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 ...