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Fernando Avila Perez, Jr v. Mcdonald

June 19, 2012

FERNANDO AVILA PEREZ, JR., PLAINTIFF,
v.
MCDONALD, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that his constitutional rights were violated in connection with his validation as an associate of a prison gang. This matter is before the court on defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Defendants contend that plaintiff has failed to state a claim for relief. Plaintiff opposes the motion.

STANDARDS FOR A MOTION TO DISMISS

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).

ANALYSIS

Plaintiff's amended complaint, filed April 21, 2011, contains the following allegations:

On April 4, 2009, defendant St. Andrew, an institutional gang investigator, placed plaintiff in administrative segregation pending investigation into plaintiff's presumed association with the Northern Structure prison gang. On August 27, 2009, defendant G. Bracket, disclosed to plaintiff the information used in the gang validation process. The information disclosed three "source points (tattoo, informant, debriefing)" being used to validate plaintiff as a gang associate. Amended Complaint, filed April 21, 2011, at 4. The tattoo was twenty years old, the information gather by the gang investigators from the informant was false and misleading, and there is no other relevant evidence that plaintiff is associated with a prison gang.

On September 16, 2009, defendant Marquez contacted defendant Bracket and directed him to review the "tattoo source." Id. at 5. Defendants Bracket and Harrison reviewed plaintiff's central file and decided to use a probation report to support use of the tattoo to support the gang validation. Gang investigators also added another confidential source. None of the evidence relied on to support the gang validation is reliable, nor could plaintiff's probation report be considered without violating the ex post facto clause.

Plaintiff filed an inmate grievance contesting the gang validation. The grievance was screened out as untimely by the High Desert Prison Appeals Coordinator.

ANALYSIS

In support of their motion to dismiss, defendants contend that the allegations of the amended complaint show that plaintiff received all process due in connection with his transfer to segregated housing. Defendants also contend that the allegations of the amended complaint and the exhibits appended thereto show that there was "some evidence" to support the gang validation decision.

In Munoz v. Rowland, 104 F.3d 1096 (9th Cir. 1997), the United States Court of Appeals for the Ninth Circuit held that California's policy of assigning suspected gang affiliates to the Security Housing Unit is not a disciplinary measure, but an administrative strategy designed to preserve order in the prison and protect the safety of all inmates. Although there are some minimal legal limitations, see, e.g., Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.1986) ..., the assignment of inmates within the California prisons is essentially a matter of administrative discretion.

Munoz at 1098. Due process requires only notice and an opportunity to be heard "within a reasonable time" after placement in administrative segregation. Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986), overruled in part on other grounds, Sandin v. O'Conner, 515 U.S. 472 (1995). In addition, a decision to validate an inmate as a member or associate of a prison gang must be supported by "some evidence." Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (quoting Superintendent v. Hill, 472 U.S. 445, 455 (1985)). Under Hill's "some evidence" standard, the court does "not 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.'" Bruce, id. (quoting Hill, 472 U.S. at 455-56). However, the evidence relied on must have some "indicia of reliability." Bruce, at 1288 (citing Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir. 1990)). Reliability may be established by (1) the oath of the investigating officer appearing before the committee as to the truth of his report that contains confidential information, (2) corroborating testimony, (3) a statement on the record by the chairman of the committee that he had firsthand knowledge of sources of information and considered them reliable based on the informant's past record, or (4) an in camera review of the documentation from which credibility was assessed.... Proof that an informant previously supplied reliable information is sufficient.

Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir.1987).

Here, plaintiff challenges the sufficiency of the evidence relied on to support his validation as an associate of the Northern Structure prison gang. State regulations provide in relevant part that An associate is an inmate/parolee or any person who is involved periodically or regularly with members or associates of a gang. This identification requires at least three (3) independent source items of documentation indicative of association with validated gang members or associates. Validation of an inmate/parolee or any person as an associate of a prison gang shall require at least one (1) source item be a direct link to a current or former validated member or associate of the gang, or to ...


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