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HARRISON v. McGRATH

June 18, 2004.

MARCUS HARRISON, Plaintiff,
v.
JOE McGRATH, Defendant.



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

JUDGMENT

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

IT IS SO ORDERED AND ADJUDGED. ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

  INTRODUCTION

  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.

  BACKGROUND

  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 ...


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