, 472 U.S. at 455; Toussaint, 801 F.2d at 1105. The "some evidence" standard applies to an inmate's placement in SHU for gang affiliation. See Bruce v. Ylst, 351 F.3d 1283, 1287-88 (9th Cir. 2003).

  There is some authority for the proposition that the evidence relied upon to confine an inmate to the SHU for gang affiliation must have "some indicia of reliability" to satisfy due process requirements. Madrid v. Gomez, 889 F. Supp. 1146, 1273-74 (N.D. Cal. 1995); see also Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir. 1990), cert. denied, 502 U.S. 874 (1991) (considering accuracy of polygraph results when used as evidence to support placement in administrative segregation); Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) (evidence relied upon by a prison disciplinary board must have "some indicia of reliability").*fn4 Harrison alleges that the evidence relied upon to validate him as a prison gang member was not sufficient or reliable. He also contends he was not permitted to present a defense.

  The court has reviewed in camera the two confidential memoranda and attached writings relied on to validate Harrison as a BGF member, mindful that Harrison will never be allowed to examine those materials himself. The confidential memoranda — excluding the statements in the August 12, 1984 memorandum concerning the materials retrieved from Harrison's cell — meet the "some evidence" standard and the evidence relied upon has sufficient indicia of reliability.

  The August 12, 1994 memorandum contains information obtained by a correctional sergeant during interviews with several BGF members and associates. One of those inmates identified Harrison as a member of the BGF who had organized meetings with BGF members during which BGF business was discussed. This information met CDC reliability standards because other confidential sources had independently provided the same information and the informant provided self-incriminatory information. A second inmate provided similar information and identified Harrison as a member of the BGF who spoke of BGF business, one of the topics of which was also mentioned in a document found in Harrison's cell. This information met CDC reliability standards because other confidential sources had independently provided the same information, the informant provided self-incriminatory information, and a document found in Harrison's cell provided corroborating information. A third inmate also stated that Harrison identified himself as a BGF member and spoke of BGF business. This information met CDC reliability standards because other confidential sources had independently provided the same information and because part of the information provided has proven true. The August 12, 1984 memorandum also described documents removed from Harrison's cell pertaining to BGF activities, but the court excludes that information as well as the documents themselves from its consideration of the adequacy of the memorandum for the reasons discussed later in this order.

  The September 6, 1996 confidential memorandum used to validate Harrison memorialized a debriefing interview with a BGF member. That debriefing inmate described BGF activities and identified numerous BGF members and associates, including Harrison. The information was deemed reliable because it was corroborated by numerous other confidential memoranda as well as several rule violation reports.

  The two memoranda show that prison officials interviewed the informants and determined that the information they provided was reliable. The information in the memoranda is constitutionally reliable, i.e., the memoranda contain some factual information from which the validating committee could reasonably conclude that the information was reliable. See Zimmerlee, 831 F.2d at 186-87. And the record before the court contains an affirmative statement that safety concerns prevent disclosure of the informants' names. The record before the court also contains an affirmative statement that disclosure of even a redacted version of the memoranda could jeopardize people's safety because of the possibility that an inmate may be able to deduce from the memoranda who the informants were.

  Harrison urges that prison officials wrongly counted the August 12, 1994 memorandum as two different sources because two CDC-1030 forms were filled out and both were based on the same August 12, 1994 memorandum. See Complaint, p. 6. There are two answers to Harrison's argument. First, the August 12, 1994 memorandum summarizes information received from three different inmates (each of whom identified Harrison as a BGF member) and describes the documents retrieved from Harrison's cell that connected him to the BGF. Even though there was only one memorandum, that one memorandum memorialized information received from at least four sources, i.e., the three different inmates and the materials retrieved from Harrison's cell. Second, the number of sources is irrelevant to the federal due process analysis which considers whether there is "some evidence" to support the determination without regard for the particular number of sources. The state regulation's requirement's of three separate sources is a matter of state law and does not dictate the outcome of the federal due process analysis. Even a single source of information can be sufficient to satisfy the federal due process "some evidence" standard. See Bruce, 351 F.3d at 1288.

  Harrison also urges that he was unable to present an effective defense because he was not allowed to see the confidential memoranda used to validate him. Harrison is not alone in this situation: no inmate is allowed to see the confidential memoranda used to validate him. The memoranda contain confidential information that, if disclosed to the inmate, would present a grave security risk to the inmates identified in the memoranda and harm the prison staff's efforts to thwart prison gangs. Even in the disciplinary segregation context — where procedural protections are greater — the Supreme Court has indicated that the level of specificity required to give a prisoner notice of the charges against him could vary in response to legitimate penological needs. "[T]he Court has stated that in identifying the safeguards due process requires in this context, courts should remember `the legitimate institutional needs of assuring the safety of inmates and prisoners' and avoid `burdensome administrative requirements that might be susceptible to manipulation.'" Zimmerlee, 831 F.2d at 188 (quoting Superintendent v. Hill, 472 U.S. at 454-55). One legitimate concern for prison administrators is the possibility that disclosure of certain information can endanger another inmate's safety, such as might occur if prison administrators disclose the identity of a confidential inmate-informant or disclose enough details about the information provided by such an informant that the accused can figure out his identity. Cf. Wolff, 418 U.S. at 568-69. There are affirmative and undisputed statements from declarant Moreno that disclosing the information in the confidential memoranda to Harrison would severely endanger the safety of numerous inmates and civilians, and that the danger cannot be avoided by merely redacting the informants' names.

  Harrison further urges that he could not present an effective defense because he was not allowed to see the documents removed from his cell that purportedly were related to the BGF. He argues that he ought to be allowed to see these documents because, if they were taken from his cell, he already should have seen them and no new information would be disclosed to him.*fn5 Defendant does not respond to this contention. Defendant has shown that the security concerns demand that Harrison not be allowed to see the confidential memoranda, but those same security concerns are not articulated as to the documents seized from his cell. While there may be reasons to not to disclose the documents seized from the cell in the validation process, those reasons have not been presented to the court. The court won't hypothesize reasons to fill in the evidentiary gap left by defendant. Harrison's ability to respond to the documents not shown to him is troublesome — not only must he prove the negative (i.e., that he isn't a gang member), but he must try to do so without knowing what documents the hearing officer is relying on as proof that he is in a gang. However, this problem does not lead to the defeat of the summary judgment motion because there is some evidence to support the validation decision even when the documents seized from Harrison's cell are left out of the analysis. That is, the confidential memoranda show that at least three separate informants identified Harrison as being a BGF member and provide some reliable evidence to support the decision to validate him as a BGF member.

  Harrison also complains that the information used to validate him was stale — he was sent back to prison in 1997 and the information used to validate him is from 1994 and 1996. Complaint, p. 7. Due process does not require that the information used to validate be of a particular age. There may be a point at which evidence is so old and remote, e.g., 20-30 years old, that it cannot clear the very low "some evidence" hurdle to show current membership in a gang, but the 1- and 3-year old evidence used here to validate Harrison, as a matter of law, is not so old that it does not meet the some evidence standard.

  Harrison has failed to show that there is a triable issue of fact on his claim that he was not afforded due process when he was initially placed in ad-seg as a BGF member.

  2. Periodic Review of Harrison's Retention In Ad-Seg

  Prison officials must also engage in some sort of periodic review of an inmate's confinement in ad-seg, Hewitt v. Helms, 459 U.S. 460, 477 n. 9 (1983); Toussaint, 801 F.2d at 1101, which must amount to more than "meaningless gestures." Toussaint v. Rowland, 711 F. Supp. 536, 540 n. 11 (N.D. Cal. 1989) (citing Toussaint v. McCarthy, 801 F.2d at 1102).

  Defendant has presented evidence that (1) Harrison's ad-seg placement has been reviewed on many occasions and reaffirmed and (2) there was and remains some evidence to support the decision to place and retain him in ad-seg due to his BGF gang membership.

  Harrison has not met his burden of producing evidence from which the inference could be drawn that the periodic reviews were meaningless. He contends that he has been denied meaningful review of his placement in ad-seg, but his arguments just reiterate his complaint that there was not sufficient evidence to support his original validation, that the evidence was not reliable, and that he was not allowed to see the information used to validate him. Complaint, pp. 10-12, 16. For the reasons described in the preceding section, these arguments are not persuasive. Harrison also appears to contend that he has a right to present witnesses, present evidence in his defense and have the assistance of an investigative employee at the periodic reviews. Complaint, p. 15; Opposition to Motion For Summary Judgment, pp. 4-5. Due process does not require these procedural protections for the periodic reviews. Cf. Toussaint, 801 F.2d at 1100-01. Harrison has failed to show that there is a triable issue of fact on his claim that he was not afforded due process in the periodic reviews of his retention in ad-seg as a BGF member.

  The due process analysis in this case exemplifies the limited role of federal courts in matters of state prison administration. Not only must courts "accord wide-ranging deference to prison administrators `in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security,'" Toussaint v. McCarthy, 801 F.2d 1080, 1104 (9th Cir. 1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)), but federal courts examining state government action also are restricted by principles of federalism, see id. With these limits in mind, this court determines merely whether the right procedural protections were afforded, and not whether the right decision was made. There is no genuine issue of material fact as to the procedures and evidence used when decisions were made to place and retain Harrison in ad-seg. On the undisputed evidence, defendant is entitled to summary judgment on the complaint.


  Defendant's motion for receipt of confidential documents under seal and for in camera review is GRANTED. (Docket # 35.) The exhibits to the Moreno Declaration will be filed under seal, although the declaration itself will be part of the public record. The exhibits to the Moreno Declaration will remain under seal and not available for viewing by plaintiff or the public except upon further order of the court.

  For the foregoing reasons, defendant's motion for summary judgment is GRANTED. (Docket # 33.) Judgment now will be entered in favor of defendant and against plaintiff.

  The clerk shall close the file.


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