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Reno Fuentes Rios v. J.E. Tilton


August 22, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


I. Introduction

Plaintiff proceeds, in forma pauperis and without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff is a state prisoner serving a life sentence in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), presently incarcerated at California State Prison-Corcoran. Pending for decision is defendants' second amended motion for summary judgment filed November 19, 2010.*fn1 (Dkt. No. 83.) Plaintiff filed an opposition (Dkt. No. 87); defendants filed a reply (Dkt. No. 92). For the following reasons, this court recommends that defendants' motion be granted in part and denied in part.

II. Background

This action proceeds on plaintiff's original complaint filed April 25, 2007 (Dkt. No. 1), against the following five defendants: J.E. Tilton (former CDCR Secretary);*fn2 T. Lockwood (Chief, CDCR Regulation and Policy Management Branch, Corrections Standards Authority); Correctional Officers K. Brandon and G. Parker (acting in their capacities as Institutional Gang Investigators); and Correctional Counselor J.E. Mayfield.*fn3 Plaintiff alleges that, while he was incarcerated at California State Prison-Sacramento, these defendants relied on false and inadequate information to validate him as a prison gang associate and place him in security housing. Plaintiff challenges his validation and placement decisions on due process grounds,*fn4 and further claims that defendants acted in retaliation against plaintiff for exercising his First Amendment rights.*fn5

On March 3, 2009, the district judge adopted the findings and recommendations of the former magistrate judge, and granted defendants' motion to dismiss plaintiff's due process claim against defendant Mayfield, but not plaintiff's retaliation claim against Mayfield. (Dkt. Nos. 30, 31.) This action now proceeds on plaintiff's retaliation claims against Mayfield and Parker, and plaintiff's due process claims against all defendants except Mayfield.

Plaintiff alleges that CDCR traditionally classified all Hispanic/Mexican inmates as members of one of three "street gangs," based upon the inmate's place of arrest: "Southern Hispanic" (arrested in Southern California), "Northern Hispanic" (arrested in Northern California), and "Bull Dogs Hispanic" (arrested in Central California). (Cmplt. at 9-10.) Plaintiff states that he was first classified as a "Northern Hispanic," because he was arrested in Northern California, then reclassified as a "Southern Hispanic," based on his Southern California residence. (Id. at 10.) However, plaintiff asserts that he has at all times been a "foreign Mexican national," without any gang affiliations, either in or out of prison. (Id.)

Plaintiff alleges that, in 2004, CDCR improperly reclassified him as a "Border Brother," which plaintiff asserts was a "new label for all the foreign Mexican national inmates," implemented "in conspiracy to foment most ethnic group gangs against the foreign Mexican national[s] not affiliated to a gang[]." (Id. at 11.) Plaintiff was successful in having the "Border Brother" designation dropped, pursuant to an administrative grievance plaintiff filed on September 21, 2004. (Id. at 11-12.) That grievance was initially investigated by defendant Parker, who found in pertinent part that plaintiff was not at that time a member or associate of a prison gang. (Id. at 11.)

Plaintiff filed a second administrative grievance on December 12, 2005, in which he sought to advance his work status and reduce his custody status, as recommended to him by the Board of Parole Hearings ("BPH") in 2004, and in anticipation of his 2006 BPH hearing. (Id. at 12-13.) Plaintiff asserts that he filed this grievance due to the alleged failure of defendant Mayfield to honor plaintiff's "request to remove any gang label and to provide a reasonable program." (Id. at 12.) That grievance, which was ultimately denied, was initially investigated by defendant Mayfield. (Id. at 13.) Plaintiff contends that Mayfield thereafter "recommended plaintiff[] for investigation as a prison gang validation in retaliation against plaintiff['s] welfare."


On June 7, 2006, defendant Brandon informed plaintiff that he was being investigated for a gang validation, and plaintiff was placed in security housing pending completion of the investigation. (Id. at 13-14.) On June 8, 2006, defendant Parker interviewed plaintiff and submitted a confidential information package to CDCR's Law Enforcement Investigation Unit ("LEIU"), recommending that plaintiff be validated as an associate of the Mexican Mafia ("EME") prison gang. (Id. at 13.)

On June 18, 2006, plaintiff filed an administrative grievance challenging his validation investigation, alleging that Brandon and Parker used "fraudulently confidential information through the [LEIU] in violation of the California Penal Codes and the California Code of Regulations, Title 15," also referred to as "slanderous false accusation[s]." (Id. at 15, 16.) On July 26, 2006, the LEIU validated plaintiff as an associate of the EME prison gang. (Id.) On November 1, 2006, Warden Malfi recommended that plaintiff be placed in "the Maximum Security Housing Unit ('SHU') for an indeterminate sentence of six (6) years*fn6 as [an] active Mexican Mafia 'EME' prison gang associate[]." (Id. at 17.) On December 28, 2006, plaintiff's grievance challenging his validation was denied at the Third Level Review. (Id. at 17.)

Meanwhile, plaintiff's parole hearing scheduled for June 22, 2006, was postponed until January 18, 2007, when parole was denied. (Id. at 16, 17.) On February 15, 2007, plaintiff was transferred to the SHU at California State Prison-Corcoran. (Id. at 17.)

Plaintiff alleges that the five "source items" relied upon to validate his gang association "was gathered by second hand unreliable sources and by staff involved in racketeering activities (RICO) law, with the [CDCR]." (Id. at 14.) Plaintiff alleges that the information "did not compl[y] with the standard provisions governed by the [CDCR] gang management policy and the California Code of Regulations, Title 15, as defined [by] the CDC-115 Disciplinary Rule Violation Report (RVR) of inmate[] misconduct." (Id. at 15.)

Plaintiff seeks a declaratory judgment that his validation and placement are unconstitutional; an order granting his fourteen requests for injunctive relief, which include plaintiff's placement back into the prison general population, expungement of the challenged findings from plaintiff's central file, and the cessation or implementation of several policies and practices within CDCR; the costs of suit and such other relief as the court deems appropriate. (Id. at 19-24.)

III. Legal Standards

A. Legal Standards for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), quoting Federal Rule of Civil Procedure 56(c). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 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. Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586, n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Anderson, 477 U.S. at 248; T.W. Elec. Serv., 809 F.2d at 631.

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e), Advisory Committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586 (citation omitted).

On May 15, 2009 (Dkt. No. 16), the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 29.) See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

IV. Undisputed Facts

The following undisputed facts ("UF") are either undisputed by the parties or, following the court's review of the evidence, have been deemed undisputed.*fn7

1. Plaintiff is a state prisoner in the custody of CDCR, serving a life sentence that commenced in 1989; plaintiff is currently incarcerated in the SHU at California State Prison -Corcoran ("CSP-COR").

2. At all times relevant to this action, plaintiff was incarcerated at California State Prison-Sacramento ("CSP-SAC").

3. At all times relevant to this action, all defendants were employees of CDCR: Tilton was Secretary of CDCR; Lockwood was Chief of the Corrections Standards Authority, Regulation and Policy Management Branch; Brandon was a Lieutenant and Institutional Gang Investigator ("IGI") at CSP-SAC; Parker was an Assistant IGI; and Mayfield was a Correctional Counselor at CSP-SAC.

4. On September 21, 2004, plaintiff filed an administrative grievance (Log No. SAC-C-04-2235), alleging ethnic discrimination, pursuant to which he sought to be classified by prison officials as a "foreigner 'Mexican National,'" rather than a "Border Brother," which plaintiff asserted carried both racist and gang connotations. (Dkt. No. 83-22 (Dfs. Exh. S); Dkt. No. 87-3 at 67 through Dkt. No. 87-4 at 16 (Pltf. Exh. K).)

a. At the Informal Level Review, defendant Parker interviewed plaintiff and reviewed his file; Parker concluded that "there was insufficient information to validate Rios as a member or associate of any prison gang or disruptive group," but cautioned that "Rios' behavior should be closely monitored whenever gang activity or association is present." On December 2, 2004, Parker partially granted plaintiff's grievance, noting that plaintiff's "CDC 812-B will be updated to 'none' by the Institutional Gang Investigator." (Dkt. No. 83-22 at 4; see also Dkt. No. 83-7 at 2-3 (Parker Decl.); Dkt. No. 87-1 at 26-27 ¶ 39 (Pltf. UF).)

b. On February 3, 2005, at the First Level Review, Sergeant Roth denied plaintiff's grievance on the ground that the terms "Mexican National" and "Border Brother" were official and interchangeable designations that were not discriminatory and did not infer association with any gang or disruptive group. (Dkt. No. 83-22 at 9.)

c. However, on March 7, 2005, at the Second Level Review, the warden partially granted the appeal, explaining (Dkt. No. 87-4 at 4):

A review of your Central File reveals you are identified as Mexican, birth place unknown, with a current USINS Warrant number. Your CDC-12, Non Confidential Critical Information Sheet, lists no known current gang affiliation. The C Facility housing board has listed you as Border Brother for housing purposes only, not as gang identifier/affiliation. The 'Border Brother' labels on the picture board are currently under revision, with all 'Border Brother' labels being changed to 'Mexican National;' however, the C Facility housing board will list you as a Mexican National for housing purposes only. This doesn't change your housing status. You will not receive a chrono identifying you as a Mexican National, as this information is already contained in your central file.

d. The Third Level Review, issued June 24, 2005, denied plaintiff's grievance. Again noting an absence of evidence that plaintiff had any gang affiliation, the final decision explained (id. at 5):

On May 13, 2005, the institution was contacted at the Director's Level Review (DLR) to obtain additional information. Correctional Lieutenant (Lt.) Banks confirmed that the Facility "C" picture board has been revised. Lt. Banks states that the identifier of "Border Brothers" is no longer used on the picture board and "Mexican National" is used in its place. In this case, the institution has taken the appropriate action. Justification for intervention at the DLR has not been established.

5. On December 12, 2005, plaintiff filed another administrative grievance (Log No. SAC-C-06-0599), seeking to reduce his custody status, and advance his work status, consistent with the recommendations of the Board of Prison Terms. (Dkt. No. 83-23 (Dfs. Exh. T); Dkt. No. 87-3 at 51-66 (Pltf. Exh. J).) Plaintiff challenged the decision made at his most recent annual classification assessment, on December 5, 2005, denying plaintiff's request to modify his "close-B" status. (Dkt. No. 83-23 at 2.) Defendant Mayfield participated in that committee decision. (Id. at 10; see also id. at 13.) Plaintiff asserted that he was "erroneously placed as A-2B status with close B-custody," and requested that he be reclassified as "A-1-A," with reduced custody status of "Med-A," "so I could participate into better program assignment for my develop benefits (sic) and to be assigned for special skills not supporting services. . . ." (Id. at 2.)

a. The grievance was partially granted at the Informal Level Review, on January 3, 2006, by correctional counselor Platt, who noted that plaintiff could be reclassified "A-1-A" when his work assignment was changed, but that he needed to serve a full two years in "close-B" custody status. (Dkt. No. 83-23 at 2.)

b. Defendant Mayfield interviewed plaintiff at the First Level Review, on April 5, 2006, and concluded that plaintiff's classification and custody status were correct; the grievance was denied on April 11, 2006. (Dkt. No. 83-23 at 3.)

c. On April 16, 2006, plaintiff challenged Mayfield's calculation of the two-year time period relative to his "close-B" status, asserted that his file contained inaccurate information regarding his skill levels, and contended that the "[l]ibrary does have space for a Mexican, half time Northener -- half time Mexican National." (Id.) The grievance was denied at the Second Level Review by Warden Malfi on May 16, 2006. (Id. at 3, 21-23.)

d. On September 5, 2006, the Chief of Inmate Appeals, N. Grannis, denied plaintiff's grievance at the Third Level Review, on the ground that the December 5, 2005 classification decision was correct, noting that plaintiff could be considered for a custody reduction to "medium A" at his next classification meeting in November 2006. (Id. at 24-25.)

6. Meanwhile, on June 7, 2006, plaintiff was transferred to the Administrative Segregation Unit ("ASU") at CSP-SAC, pending completion of an investigation into plaintiff's gang affiliations. Defendant Lt. Brandon provided plaintiff with a copy of his CDC 114-D ("Administrative Segregation Unit Placement Notice"), dated June 7, 2006, and informed plaintiff of the information upon which the ASU placement was made. (Dkt. No. 83-14 (Dfs. Exh. K); Dkt. No. 83-8 at 2 (Dfs. Exh. E); Dkt. No. 87-1 at 15 ¶¶ 16, 17 (Pltf. UF); Dkt. No. 87-2 at 76, 83-4 ¶¶ 7, 20 (Pltf. Decl.) .)

7. On June 8, 2006, defendant Parker interviewed plaintiff and, based on the information collected by Brandon, submitted to the LEIU a CDC-128 General Chrono recommending that plaintiff be validated as an associate of the Mexican Mafia ("EME") prison gang (hereafter "EME"). (Dkt. No. 83-8 at 2 (Dfs. Exh. E).) The recommendation was based on the following information compiled by Lt. Brandon; each item was reported on a CDC 1030 Chrono (Confidential Information Disclosure Form), prepared by Parker, and dated June 7, 2006:

a. A June 1, 2006 confidential memorandum prepared by Parker, noted that plaintiff's name was on a list of active EME associates prepared by another inmate/validated EME associate, intended for receipt by a third inmate/validated EME member.*fn8 (Dkt. No. 83-8 at 2 (Dfs. Exh. E); Dkt. No. 85-13 (Dfs. Exh. J).)

b. A January 26, 2006 debriefing report prepared by Sergeant Bales, identified plaintiff as a "mesa" member of the EME gang, working under the direction of another inmate/ validated EME associate; the term "mesa" refers to an appointed leadership position governed by EME members housed in the SHU. (Dkt. No. 83-8 at 2 (Dfs. Exh. E); Dkt. No. 85-12 (Dfs. Exh. I).)

c. An October 21, 2005 confidential memorandum prepared by Officer Zamudio, stated that plaintiff ordered an assault to benefit EME, and showed letters he received from another inmate/validated EME member. (Dkt. No. 83-8 at 2 (Dfs. Exh. E); Dkt. No. 85-11 (Dfs. Exh. H).)

d. A February 4, 2004 "confidential CDC 128 B" prepared by Officer Wheeler, stated that plaintiff authored and passed a note to an inmate/validated EME associate, requesting that the inmate assault his own cell mate, another validated EME associate. (Dkt. No. 83-8 at 2 (Dfs. Exh. E); Dkt. No. 85-10 (Dfs. Exh. G).)

e. A March 25, 2003 debriefing report prepared by Sergeant Bales, stated that plaintiff sold drugs under the authority of another inmate/validated EME associate. (Dkt. No. 83-8 at 2 (Dfs. Exh. E); Dkt. No. 85-9 (Dfs. Exh. F).)

8. Each of the above-noted CDC 1030 Chronos indicated that the information relied upon was considered reliable because the reporting source incriminated himself in a criminal activity at the time he provided the information; each chrono further provided that disclosure of the underlying information would threaten the safety and security of the institution. (Dkt. Nos. 85-9 through 85-13; see also Dkt. No. 87-2 at 118-19.)

9. On June 8, 2006, when defendant Parker interviewed plaintiff regarding the above-noted information, plaintiff reportedly responded, "I disagree with all the documents submitted. I am a Mexican National and not a gang member. I fe[e]l I have been set up." (Dkt. No. 83-8 (Dfs. Exh. E).)

10. Plaintiff was not provided with the confidential documents themselves. Defendant Parker states that doing so "would create a hazard to the safety and security of the institution [because] each of these [confidential] documents contains other inmates' names and CDC numbers . . . ." Dkt. No. 83-7 at 3 (Parker Decl ¶ 8).)

11. On June 14, 2006, plaintiff appeared for his Initial ASU Review before the ASU Institutional Classification Committee ("ICC"). The ICC decided to retain plaintiff in the ASU pending completion of his validation investigation, and referred plaintiff to the Classification Staff Representative ("CSR") for a 90-day ASU extension. Plaintiff reportedly stated, "I am not an associate of the EME." (Dkt. No. 83-15 (Dfs. Exh. L) (CDC 128-G Chrono, dated June 14, 2006).)

12. On July 3, 2006, the CSR extended plaintiff's ASU placement for 90 days pending completion of plaintiff's validation investigation. (Dkt. No. 83-16 (Dfs. Exh. M) (CDC 128-G Chrono, dated July 14, 2006).)

13. On August 16, 2006, plaintiff again appeared before the ASU ICC, which referred plaintiff to the CSR for a second 90-day ASU extension pending completion of his validation investigation. Plaintiff reportedly stated, "I am not a Mexican Mafia associate. All the information is hearsay." (Dkt. No. 83-17 (Dfs. Exh. N) (CDC 128-G Chrono, dated August 16, 2006).)

14. On September 11, 2006, the CSR extended plaintiff's ASU placement for a third period of 90 days pending completion of plaintiff's validation investigation. (Dkt. No. 83-18 at 2 (Dfs. Exh. O) (CDC 128-G Chrono, September 11, 2006).)

15. On September 27, 2006, three members of the Office of Correctional Safety found, based upon the information contained in the five documents forwarded by defendant Parker, that plaintiff met the requirements for validation as "an associate of the Mexican Mafia (EME) prison gang," citing California Code of Regulations, title 15, section 3387; see also Cal. Code Regs. tit. 15, § 3378(c)(6)) (decision to be made by Office of Correctional Safety). (Dkt. No. 83-21 (Dfs. Exh. R) (CDC 128-B-2 chrono, dated September 27, 2006); Dkt. No. 87-1 at 30 ¶ 45 (Pltf. UF).)

16. On November 1, 2006, plaintiff again appeared before the ASU ICC, which informed plaintiff that the investigation was complete and plaintiff was now validated as an EME associate. The ICC referred plaintiff to the CSR for transfer to the SHU at Pelican Bay State Prison or California State Prison-Corcoran. Plaintiff reportedly stated, "It's all false, I'm not a Mexican Mafia, I'm from Mexico!" (Dkt. No. 83-19 at 2 (Dfs. Exh. P) (CDC 128-G Chrono, dated November 1, 2006); Dkt. No. 87-1 at 30-31 ¶ 47 (Pltf. UF).)

17. On December 11, 2006, the CSR endorsed plaintiff for transfer to the SHU at California State Prison-Corcoran. (Dkt. No. 83-20 at 2 (Dfs. Exh. Q) (CDC 128-G Chrono, dated December 11, 2006).)

18. Meanwhile, on June 18, 2006, plaintiff filed a third administrative grievance (Log No. SAC-S-06-1422), challenging his validation as an EME associate. Plaintiff alleged that the five informational items relied upon were untrue, failed to meet reliability standards, and were "jointly created" by defendants Brandon and Parker, and staff members Bales, Wheeler and Zamudio; plaintiff further alleged that Brandon and Parker acted in retaliation against plaintiff because he filed a civil action.*fn9 (Dkt. No. 87-2 at 116.) (In his deposition, plaintiff clarifies that his instant retaliation claims are made only against Parker and Mayfield. (Dkt. No. 83-4 at 5.) ) Plaintiff asserted that he was not a gang associate and did not pose a threat to the safety and security of the prison. Plaintiff requested that his validation be cancelled and all reference to it removed from his Central File, and that plaintiff be released back to the general population. (Cmplt. at 15 ¶ 24; Dkt. No. 87-2 at 113-21 through Dkt. No. 87-3 at 50 (Pltf. Exhs. H, I).)

a. Informal and First Level Reviews were bypassed. (Dkt. No. 87-2 at 114-15.)

b. Plaintiff's grievance was denied at the Second Level Review, pursuant to defendant Brandon's interview of plaintiff on August 31, 2006, and a finding that each of the five items relied upon to make the validation decision were reliable. (Dkt. No. 87-3 at 1-5.)

c. The Third Level Decision was rendered on December 28, 2006. (Dkt. No. 87-2 at 115; Dkt. No. 87-3 at 29-30.) That decision concluded that the information and procedures relied upon to validate plaintiff were valid and reliable, and that "[t]he appellant has failed to provide any information to support his position that he has been inappropriately validated as an active associate of EME prison gang." (Dkt. No. 87-3 at 30.)

V. Discussion

A. Due Process Claims

Plaintiff challenges his gang validation and security housing placement on due process grounds, against all defendants except Mayfield. (Dkt. No. 30, 31.) Against Brandon and Parker, plaintiff contends that the procedures and evidence supporting his validation were, respectively, inadequate and false. Against Tilton and Lockwood, plaintiff challenges CDCR's formal policies and procedures generally, and contends that his validation reflects CDCR's "underground" policy of housing together inmates of the same ethnicity, amongst gang members and associates, thereby entrapping the unknowing inmate, as it allegedly snared plaintiff. For the reasons that follow, the court finds that summary judgment should be granted in defendants' favor on all of plaintiff's due process claims.

The state regulations governing prison gang validation and security housing are well established. A prisoner's gang involvement is considered "information . . . which is or may be critical to the safety of persons inside or outside" of California prisons. Cal. Code Regs. tit. 15, § 3378(a). In response to this concern, institutional gang investigators are assigned to each prison to investigate allegations of gang involvement. Id., § 3378(c). Allegations that a prisoner is involved in gang activity are to be set forth on a "CDC Form 812-A or B," id., § 3378(c)(1), wherein documented gang activity within the past six years is deemed "current activity," id. An inmate may be validated as a gang member or associate based upon three or more independent sources of information "indicative of" "actual membership" or "association with validated gang members or associates." Id., §§ 3378(c)(3), (4). Such information may include, inter alia, statements from other inmates, debriefing reports, written materials and communications, and observation by staff. Id., § 3378(c)(8). Statements from informants may be relied upon only if their information is independently corroborated or the informant is otherwise known to be reliable. Id., §§ 3378(c)(8)(H); 3321(b)(1).

Pending completion of an investigation whether an inmate warrants gang validation, the inmate may be placed in administrative segregation. Id., § 3335 (authorizing "immediate" segregation of an inmate whose "presence in the general inmate population presents an immediate threat to the safety of the inmate or others, endangers institution security or jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity"). Once the prison determines that an inmate is a member or associate of a prison gang, the inmate is routinely transferred to a SHU. Id., § 3341.5(c)(2)(A) (2) ("a validated prison gang member or associate is deemed to be a severe threat to the safety of others or the security of the institution and will be placed in a SHU for an indeterminate term"). Once an inmate has been validated as a gang member or associate and placed in the SHU, he must be free of any gang activity for at least six years before he may be considered for release. Id., §§ 3341.5(c)(5), 3378(e). (Alternatively, an inmate may released from the SHU if he chooses to "debrief," that is, admit his gang affiliation, identify other gang members, and reveal all he knows about gang structure - he will be released from the SHU at the end of the debriefing process. Id., § 3378.1(d)). An inmate placed in the SHU receives periodic reviews, at intervals of 180 days.

Id., § 3341.5(c)(2)(A).

These procedures comport with constitutional requirements. The process constitutionally due an inmate placed in segregated housing depends on whether the placement is disciplinary or administrative. Toussaint v. McCarthy, 801 F.2d 1080, 1099 (9th Cir. 1986). In Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003), the Ninth Circuit determined that California's policy of placing suspected gang members in segregation is an administrative decision, undertaken to preserve order in the prison. When an inmate is placed in segregation for administrative purposes, due process requires only the following procedures:

Prison officials must hold an informal non-adversary hearing within a reasonable time after the prisoner is segregated. The prison officials must inform the prisoner of the charges against the prisoner or their reasons for considering segregation. Prison officials must allow the prisoner to present his views. . . . [D]ue process [ ] does not require detailed written notice of charges, representation by counsel or counsel-substitute, an opportunity to present witnesses, or a written decision describing the reasons for placing the prisoner in administrative segregation.

Toussaint, 801 F.2d at 1100-01 (footnote omitted).

Prisoners are entitled to the minimal procedural protections of adequate notice and an opportunity to be heard. Bruce, 351 F.3d at 1287. In addition to these minimal protections, there must be "some evidence" supporting the decision to place a prisoner in segregated housing. Id. (citing Superintendent v. Hill, 472 U.S. 445, 454 (1985)).

The "some evidence" standard sets a low bar, consistent with the recognition that assignment of inmates within prisons is "essentially a matter of administrative discretion," subject to "minimal legal limitations." Bruce, 351 F.3d at 1287 (citing Toussaint, 801 F.2d 1080, with respect to the minimal limitations). A single piece of evidence may be sufficient to meet the "some evidence" requirement, if that evidence has "sufficient indicia of reliability." Id., at 1288. In applying this standard the court is not required to "examine the entire record, independently assess witness credibility, or reweigh the evidence; rather, 'the relevant question is whether there is any evidence in the record that could support the conclusion.'" Id. (citing Hill, 472 U.S. at 455-56).

1. Defendants Brandon and Parker

Plaintiff contends that defendant Brandon denied plaintiff due process "by not properly providing accurate complete copies of any substantial evidence of his accusation." (Cmplt. at 16.) Plaintiff contends that "[d]efendant G. Parker denied plaintiff's due process rights by not provid[ing] [a] staff assistant," or "accurate and complete adequate copies" of the "five (5) items classified as confidential information to validate[] plaintiff . . . ." (Id. at 14.) Plaintiff also contends that neither defendant Brandon nor Parker gave plaintiff his "24-hour interview." (Dkt. No. 87-1 at 24-25 ¶ 34.) None of these claims raise material factual disputes requiring resolution by trial.

Plaintiff's challenge to the "24-hour interview" appears to be premised on the regulatory requirement that an inmate considered for validation be accorded 24 hours to prepare for an interview in which he may challenge the items offered in support of his recommended validation. See Cal. Code Regs. tit. 15, § 3378(c)(6)(B). Plaintiff directs the court to no evidence that supports his allegation that he was denied this opportunity. Rather, the evidence of record indicates that defendant Brandon properly disclosed to plaintiff the items referenced in the proposed validation on June 7, 2006, and that defendant Parker interviewed plaintiff the next day (prior to submitting the validation package to the LEIU), when he told plaintiff that "this was an opportunity to dispute information used in the validation." (Dkt. Nos. 83-8, 83-14.) This evidence supports a reasonable inference that plaintiff was accorded the requisite "24-hour interview."

Similarly, plaintiff does not support his contention that Parker should have provided him a staff assistant. The regulations require the appointment of a staff assistant to inmates who are unable to understand or participate in a given process. See e.g. Cal. Code Regs. tit. 15, §§ 3000 ("effective communication"); 3315(d)(2), 3318(b) (serious rule violations); 3339(b)(3) (administrative segregation); 3341 (classification hearing on segregation order). Review of the record indicates that at all relevant times defendants assessed plaintiff's need for an assistant, and determined that it was unnecessary. Pursuant to his June 8, 2006 interview with plaintiff, Parker specifically noted that "[a] review of Rios' Central File revealed his educational level G.P.L. to be 7.7. Rios did not request staff assistance and stated that he understood the proceedings of the gang review. Staff assistance was therefore not assigned by the IGI." (Dkt. No. 83-8.) Additionally, pursuant to plaintiff's June 16, 2006, August 16, 2006, and November 1, 2006, ASU ICC meetings, it was expressly determined that a staff assistant was unnecessary because the issues were not complex and plaintiff was not a participant in the Mental Health Services Delivery System ("MHSDS"); nor is there any record that plaintiff requested an assistant. (Dkt. Nos. 83-15, 83-17, 83-19.) This evidence supports a reasonable inference that plaintiff was not improperly denied a staff assistant.

Plaintiff also challenges the sufficiency and reliability of the evidence supporting his validation and placement. Plaintiff contends that the information relied upon was false, incomplete, inadequate and unreliable. Plaintiff initially contends that defendants failed to disclose all of the information they relied on to validate plaintiff. However, in response to an inquiry by the court, defendants expressly stated that the only information they relied on are the five items described above. See Order filed March 7, 2011 (Dkt. No. 94) (directing defendants to inform the court whether they intended to rely on any additional information to demonstrate the appropriateness of plaintiff's gang validation); see also Defendants' Response filed March 15, 2011 (Dkt. No. 95) (wherein defendants stated that they intended to rely only on the five noted items).

Plaintiff further contends that defendants failed to disclose all of the confidential information underlying each of the five items relied on to support his validation. However, defendants were authorized to withhold information deemed confidential by CDCR. Each of the five CDC 1030 Chronos states that it is based on confidential information withheld from plaintiff because disclosure would threaten the safety and security of the institution (Dkt. Nos. 85-9 through 85-13; see also Dkt. No. 87-2 at 118-19), thereby meeting the requirement for classifying and withholding confidential information, see Cal. Code Regs. tit. 15, § 3321(a) (institution may withhold classified confidential information which, if known to inmate, would endanger the safety of any person or jeopardize the security of the institution). Each Chrono further provides that the individual who reported the confidential information had incriminated himself in a criminal activity at the time he provided the information, thus satisfying the regulations' criteria for reliability. Id., § 3321(c)(3) ("[a] confidential source's reliability may be established by [alleging that]. . .[t]he information provided by the confidential source is self-incriminating");*fn10 see also id., § 3321(b) (classified confidential material must be corroborated or otherwise found reliable). Plaintiff has failed to raise a material factual dispute relative to defendants' withholding of confidential information.

Plaintiff further challenges the reliability of his validation information based on the failure of any defendant to previously inform plaintiff of the March 2003 and February 2004 source items,*fn11 before commencing the validation process in June 2006. Plaintiff directs the court's attention to the December 2, 2004 assessment of defendant Parker, when he partially granted plaintiff's administrative grievance challenging his ethnic classification (Log No. SACC-04-2235), that "there was insufficient information to validate Rios as a member or associate of any prison gang or disruptive group." (Dkt. No. 83-22 at 4.) Plaintiff contends that, had the 2003 and 2004 information actually existed and been perceived as reliable, Parker would not have reached this conclusion in December 2004; moreover, that the information would have been revealed to plaintiff at the time they occurred, for example, pursuant to a CDC 115 (rules violation report). This reasonable inference is not contradicted by the record. In response to plaintiff's direct inquiry concerning this apparent inconsistency, Parker responded only that he was "without sufficient information, knowledge, or belief to admit or deny" it. (Dkt. No. 87-2 at 3 (Response No. 2), 28-29 (Response No. 5).) Brandon responded similarly when asked whether there were contradictions in plaintiff's prison file. (Dkt. No. 87-1 at 99 (Response No. 15).)

It is, however, also reasonable to infer that the 2003 and 2004 validation items were not in plaintiff's file when Parker conducted his 2004 review, or that these items were in plaintiff's file but found to be an insufficient basis for concluding that plaintiff then had a gang affiliation. The latter is a reasonable inference based on Parker's further cautionary statement in 2004 that, while "there was insufficient information to validate Rios as a member or associate of any prison gang or disruptive group . . . Rios' behavior should [nonetheless] be closely monitored whenever gang activity or association is present." (Dkt. No. 83-22 at 4).

More importantly, even if these two challenged items were deemed unreliable, the remaining three items are temporally and substantively sufficient to support plaintiff's validation. See Cal. Code Regs., tit. 15, §§ 3378(c)(3), (4) (an inmate may be validated as a gang member or associate based upon "three (3) independent source items of documentation"); see also Bruce, 351 F.3d at 1288 ("any of these three pieces of evidence would have sufficed to support the validation because each has sufficient indicia of reliability") (citing Toussaint, 926 F.2d at 803). Therefore, despite the lack of a clear record on this matter, the court finds that plaintiff has failed to raise a material factual dispute concerning the timing and reliability of the source items supporting his gang validation.

These several contentions fail to demonstrate a material dispute in support of plaintiff's due process challenges against defendants Brandon and Parker. The record supports a finding that plaintiff received at least the minimal procedural protections to which he was entitled, specifically, adequate notice and an opportunity to be heard, Bruce, 351 F.3d at 1287, and that plaintiff's validation was supported by "some evidence" with "sufficient indicia of reliability," id. at 1287-88. The court further notes that plaintiff's resulting temporary and permanent placements in the SHU conformed both with CDCR's regulations, Cal. Code Regs. tit. 15, §§ 3335, 3341.5, and federal law, Toussaint, 801 F.2d at 1100-01; Bruce, 351 F.3d at 1287-88. Accordingly, the court finds, as a matter of law, that defendants Brandon and Parker did not violate plaintiff's due process rights in the process of securing plaintiff's gang validation.

2. Defendants Tilton and Lockwood

To state a claim for relief under Section 1983 based on a theory of supervisory liability, plaintiff must allege some facts that would support a claim that supervisory defendants personally participated in the alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989) (internal citations omitted).

Plaintiff's due process claims against Secretary Tilton and Regulations Chief Lockwood are premised on plaintiff's broad contention that CDCR promotes "underground regulations" that entrap inmates of the same ethnic group in alleged gang affiliations. Plaintiff contends that the policy of CDCR to house together, in the general population, inmates of the same ethnic group and/or from the same "locale of commitment," necessarily results in inmate-to-inmate communications which may appear to be, and are therefore unfairly charged by prison officials as, suspected gang activity, inappropriately justified by CDCR's formal regulations. (See Dkt. No. 87, Exh. F ¶ 25 (Pltf. Decl.).) Plaintiff directs the court's attention to CDCR regulations that define a "gang associate" as "an inmate/parolee who is involved periodically or regularly with members or associates of a gang," and provide that "[i]nmates may not establish or participate in the establishment or activities of any inmate club, inmate activity group, or any association or organization of inmates within the institution except as specifically approved by the warden or superintendent. . . ." Cal. Code Regs. tit. 15, §§ 3378(c)(4), 3020(a). Plaintiff contends that these and other regulations and practices "create or foment gang activities rather than preventing or rehabilitating inmates and subjecting inmates to be targeted for validation as a prison gang associate by hearsay unreliable information offered by inmates due to personal dislikes or discrimination. . . ." (Dkt. No. 87, Exh. F ¶ 25 (Pltf. Decl.).)

In an effort to obtain changes to these and other challenged regulations, plaintiff filed, on January 14, 2007, a Petition to Promulgate Regulations pertaining to gang management and validation, submitted to defendant Lockwood in his capacity as Chief, Regulation and Policy Management Branch, Corrections Standards Authority. (See Dkt. No. 87, Exh. 4 (Pltf. Exh. O).) On January 27, 2007, Lockwood sent plaintiff a Notice of Decision, also published in the California Regulatory Notice Register, denying the petition. (Id.) Plaintiff's due process claim against Lockwood is premised on the official's failure to make regulatory changes consistent with plaintiff's proposals.

Plaintiff's claims against defendant Tilton are also tangential to plaintiff's challenged validation and housing placement. The complaint's only relevant allegations against Tilton are set forth in plaintiff's request for relief, wherein he seeks, in pertinent part, the following injunctive relief that "Defendant Secretary [Tilton] . . . [1] cease the practices of validating the inmates as a prison gang as threat to the safety of the security of the institution and others, merely by using hearsays and perjury testimonies from criminal inmates" (Cmplt. at 19);

(2) "cease the scheme of using unreliable, untrue, insufficient information in imposing gang validation and indeterminate (SHU) terms [generated as a result of] . . . classifying all the inmates according to their ethnic group and mixed with gang members, associate/affiliated" (id. at 21); (3) "implement a clear and fair prison gang management policy"*fn12 (id. at 22); (4) "cease the practice of discriminatory classification and segregation of Hispanic/Mexican prisoners and foreign Mexican National inmates not a gang related or associated" (sic) (id.); and (5) "cease the practice of using any underground regulation which has not been properly promulgated pursuant to the (APA) [Administrative Procedures Act] Government Code section 11342 et seq." (id. at 23.)

Plaintiff has failed to direct the court to any evidence demonstrating that his validation was based on the "underground regulations" he challenges, or that defendants Tilton or Lockwood implemented or promoted regulations "so deficient" as to intrinsically repudiate constitutional rights and be "the moving force" behind plaintiff's alleged constitutional violations. Hansen, supra, 885 F.2d at 646. Plaintiff has also failed to allege that either defendant Tilton or Lockwood had any direct connection to any act resulting in the alleged deprivation of plaintiff's due process rights. Plaintiff's allegations against these supervisory defendants are therefore improperly vague and conclusory. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). There can be no liability under Section 1983 unless there is some affirmative link or connection between a defendant's alleged actions and the claimed constitutional deprivation. Rizzo v. Goode, 423 U.S. 362, 371 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Accordingly, the court finds that plaintiff has failed to demonstrate any material factual dispute whether Tilton or Lockwood violated plaintiff's due process rights. As a matter of law, summary judgment should be granted in favor of both defendant Tilton and defendant Lockwood.

B. Retaliation

Plaintiff contends that his validation and SHU placement were actively sought by defendants Parker and Mayfield, who acted in retaliation against plaintiff for exercising his First Amendment rights. (Although plaintiff's complaint also appears to allege a retaliation claim against defendant Brandon, plaintiff stated at his deposition that his retaliation claims are made against only defendants Parker and Mayfield. (Dkt. No. 87-2 at 116; Dkt. No. 83-4 at 5.)) "A prisoner suing prison officials under section 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline." Barnett v. Centoni, 31 F.3d 813, 816 (citing Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)).

"[A] viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). Direct and tangible harm will support a First Amendment retaliation claim even without demonstration of chilling effect on the further exercise of a prisoner's First Amendment rights. Id. at 568, n.11. "[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he suffered some other harm" as a retaliatory adverse action. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009), citing Rhodes, 408 F.3d at 568 n.11.

A plaintiff must plead facts which suggest that retaliation for the exercise of protected conduct was the "substantial" or "motivating" factor behind the defendant's conduct. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Mere conclusions of hypothetical retaliation will not suffice; rather, a prisoner must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990). Retaliatory motive may be shown by the timing of the allegedly retaliatory act and inconsistency with previous actions, as well as direct evidence. Bruce v. Ylst, supra, 351 F.3d at 1288-89 (retaliatory validation as a gang member for filing grievances); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995)

Once such a prima facie showing of retaliation is made, the burden shifts to the defendant prison officials to show, by a preponderance of the evidence, that the alleged retaliatory action was conduct narrowly tailored to serve a legitimate penological purpose. Schroeder v. McDonald, 55 F.3d 454, 461-62 (9th Cir. 1995). However, "prison officials may not defeat a retaliation claim on summary judgment simply by articulating a general justification for a neutral process, when there is a genuine issue of material fact as to whether the action was taken in retaliation for the exercise of a constitutional right." Bruce, 351 F.3d at 1289 (citations omitted).

1. Retaliation Claim Against Parker

Plaintiff contends that defendant Parker participated in plaintiff's gang validation in retaliation for plaintiff filing civil actions and complaints against other correctional staff. At his deposition, plaintiff explained that this retaliation claim was based on Parker's alleged failure "to correct the labels to make sure that I was not affiliated with any gang member." (Dkt. No. 83-4 at 6.) Plaintiff alleges that Parker's alleged retaliation is demonstrated by the fact that, after plaintiff filed a civil rights complaint on November 1, 2004 (Dkt. No. 83-2 at 116), Parker, on December 2, 2004, "partially granted" plaintiff's administrative grievance filed September 21, 2004 (Log. No. SAC-C-04-2235), but "then at the end denied it" (Dkt. No. 83-4 at 6-7).

The record lacks evidentiary support for the claim that Parker's response to plaintiff's administrative grievance was an "adverse action." Parker has filed a declaration in which he states that, after he partially granted plaintiff's grievance at the informal level (finding, in pertinent part, that there was insufficient information to validate plaintiff), he did not further participate in the grievance. (Dkt. No. 83-7 at 2 (Parker Decl.).) This statement is supported by review of the grievance through its exhaustion. The official responses to this grievance following the response of Parker (Roth at the First Level Review on February 3, 2005, Warden Kernan at the Second Level Review on March 7, 2005, and the Inmate Appeals Branch Chief, N. Grannis, at the Third Level Review on June 24, 2005) (Dkt. No. 83-22, Dkt. No. 87-3 at 67 through Dkt. No. 87-4 at 16)), support Parker's sworn statement that he "had no involvement in appeal SAC-C-04-02235 after responding to it at the informal level." (Id.) Parker further declares that he "had no communication with Sergeant Roth, or any other correctional staff member regarding appeal SAC-C-04-02235 after [Parker] responded to this grievance at the informal level." (Dkt. No. 83-7 at 2-3.) Plaintiff has presented no evidence to rebut Parker's supported statements. Moreover, although the subject grievance was ultimately denied, plaintiff obtained the relief he sought, i.e., elimination of the "Border Brother" classification, replaced by reference to "Mexican National."

The record also lacks evidentiary support for plaintiff's further claim that Parker's direct participation in plaintiff's validation was motivated by retaliation. Plaintiff fails to allege any facts in support of his allegation that Parker had a motive to retaliate against plaintiff, or participated in plaintiff's gang validation because of plaintiff's protected conduct.

2. Retaliation Claim Against Mayfield

Plaintiff contends that defendant Mayfield, plaintiff's female correctional counselor, referred plaintiff for gang validation in retaliation for plaintiff filing an administrative grievance (Log No. SAC-C-06-0599) that challenged Mayfield's decisions. Plaintiff testified at his deposition that he filed the administrative grievance, challenging two classification decisions in which Mayfield participated, in order "to lower my classification custodian number so that I could be able to participate in programs and to work." (Dkt. No. 83-4 at 8). Plaintiff testified that Mayfield "failed in not removing the false gang member activity that's in my file . . . . [S]he could have and she had the right to remove all that and correct it." (Id. at 4.) Plaintiff stated that he believed Mayfield thereafter acted in retaliation "due to the 602." (Id. at 5.)

Although no evidence of record appears to directly support plaintiff's contention, the timing of the relevant matters supports a reasonable inference that Mayfield may have referred plaintiff for the gang validation investigation, and may have done so in retaliation for plaintiff's filing and continued pursuit of the subject administrative grievance: the challenged classification decision was made on December 6, 2005; plaintiff filed his grievance on December 12, 2005; defendant Mayfield interviewed plaintiff regarding the grievance on April 5, 2006; plaintiff directly challenged Mayfield's interview findings on April 16, 2006; and, on June 7, 2008, plaintiff was informed of his gang validation investigation.

Significantly, defendant Mayfield has not filed a declaration in this action, and therefore has not rebutted these reasonable inferences. Thus, the court finds that plaintiff has demonstrated the existence of material factual disputes concerning Mayfield's role in plaintiff's gang validation investigation and, assuming some role, Mayfield's motivation.

The additional elements for stating a retaliation claim have been sufficiently alleged. Plaintiff's alleged injuries as a result of his gang validation*fn13 satisfy the requirement of a "direct and tangible harm" resulting from an alleged adverse action. Brodheim, 584 F.3d at 1269; Rhodes, 408 F.3d at 568 n.11. Moreover, the finding that plaintiff's validation was consistent with due process requirements does not resolve plaintiff's retaliation claim. "[I]f, in fact, the defendants abused the gang validation procedure as a cover or a ruse to silence and punish [plaintiff] because he filed grievances, they cannot assert that [plaintiff's] validation served a valid penological purpose, even though he may have arguably ended up where he belonged." Bruce, supra, 351 F.3d at 1289, citing Rizzo, supra, 778 F.2d at 532.

Therefore, the court finds that plaintiff has alleged against defendant Mayfield a viable claim of First Amendment retaliation, for which he has demonstrated the existence of material factual disputes requiring resolution by trial.

VI. Conclusion

For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

1. Defendants' motion for summary judgment (Dkt. No. 83) be granted in part and denied in part; and

2. This action should proceed only on plaintiff's retaliation claim against defendant Mayfield; summary judgment should be granted for all other defendants on all remaining claims.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within 14 days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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