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December 6, 2005.

DALE HARVEY, Plaintiff,
JOE McGRATH, et al., Defendants.

The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge


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 noted.

  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.


  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 ...

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