United States District Court, N.D. California
December 6, 2005.
DALE HARVEY, Plaintiff,
JOE McGRATH, et al., Defendants.
The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Dale Harvey, a prisoner of the State of California, filed the
instant pro se civil rights action pursuant to 42 U.S.C. § 1983
seeking damages. Defendants move for summary judgment on the
ground that there are no material facts in dispute and that they
are entitled to qualified immunity as a matter of law. Harvey did
not file an opposition.
This action concerns Harvey's placement and retention in
administrative segregation ("ad-seg") in Pelican Bay State
Prison. The following facts are undisputed, unless otherwise
On June 21, 2003, correctional officer Broadbent was stabbed by
an inmate on the roadway of B facility. Harvey was present at the
scene when the stabbing occurred. On June 27, 2003, Harvey was
placed in ad-seg pending an investigation into the possible
conspiracy to murder a correctional officer.
Harvey was issued a California Department of Corrections Form
1030, Confidential Information Disclosure Form, which stated that
prison officials had received information that Harvey was
involved in the conspiracy to murder Broadbent. The confidential
information, submitted under seal, shows that prior to the
incident, Harvey had been associated with inmates involved in
prison gang activity. The information also shows that prior to
the stabbing, Harvey had expressed displeasure with prison staff
due to changes in the facility program, and had become
increasingly disrespectful to staff. Prison investigators also
obtained confidential information that Harvey had stated that
there was a "green light on staff" in his unit. Prison officials
were concerned that Harvey may have been involved in, or had
knowledge of, the stabbing. During an interview while he was in
ad-seg, Harvey admitted that he was present at the scene of the
stabbing and had observed the stabbing. He also admitted that he
was a member of a street gang, and that should an officer ever
disrespect him, he would not hesitate to assault the officer.
On July 2, 2003, Harvey's placement in ad-seg was reviewed by
the Institutional Classification Committee (ICC). The ICC, which
included defendants, decided to retain Harvey in ad-seg on the
grounds that the investigation into Broadbent's attempted murder
was still pending. The ICC also referred Harvey to the
Classification Service Representative (CSR) for a 90 day ad-seg
extension. The ICC reviewed Harvey's retention in ad-seg three
times: on July 16, 2003, October 1, 2003, and December 16, 2003.
Each time, the ICC elected to retain Harvey in ad-seg for 90 day
extensions pending the completion of the investigation into
Broadbent's attempted murder. On January 7, 2004, the ICC
released Harvey from ad-seg because the investigation into the
stabbing had been concluded and Harvey was no longer deemed a
focus of the investigation.
In its initial order of review, the court dismissed Harvey's
due process and Eighth Amendment claims, but found that Harvey's
allegations that his placement in ad-seg was based on racial discrimination stated a cognizable § 1983 claim
for damages against S. Wheeler and L. Polk for violation of the
Equal Protection Clause.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment is properly granted "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
Corp., 477 U.S. at 324 (citations omitted).
Where, the moving party bears the burden of proof at trial, he
must come forward with evidence which would entitle him to a
directed verdict if the evidence went uncontroverted at trial.
See Houghton v. Smith, 965 F.2d 1532, 1536 (9th Cir. 1992).
He must establish the absence of a genuine issue of fact on each
issue material to his affirmative defense. Id. at 1537. When
the moving party has come forward with this evidence, the burden
shifts to the non-movant to set forth specific facts showing the
existence of a genuine issue of fact.
A verified complaint 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 complaint here has a verification
section that, liberally construed, amounts to a statement that
the complaint is made under penalty of perjury. The complaint
therefore is among the evidence that will be considered.
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.
EQUAL PROTECTION CLAIM
Harvey claims that his placement in ad-seg was based on racial
discrimination in violation of the Fourteenth Amendment's Equal
Proof of racially discriminatory intent or purpose is required
to uphold a racial discrimination claim; the Equal Protection
Clause of the Fourteenth Amendment is not violated by
unintentional conduct which has a disparate impact on minorities.
See Washington v. Davis, 426 U.S. 229, 239-40 (1976).
Discriminatory intent may be proved by direct or circumstantial
evidence. See Lowe v. City of Monrovia, 775 F.2d 998, 1011
(9th Cir. 1985), amended on other grounds, 784 F.2d 1407 (9th
Cir. 1986). Where a plaintiff relies solely upon instances of
allegedly disparate treatment, he must establish a "clear
pattern, unexplainable on grounds other than race." Arlington
Heights v. Metropolitan Housing Corp., 429 U.S. 252, 266 (1977). Under the undisputed facts in the record, Harvey's segregation
was not based on racial discrimination. Instead, his placement in
ad-seg was based on his involvement in various incidents which
occurred leading up to the attempted murder of officer Broadbent.
After the stabbing on June 21, 2003, prison officials began to
investigate whether or not Harvey should be segregated. Between
June 21 and June 27, 2003, when Harvey was placed in ad-seg,
officials assessed various prison records. These records
indicated Harvey's possible affiliation with Broadbent's
stabbing. In the months prior to the stabbing, Harvey had been
associated with prison gang members and had become increasingly
disrespectful toward prison officials and staff. Officials had
obtained confidential information that Harvey had stated "there
was a green light" on staff in his unit. This information gave
officials sufficient reason to suspect that Harvey was connected
to the attempted murder. Accordingly, officials determined Harvey
should be placed in ad-seg pending a further investigation into
the conspiracy to murder a correctional officer.
The prison officials' decision to place and retain Harvey in
ad-seg pending an investigation was based on legitimate
penological interests. In Turner v. Safley, 482 U.S. 78 (1987),
the Court reiterated the need for judicial deference to the
problems of prison administration. The Court held that when a
prison regulation or practice impinges on inmates' constitutional
rights, the regulation or practice is valid if it is reasonably
related to legitimate penological interests. Id. at 89.
Harvey's placement in ad-seg pending investigation served the
purpose of furthering prison safety for both prison staff and
other inmates. Harvey was "deemed a threat to the safety and
security of [the] institution if [he] were to remain in the
General Population." Reasons for Placement, Cattermole Decl., Ex.
C. There was a valid, rational connection between placing Harvey
in ad-seg and the legitimate government interest put forward to
justify it. That is, Harvey was only placed in ad-seg to ensure
prison safety. As soon as it was determined that Harvey was not
affiliated with the stabbing, he was released from ad-seg to the general population.
Harvey has not raised a triable issue of fact that his
segregation was based on racial discrimination. His placement in
ad-seg was based on evidence of his possible connection to the
attempted murder, rather than due to discrimination against black
inmates in Pelican Bay. The fact that Harvey was suspected of
participating in the attempted murder plan was explainable on
grounds other than race: the undisputed evidence shows that he
had become increasingly hostile to prison guards over the
preceding months, he was on the scene when the stabbing occurred,
and he had previously threatened violence toward prison
officials. Harvey may have thought his segregation to be the
result of his race, but his misinterpretation is not evidence.
His placement in ad-seg resulted from his suspected affiliation
with the stabbing.
Harvey's conclusory allegations that only black inmates were
suspected in the attempted murder and placed in ad-seg, does not
merit a different conclusion. See Leer v. Murphy,
844 F.2d 628, 633 (9th Cir. 1988) (conclusory allegations insufficient to
defeat summary judgment). His allegations are not enough to put
into question the valid reasons for which he was placed in
ad-seg. There is no genuine issue of material fact on Harvey's
equal protection claim. Defendants are entitled to summary
judgment as a matter of law. See Celotex Corp.,
477 U.S. at 323. CONCLUSION
For the foregoing reasons, defendants' motion for summary
judgment (Doc # 13) is GRANTED.
The clerk shall enter judgment in defendants' favor and against
plaintiff, and shall close the file.
© 1992-2005 VersusLaw Inc.