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Robert Christopher Jimenez v. J. Whitfield

January 24, 2012

ROBERT CHRISTOPHER JIMENEZ, PLAINTIFF,
v.
J. WHITFIELD, ET AL.,
DEFENDANTS.



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

ORDER AND FINDINGS & RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner proceeding without counsel. Plaintiff is housed at Pelican Bay State Prison ("PBSP"). In the instant complaint, filed pursuant to 42 U.S.C. § 1983, plaintiff alleges that he was re-validated as a member of the Northern Structure prison gang while housed at California State Prison, Solano, and placed in the security housing unit ("SHU"), in violation of plaintiff's constitutional rights. Defendants filed a motion for judgment on the pleadings on the following grounds: (1) plaintiff failed to allege facts demonstrating the gang validation implicated the Fifth Amendment, the Eighth Amendment, or the Equal Protection Clause of the Fourteenth Amendment; (2) plaintiff provided exhibits showing that plaintiff was given adequate notice and the opportunity to be heard, the only process plaintiff was due under the Fourteenth Amendment, and plaintiff failed to allege the gang validation was not supported by some evidence; and (3) plaintiff's claims that defendants failed to comply with state regulations, the policies and procedures of the California Department of Corrections and Rehabilitation ("CDCR"), and a settlement agreement in Castillo v. Terhune, et al., Case No. C94-2847 MJJ (N.D. Cal. 1994) (agreement docketed Sept. 23, 2005), improperly addressed plaintiff's grievance concerning gang validation, and took or failed to take other actions, do not implicate plaintiff's constitutional rights. Plaintiff filed an opposition, and defendants filed a reply.*fn1 For the reasons set forth below, the court recommends that defendants' motion for judgment on the pleadings be granted in part and denied in part.

II. Background

California prison authorities have determined that prison gangs are a serious threat to institutional security and have devised a system for segregating gang affiliates to reduce that threat. As will be seen, the process involves investigating the inmate to determine whether to validate him as a gang member or associate; if he is validated, he then may be placed in administrative segregation indefinitely. The decision-making process is spread out among several different people and over a long period of time. Thus, the inmate may be investigated for many months, and may be validated as a gang affiliate long before a committee decides whether he should be placed in administrative segregation.

Lopez v. Valdez, 2007 WL 1378017, *1 (N.D. Cal. 2007).

On June 7, 2007,*fn2 plaintiff was validated as a Northern Structure gang member by the Law Enforcement and Investigative Unit ("LEIU"). (Dkt. No. 11 at 25.)*fn3 The LEIU received a gang validation package from Institution Gang Investigator R.L. Bond on November 21, 2006, consisting of five items:

1. CDC 128B dated September 23, 2006 (Staff Information)

2. Confidential Memorandum dated September 5, 2006 (Informants)

3. CDC 128B dated July 27, 2006 (Communications-direct link)

4. Confidential Memorandum dated January 11, 2005 (Written Material)

5. CDC 128B dated September 9, 2006 (Tattoos) (Id.) However, the committee determined that item 5 (tattoos) did not meet the validation requirements and were not used to validate plaintiff as a gang member. (Id.) Lt. Bond provided a report describing the source items and recommending that plaintiff be validated. (Dkt. No. 48 at 7.)*fn4

III. Standards for a Motion for Judgment on the Pleadings Federal Rule of Civil Procedure 12(c) provides: After the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings.

Fed. R. Civ. P. 12(c). In considering a motion for judgment on the pleadings the court accepts "all factual allegations in the complaint as true" and construes the allegations "in the light most favorable to the non-moving party." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009) (citing Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir. 2004)). Judgment on the pleadings is appropriate "when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Fleming, 581 F.3d at 925 (citing Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 979 (9th Cir. 1999)).

When brought by a defendant, a Rule 12(c) motion for judgment on the pleadings is a "means to challenge the sufficiency of the complaint after an answer has been filed." New. Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090, 1115 (C.D. Cal. 2004). Therefore, it is similar to a motion to dismiss. Id. To the extent that a motion for judgment on the pleadings raises the defense of failure to state a claim, the court applies the Rule 12(b)(6) standard. McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). The court may dismiss a complaint for failure to state a claim under Rule 12(b)(6) for two reasons: (1) lack of a cognizable legal theory; and (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint must satisfy the pleading requirements of Rule 8. Although a complaint attacked for failure to state a claim does not need detailed factual allegations, the pleader's obligation to provide the grounds for relief requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive a motion to dismiss, a complaint must contain sufficient factual matter, which, if accepted as true, states a claim to relief that is "plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Facial plausibility exists if the pleader pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. "Where a complaint pleads facts that are 'merely consistent' with a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

Finally, a court may consider exhibits submitted with the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). In addition, a "court may consider evidence on which the complaint 'necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b) (6) motion." Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). A court may treat such a document as "part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Such consideration prevents "plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting reference to documents upon which their claims are based." Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (superseded by statute on other grounds). A "court may disregard allegations in the complaint if contradicted by facts established by exhibits attached to the complaint." Sumner Peck Ranch v. Bureau of Reclamation, 823 F. Supp. 715, 720 (E.D. Cal. 1993) (citing Durning, 815 F.2d at 1267.)

IV. Fifth Amendment Claim

Plaintiff alleges, in conclusory fashion, that his re-validation as a gang member and his retention in the SHU violates the Fifth Amendment. (Dkt. No. 9 at 1.)

The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Plaintiff does not expressly state that he was compelled to testify against himself. Plaintiff's bald claim that his Fifth Amendment rights were violated, without more, is insufficient to state a cognizable civil rights claim.

However, an inmate will remain in the SHU indefinitely, unless he renounces his gang membership through the debriefing process. Madrid v. Gomez, 889 F. Supp. 1146, 1241 (N.D. Cal. 1995). As noted by defendants, plaintiff failed to allege any facts demonstrating that plaintiff debriefed or that any defendant sought to compel plaintiff to debrief. But to the extent that plaintiff suggests that a requirement to debrief in order to be released from the SHU violates the Fifth Amendment, such argument also fails to state a cognizable civil rights claim. Section 3378.1 provides:

The purpose of the debriefing interview is to provide staff with information about the gang's structure, activities and affiliates. A debriefing is not for the purpose of acquiring incriminating evidence against the subject. The object of a debriefing is to learn enough about the subject and the subject's current gang to: (1) allow staff to reasonably conclude that the subject has dropped out of the gang, and (2) allow staff to reclassify the subject based upon the inmate's needs in conjunction with the security of the institution, as well as, the safety and security of staff and other inmates. A requirement of the interview phase is that the inmate provides staff a written autobiography of their gang involvement, which is then verified by staff for completeness and accuracy.

Cal. Code Regs. tit. 15, ยง 3378.1(b). Because debriefing is not for the purpose of acquiring incriminating evidence against plaintiff, "the Fifth Amendment is not implicated." Medina v. Gomez, 1997 WL 488588, *5 (N.D. Cal. Aug. 14, 1997). In addition, the debriefing policy provides safeguards to prevent involuntary self-incrimination. "PBSP's debriefing policy does not, therefore, violate ...


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