United States District Court, N.D. California
December 6, 2005.
EDWARD TOLBERT, Plaintiff,
JOE McGRATH; et al., Defendants.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER GRANTING SUMMARY JUDGMENT MOTION
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
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
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,
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
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
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
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
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, 477 U.S. at 324 (citations omitted).
Where, as is the situation with defendants' qualified immunity
defense, 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; see
also Anderson, 477 U.S. at 248. When the defendant-movant 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 on the defense.
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 part of the evidence that will be
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.
A. Due Process Claim
Tolbert claims that his placement in ad-seg violated his right
to due process, focusing on the sufficiency of the evidence to
support the decision to place him in ad-seg.
The Due Process Clause of the Fourteenth Amendment protects
individuals against governmental deprivations of life, liberty or
property without due process of law. Changes in conditions of
confinement for a prison inmate may amount to a deprivation of a
constitutionally protected liberty interest, provided that the
liberty interest in question is one of real substance. Sandin v.
Conner, 515 U.S. 472, 477-87 (1995). When prison officials
initially determine whether a prisoner is to be segregated for
administrative reasons and a liberty interest of real substance
is implicated, due process requires that they hold an informal
nonadversary hearing within a reasonable time after the prisoner
is segregated, inform the prisoner of the charges against him or
the reasons segregation is being considered, and allow the
prisoner to present his views. Toussaint v. McCarthy,
801 F.2d 1080, 1100 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).
Due process also requires that there be an evidentiary basis for
the prison officials' decision to place an inmate in segregation
for administrative reasons. Superintendent v. Hill, 472 U.S. 445, 455 (1985); Toussaint, 801 F.2d at 1104-05. This
standard is met if there is "some evidence" from which the
conclusion of the administrative tribunal could be deduced.
Hill, 472 U.S. at 455; Toussaint, 801 F.2d at 1105.
Tolbert was placed in ad-seg on June 26, 2003. Within a week,
on July 2, 2003, he had a hearing before the ICC. At this
hearing, the ICC determined that it was necessary for Tolbert to
remain in ad-seg pending completion of the investigation into the
attempted murder of Broadbent. Tolbert participated in the
hearing and stated he understood the committee's action. Tolbert
received the CDC-114 lockup notice the day he was placed in
ad-seg, was granted a hearing within a reasonable time after his
placement in ad-seg, was informed of the charges against him, and
was permitted to voice his views. The ICC procedures followed by
prison staff did not violate Tolbert's due process rights.
Tolbert alleges that there was not sufficient evidence to place
him in ad-seg and his due process rights were thus violated by
his segregation. The relevant question in evaluating this claim
is whether "there is any evidence in the record that could
support the conclusion" reached by the officials to place Tolbert
in ad-seg. Hill, 472 U.S. at 455-456. Decisions supported by
any evidence are not "subject to second guessing upon review."
Id. at 455.
Tolbert's placement in ad-seg was based on "some evidence" and
furthered legitimate penological goals of security in Pelican
Bay. There was sufficient evidence for officials to suspect
Tolbert's involvement in the attempted murder. At the time of the
attack, it appeared to prison officials that several inmates
attending the service were attempting to join Browning in the
stabbing. It is not clear whether all, or less than all, of the
inmates attending the service attempted to aid Browning.*fn2
However, there is some evidence that inmates present at the
service were privy to, and attempted to contribute to the attack.
Segregating inmates who were present at the service, including
Tolbert, served a legitimate penological interest of maintaining
safety until the investigation had been completed. More importantly, there was some evidence that the attack on
Broadbent was planned by the AEM, of which Tolbert was thought to
be a member based on confidential information that the staff had.
There was some evidence that Browning did not act alone and that
other prisoners were involved in the planning and perpetration of
the attempted murder. This was sufficient evidence to justify
Tolbert's placement in ad-seg during the investigation. Tolbert's
segregation promoted prison safety by ensuring that a potential
participant in the attempted murder was unable to collaborate or
pose further harm to staff and other inmates while investigations
Tolbert's placement in ad-seg was the type of placement
contemplated by the Court in Hewitt v. Helms, 459 U.S. 460,
473-74 (1983), where the Court recognized the occasional need to
segregate inmates during investigations in prison and recognized
that numerous factors may inform prison officials' determinations
as to the severity of a security threat. The Court held that an
informal non-adversary review of the evidence satisfied due
process for an inmate placed in ad-seg during investigation of an
outbreak of violence at the prison. "In the volatile atmosphere
of a prison, an inmate easily may constitute an unacceptable
threat to the safety of other prisoners and guards even if he
himself has committed no misconduct; rumor, reputation, and even
more imponderable factors may suffice to spark potentially
disastrous incidents. The judgment of prison officials in this
context, like that of those making parole decisions, turns
largely on `purely subjective evaluations and on predictions of
future behavior.'" Id. at 474. There is no evidence here that
ad-seg was "used as a pretext for indefinite confinement" of
Tolbert. See id. at 477 n. 9. During the investigation,
officials received information that suggested Tolbert was
connected to the stabbing, although he eventually was released
after officials later determined that the investigation had
concluded and Tolbert was "no longer a focus of the
investigation." Patterson Decl., Exh. 6.
Tolbert makes several points to attempt to show the lack of
evidentiary support for the decision to place him in ad-seg.
First, he contends that he could not have been in the AEM because
he was from the Crips gang. This contention is unpersuasive
because Tolbert has not offered any competent evidence that AEM
excluded Crips gang members and defendants offered evidence that showed that AEM considers inmates from the Crips gang to be
potential recruits. Tolbert has not raised a triable issue of
fact that it was not possible for him to be in AEM.
Tolbert also urges that the November 2003 confidential
memorandum could not be the basis for his placement in ad-seg
because it was not prepared until four months after his
placement. This is correct but irrelevant because defendants do
not argue that the placement was based on that confidential
memorandum. Other confidential information was used to place and
keep Tolbert in ad-seg. See Complaint, attachment F (CDC-1030
Confidential Information Disclosure Form dated August 25, 2003,
stated that information had been obtained from confidential
memoranda dated June 26, 2003, and July 8, 10, 15, and 16, 2003).
Tolbert knew even before the CDC-1030 form was issued that
confidential information had been used, as evidenced by the fact
that he had complained in an August 7, 2003 inmate appeal about
the use of "unsubstantiated confidential information" to place
him in ad-seg. Complaint, attachment A. Tolbert points to his
lock-up order as evidence that there was no confidential
information used in the initial placement. The relevant portion
of the CDC-114 states: "if confidential information used, date
of disclosure: __/__/__." Complaint, attachment B. Tolbert argues
that "nothing is marked in [the confidential information] box
because no confidential information had been used." Plaintiff's
Brief In Opposition, p. 4. The absence of a notation that
confidential information was used for the lock-up order is not
enough to create a triable issue of fact that defendants had no
confidential information at the time they placed him in ad-seg.
He concedes he was told at the time of placement that he was
placed in ad-seg for his "possible involvement in an attack on a
correctional officer." Tolbert Decl., ¶ 4; Complaint, ¶ 9.
Tolbert also argues that, because he was eventually cleared of
involvement and released, he never should have been put in
ad-seg. This argument misunderstands the nature of his placement
in ad-seg. One need not be a wrongdoer to be put in ad-seg during
an investigation, as Hewitt explained. Even if one is suspected
of being a wrongdoer, the fact that he is later exonerated does
not prove that the earlier suspicion was unwarranted.
Tolbert has failed to show a triable issue of fact on his claim
that he was not afforded due process when he was placed in ad-seg. Defendants are entitled to
summary judgment on this claim.
B. Equal Protection Claim
"The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall `deny to any person within its
jurisdiction the equal protection of the laws,' which is
essentially a direction that all persons similarly situated
should be treated alike." City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe,
457 U.S. 202, 216 (1982)). When challenging his treatment with regard
to other prisoners, a prisoner must show that his treatment is
invidiously dissimilar to that received by other inmates. A
prison classification based on race is immediately suspect and is
subject to the same strict scrutiny as a racial classification
outside prison; prison officials must therefore demonstrate that
the race-based policy or action is narrowly tailored to serve a
compelling state interest. See Johnson v. California,
125 S. Ct. 1141, 1148-49 (2005) (race-based cell assignment policy). For
distinctions drawn among prisoners other than those based on
race, strict scrutiny is inappropriate to test the infringement
of prisoners' constitutional rights. Turner v. Safley,
482 U.S. 78, 89 (1987); see Johnson, 125 S. Ct. at 1148-49. Where a
prison regulation (other than a race-based one) impinges on
inmates' constitutional rights, the regulation or practice is
valid if it is reasonably related to legitimate penological
interests. See Turner, 482 U.S. at 89. In short, a race
discrimination claim is analyzed under a strict scrutiny standard
and a religious discrimination claim analyzed under the less
restrictive Turner standard.
The inmate making an equal protection claim must demonstrate
discriminatory intent or purpose by the defendants. See
Washington v. Davis, 426 U.S. 229, 239-40 (1976); Jeffers v.
Gomez, 267 F.3d 895, 913-14 (9th Cir. 2001) (reversing denial of
summary judgment based on qualified immunity on claim that prison
guard targeted black inmates while shooting to quell prison riot;
because plaintiff alleged only that defendant shot at him, it was
irrelevant that all but one of the inmates shot and all inmates
suffering serious stab wounds in Hispanic-black riot were black).
Where a policy is suspect on its face (e.g., a policy explicitly
based on race), the plaintiff need not prove discriminatory intent or impact. See Walker v.
Gomez, 370 F.3d 969, 973-74 (9th Cir. 2004).
Tolbert has failed to raise a triable issue of fact that he was
subjected to religious or race discrimination. The only evidence
in support of the discrimination claim is from Tolbert's own
mouth, and he describes it quite vaguely by omitting reference to
the speaker's identity or the speaker's particular words.
Tolbert's evidence consists of these statements by him: "I was
told at my initial classification that the Muslim services
sign-up sheet was utilized to identify Muslim inmates." Tolbert
Decl., ¶ 8. "[P]laintiff was personally told during his initial
classification that the security squad used the Muslim service
sign-up sheet as a guide to place inmates into administrative
segregation." Plaintiff's Statement Of Disputed Factual Issues,
p. 2. "Because the plaintiff was on the Muslim service attendance
list, he was deemed a threat to the security of the institution.
Because he was classified to the Black ethnic group, he was
deemed a threat to the security of the institution. Other
non-Black inmates on the Muslim attendance sheet were not locked
up." Complaint, p. 5. Tolbert does not state who told him this
information, how big a part of the decision the Muslim service
sign-up sheet played in the ad-seg decision, whether there
actually were any non-Black Muslims at the service, and whether
anyone not at the service was put in ad-seg.
Even accepting Tolbert's evidence as true, it does not
establish or support an inference that either of the defendants
discriminated against him. Tolbert did not provide evidence that
either defendant made the statement that he contends shows
discrimination and did not provide evidence that either defendant
adopted or failed to repudiate that statement.
Tolbert also fails to raise a triable issue of fact that he was
treated differently from other inmates because he was a Muslim,
even if one accepts as true that the Muslim service list was
consulted by the ICC. Tolbert alleged in his complaint that "[n]o
inmates from the Christian or Catholic services were targeted,"
Complaint, p. 6, but fails to provide any evidence showing the
existence of similarly situated inmates that might make his
Muslims-were-treated-differently argument persuasive.
Specifically, there is no evidence that the stabbing occurred
near a Christian or Catholic service, there is no evidence that there was even a
Christian or Catholic service in progress at the time of the
stabbing, and there is no evidence that prison officials had any
information that AEM or the assailant or the stabbing had any
connection to a Christian or Catholic inmate group. Tolbert also
provides no evidence of any other incident where prison officials
had information that an inmate group whose membership was
restricted to Christians and Catholics had planned the attack on
a guard but chose not to put inmates in those groups in ad-seg.
Prison officials had access to information that showed at least a
potential connection between the stabbing and the inmates at the
Muslim service that day: the stabbing happened outside the
chapel, the stabbing was done by an inmate on the chapel service
list,*fn3 and inmates in the chapel began to rise in what
appeared to officials to be taking steps to aid in the attack.
Tolbert also has failed to show a triable issue of fact that
his placement in ad-seg was based on race because he has not
shown similarly-situated inmates being treated differently. He
offered no evidence that prison officials had any information
that connected non-Black inmates to the AEM. He has not shown
that similarly situated non-Black inmates were not placed in
ad-seg. For example, he has not shown that prison officials
suspected non-Black inmates of being connected to the attack or
to AEM and has not shown that prison officials placed any Black
inmates in ad-seg who were not believed to be part of AEM.
Tolbert apparently tries to support his race discrimination claim
by urging that he could not have been in AEM because he had been
in the Crips gang and the AEM was made up of only Bloods and 415
gang members; however, as explained earlier, he has not provided
any competent evidence that inmates who had been in the Crips
gang were precluded from joining the AEM.
When a conspiracy exists and limits its membership to persons
of a particular race and religion, that conspiracy cannot be
insulated from scrutiny by crying foul when the people
investigated share the characteristics required by the conspiring
group for membership in it. Here, the undisputed evidence shows
that prison officials were investigating an attack connected to a prison group whose membership was limited to Black Muslims. Even
if one accepts as true the statement that some prison official
told Tolbert that the Muslim service attendance list had been
used in determining who would be placed in ad-seg, that does not
itself show or support an inference of discriminatory purpose or
intent under the particular circumstances.
Tolbert has not presented evidence sufficient to overcome
defendants' showing that his placement in ad-seg was based on his
perceived membership in the AEM and connection to the stabbing
rather than because he was Black or Muslim. There is no genuine
issue of material fact on Tolbert's equal protection claim. On
the undisputed evidence, defendants are entitled to summary
C. Qualified Immunity
The defense of qualified immunity protects "government
officials . . . from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
rule of qualified immunity "provides ample protection to all but
the plainly incompetent or those who knowingly violate the law."
Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)).
The evidence in the record establishes that Tolbert's rights
under the Fourteenth Amendment's Due Process Clause and Equal
Protection Clause were not violated. Defendants therefore are
entitled to prevail as a matter of law on their defense of
qualified immunity to the § 1983 claims. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (defense of qualified
immunity protects "government officials . . . from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known); Saucier v. Katz,
533 U.S. 194, 201 (2001) (threshold question in qualified immunity
analysis is: "Taken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer's
conduct violated a constitutional right?"). CONCLUSION
For the foregoing reasons, defendants' motion for summary
judgment is GRANTED. (Docket # 31.) Judgment will be entered in
defendants' favor and against plaintiff. The clerk shall close
IT IS SO ORDERED.
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