The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
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.
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.)
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).
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, ...