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December 6, 2005.

JOE McGRATH; et al., Defendants.

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



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


  This action concerns Edward Tolbert'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 inmate Browning outside the Facility B Chapel area, where some inmates were attending a Muslim religious service. Tolbert was among those inmates at the Muslim service. During the attack, several inmates who were attending the Muslim service began to rise from their kneeling positions. Correctional officers interpreted this to be an apparent attempt to join inmate Browning in the attack on correctional officer Broadbent. Correctional officers were able to stop the inmates before they reached Broadbent.

  Tolbert does not dispute that several inmates at the service began to rise, but urges that they did so for reasons different from those urged by defendants. Tolbert states that, when an alarm sounds, inmates are instructed to exit the chapel and go to a designated spot to await further instructions. However, he offers no evidence that such instructions were given on the date in question. He also states that "it is a prison-mentality instinct to go on the alert against possible attacks when something happens near-by. Several Muslim inmates, caught by the surprise of an alarm and attack in their vicinity, began to get up to exit the chapel area while being cautious of their surroundings." Plaintiff's Statement Of Disputed Factual Issues, p. 2.

  After the attack, investigators learned that an inmate had attempted to warn a staff member about the attack by leaving a letter for that staff member earlier in the day. The letter informed the staff that inmates who were part of a group known as Ansar El Muhammed (AEM) were planning an attack. The staff member for whom the letter was left was not on duty to receive the letter in time to avoid the attack.

  Five days after the attack, Tolbert was put in ad-seg and received an ad-seg lock-up notice (CDC-114 form). The June 26 ad-seg lock-up notice stated Tolbert was placed in ad-seg "pending investigation of conspiracy to murder a peace officer. Conspiracy to murder a peace officer is an offense [for] which a SHU term may be assessed. Therefore you are deemed a threat to the safety and security of this institution if you were to remain in the general population." Complaint, Attach. B. An Institutional Classification Committee ("ICC") hearing was held on July 2, 2003. Defendant Polk described the reason Tolbert was chosen for ad-seg placement during the investigation of the stabbing and alleged conspiracy:
Following the incident, investigators put together a list of inmates, based in part on information from confidential informants, whom they believed were part of the AEM. The AEM is a group of Black Muslims, many of whom have ties to violent street gangs. Inmate Tolbert was among the inmates on the list of AEM members, and this information was made available to me and others who took part in the decision to segregate inmate Tolbert during the investigation.
Polk Decl., ¶ 6.*fn1 Tolbert states that he was told at the ICC hearing "that the Muslim service sign-up sheet was utilized to identify Muslim inmates." Tolbert Decl. in Opposition, ¶ 8.

  Although Tolbert does not dispute defendants' description of the AEM's gang roots, he states that he "is not aware of any religious affiliations to Islam." Plaintiff's Statement Of Disputed Factual Issues, p. 2. Tolbert also urges that he did not qualify for membership in the AEM because he was from the Crips gang. Due to the antagonism between the Bloods and Crips gangs, "plaintiff simply cannot be apart [sic] of the `AEM' because of a past affiliation with a Crip organization." Id. at 3. Tolbert offers no evidence of a public charter of the AEM and does not explain how he is competent to describe the AEM's membership criteria. Evidence submitted under seal indicates that the AEM does not exclude inmates who were in the Crips gang; to the contrary, the AEM considers Crips inmates to be potential recruits.

  Periodic reviews of Tolbert's ad-seg placement were conducted. On September 24, 2003 and December 3, 2003, the ICC determined that Tolbert would be kept in ad-seg.

  In November 2003, information received from a confidential informant indicated that Tolbert likely had advance notice of the planned attack on Broadbent. The confidential document filed under seal described inmate activity surrounding the attack and Muslim service that day. The document explained that persons at the Muslim service were privy to the plan to stab the correctional officer.

  Once investigators determined that Tolbert was no longer a focus of the investigation into the attempted murder, Tolbert was released from ad-seg on January 7, 2004.


  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 ...

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