The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel. In the March 22, 2010 amended 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. The sole remaining claim in this case is whether defendant Whitfield violated plaintiff's due process rights on October 17, 2006, by failing to give plaintiff an opportunity to air his views concerning his gang validation.*fn1 On June 11, 2012, defendant Whitfield filed a motion for summary judgment alleging that he went to plaintiff's cell in Administrative Segregation at noon on October 17, 2006, to hear plaintiff's views on his gang validation, but plaintiff refused to leave his cell to speak with defendant Whitfield. Plaintiff filed an opposition on September 5, 2012, and defendant filed a reply on September 13, 2012. For the reasons set forth below, the court recommends that defendant's motion be granted.
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 packet 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 was 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
Plaintiff challenged this gang validation on multiple grounds. (Dkt. No. 9.) However, with regard to plaintiff's due process claims, on March 20, 2012, the undersigned found that in connection with the gang validation hearing, plaintiff received adequate notice prior to the hearing, and that the gang validation decision was supported by some evidence that was sufficiently reliable to satisfy due process standards. (Dkt. No. 49 at 12; 14-17.) However, the court found that the record was insufficiently developed to allow the court to determine the length of the disciplinary hearing, and whether plaintiff could have returned to his cell by "approximately 1200 hours" on October 17, 2006, such that plaintiff was deprived of an opportunity to air his views on the gang validation packet, particularly in light of plaintiff's contention that he was not in his cell at noon on that date. (Dkt. No. 49 at 13.)
III. Standards for a Motion 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 that 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). "[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., citing Fed. R. Civ. P. 56(c). 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. 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 Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
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 a 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. See 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. See 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. See 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).
By orders filed January 12, 2011, and July 24, 2012, the court advised plaintiff of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
IV. Fourteenth Amendment - Due Process Standards
The Due Process Clause protects plaintiff against the deprivation of liberty without the procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Protected liberty interests arise from the Fourteenth Amendment's Due Process Clause itself, or from state laws or regulations deemed to have created a liberty interest cognizable as a civil right. Meachum v. Fano, 427 U.S. 215, 224-27 (1976).
The Due Process Clause itself does not confer on inmates a liberty interest in avoiding more adverse conditions of confinement, id. at 221-22 (citations and quotation marks omitted), and under state law, the existence of a liberty interest created by prison regulations is determined by focusing on the nature of the condition of confinement at issue, id. at 222-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84 (1995), quotations omitted.) Liberty interests created by prison regulations are generally limited to freedom from restraint which imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.
Wilkinson, 545 U.S. at 221 (citing Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
The assignment of validated gang members and associates to the SHU is an administrative measure rather than a disciplinary measure and is "essentially a matter of administrative discretion." Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (quoting Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997)).*fn5 As a result, prisoners are entitled to the minimal procedural protections of adequate notice, an opportunity to be heard, and periodic review. Bruce, 351 F.3d at 1287 (citing Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986), abrogated in part on other grounds by Sandin, 515 U.S. at 472)). In addition to these minimal protections, there must be "some evidence" supporting the decision. Id. (citing Superintendent v. Hill, 472 U.S. 445, 454 (1985)).
For purposes of summary judgment, the court finds that the following facts are either not disputed, or, following the court's review of the evidence submitted, are deemed undisputed, unless otherwise indicated:
1. At the times relevant to this action, plaintiff Robert Jimenez was a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR") at California State Prison-Solano ("CSP-Solano"). (Whitfield Decl. ¶ 15.)
2. On September 9, 2006, Correctional Officer R. Jones issued a Rules Violation Report to plaintiff, charging him with participating in a riot. (Brown Decl. ¶ 9, Ex. 1.)
3. Lt. S.W. Brown is a Correctional Lieutenant with the CDCR at CSP-Solano, whose duties include presiding at disciplinary hearings for inmates charged with rule ...