Bruce v. Woodford

         ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF NO. 168) ORDER DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT (ECF NO. 188) ORDER REGARDING PLAINTIFF’S OBJECTIONS TO AND MOTION TO STRIKE DEFENDANTS’ EVIDENCE (ECF NO. 194) ORDER REGARDING PLAINTIFF’S MOTION TO STRIKE DECLARATIONS (ECF NO. 223)

          Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff Vincent C. Bruce (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds on Plaintiff’s claims against Defendants Adams, Hense, Ward, Clark, Fulks, Wan, Frauenheim, Lloren, Field and Tripp for retaliation in violation of the First Amendment; Defendants Adams, Hense, Ward, Clark, Fulks, Wan, Lloren, Field and Tripp for violation of the Due Process Clause of the Fourteenth Amendment; and Defendants Adams, Schottgen and Field for failing to provide Plaintiff with adequate clothing in violation of the Eighth Amendment. All parties have consented to magistrate judge jurisdiction. (ECF Nos. 4, 104.)

         Defendants filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing that the undisputed facts show that they did not violate Plaintiff’s constitutional rights, and show that they are protected by qualified immunity. Fed.R.Civ.P. 56. (ECF No. 168.) Plaintiff opposed the motion, and also filed a cross-motion for summary judgment on all of his claims, (ECF No. 188). These motions are fully briefed and deemed submitted. Local Rule 230(l). The parties also filed documents regarding the evidence submitted in support of the summary judgment motions, including objections and motions to strike each other’s’ evidence. (ECF Nos. 194, 223.) Those motions have also been fully-briefed, so the Court finds them submitted, and addresses them below, as necessary. Local Rule 230(l).

         II. Legal Standards

         A. Summary Judgment Standard

         Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate when the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Summary judgment must 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, the court is to liberally construe the filings and motions of pro se litigants. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).

         The “party seeking summary judgment 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, 477 U.S. at 323 (internal quotations and citations omitted). 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 does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the 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. Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 586 n.11.

         In arriving at the findings and rulings in this opinion, the Court carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate.

         B. Evidentiary Objections

         The parties have raised numerous objections to the evidence submitted by each other in support of these motions. As noted above, not every objection will be addressed by the Court individually, as doing so is neither necessary nor is that the practice of this Court in the summary judgment context. For the sake of clarity and to the extent it is appropriate, certain individual objections have been addressed by the Court below. Other objections are better dealt with here, in general terms.

         Any objections to official prison records for lack of authentication are overruled. Fed.R.Evid. 901(b)(4); Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532–33 (9th Cir. 2011). The records are subject to authentication under Rule 901(b)(6), and the Court notes the absence of any evidence or argument suggesting the existence of a legitimate challenge to the records on authentication grounds. See Chamberlain v. Les Schwab Tire Center of California, Inc., No. 2:11–cv–03105–JAM–DAD, 2012 WL 6020103, at *2 (E.D. Cal. Dec. 3, 2012) (citing Burch v. Regents of Univ. of California, 433 F.Supp.2d 1110, 1120 (E.D. Cal. 2006)) (rejecting “purely procedural” authentication objection).

         The hearsay objections are also overruled. Declarations which contain hearsay are admissible for summary judgment purposes if they can be presented in admissible form at trial. Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (9th Cir. 2004). Furthermore, “[i]f the significance of an out-of-court statement lies in the fact that the statement was made and not in the truth of the matter asserted, then the statement is not hearsay.” Calmat Co. v. U.S. Dep’t of Labor, 364 F.3d 1117, 1124 (9th Cir. 2004). At this stage, the Court did not find the hearsay objections raised by the parties to be preclusive of the evidence submitted.

         Finally, given the Court’s duty to determine whether there exists a genuine dispute as to any material fact, objections to evidence as irrelevant are both unnecessary and unhelpful. E.g., Carden v. Chenega Sec. & Protections Servs., LLC, No. CIV 2:09–1799 WBS CMK, 2011 WL 1807384, at *3 (E.D. Cal. May 10, 2011); Arias v. McHugh, No. CIV 2:09–690 WBS GGH, 2010 WL 2511175, at *6 (E.D. Cal. Jun. 17, 2010); Tracchia v. Tilton, No. CIV S–062916 GEB KJM P, 2009 WL 3055222, at *3 (E.D. Cal. Sept. 21, 2009); Burch, 433 F.Supp.2d at 1119.

         III. Undisputed and Disputed Material Facts

         Plaintiff is a state inmate currently serving a term of life without parole, who was housed at the Substance Abuse Treatment Facility and State Prison (“SATF”) in Corcoran, California, at all times relevant to this litigation. (Pl.’s Resp. to Defs.’ Statement of Undisputed Facts (“Pl.’s Undisputed Facts”), ECF No. 192, ¶¶ 1-2.) At all relevant times, Defendants were working at SATF in the following capacities: Defendant Adams as Warden; Defendants Clark, Hense, and Ward as Associate Wardens; Defendant Fulks as a Correctional Captain and an Associate Warden; Defendant Frauenheim as a Correctional Counselor II Specialist and Supervisor; Defendants Field, Lloren, and Schottgen as Correctional Lieutenants; Defendant Wan as a Correctional Lieutenant who was promoted to Facility Captain; and Defendant Tripp as a Correctional Officer. (Id. at ¶¶ 3-13.)

         A. Hunger Strike and Plaintiff’s Placement in Administrative Segregation

         The parties agree that, on February 27, 2004, Plaintiff and a group of inmates at SATF began a hunger strike. (Pl.’s Undisputed Facts ¶ 15). According to Plaintiff, the hunger strike was a peaceful protest against certain conditions at SATF, including: the elimination of vocation and education classes, inmate jobs, and job training; the reduction of job hours; not allowing inmates to report to job assignments; the denial of religious services to African-American inmates; visiting restrictions; the unreasonable denial of indoor and outdoor recreation activities; and other conditions. (Pl.’s First Decl., ECF No. 190, ¶ 4.) Plaintiff alleges that these restrictions and conditions prevented inmates from rehabilitating themselves, and deprived them of opportunities to earn good conduct credits and decrease their sentences. (Id. at ¶ 5.) Plaintiff, along with other inmates, allegedly engaged in the strike to protest these conditions after other tactics, such as grievances and meetings with prison officials, had not improved their situation. (Id. at ¶¶ 7-8.)

         The parties dispute many of the facts regarding what occurred after the hunger strike began. Defendants contend that shortly after the strike started, prison officials received information from a confidential informant who alleged that Plaintiff and other inmates were engaged in a conspiracy to assault staff. (Defs.’ Statement of Undisputed Facts in Supp. of Mot. for Summ. J. (“Defs.’ Undisputed Facts”), ECF No. 168-2, ¶ 16.) In support of this assertion, Defendant and then-Warden Adams submitted a declaration stating under penalty of perjury that he and his staff received such information. (Decl. of Adams (“1st Adams Decl.”), ECF No. 168-4, ¶ 8.) Defendants Clark, Frauenheim, Fulks, Tripp, and Wan also submitted declarations under penalty of perjury stating that the prison officials received this confidential information concerning Plaintiff. (Decl. of Clark, ECF No. 169, ¶ 5; Decl. of Frauenheim, ECF No. 168-8, ¶ 4; Decl. of Fulks, ECF No. 168-9, ¶ 6; Decl. of Tripp, ECF No. 168-16, ¶ 5; Decl. of Wan, ECF No. 168-17, ¶ 7.) Defendants further contend that, on the basis of the confidential informant’s allegations, Plaintiff was placed in administrative segregation on February 29, 2004, pending an investigation into the allegations. (1st Adams Decl.¶ 10; Decl. of Clark ¶ 7; Decl. of Frauenheim ¶ 5; Decl. of Fulks ¶ 7; Decl. of Wan ¶ 8.)

         Plaintiff agrees that he was placed in administrative segregation on February 29, 2004, and that he was provided a notice of placement in administrative segregation, CDC Form 114-D, stating that the placement was based on allegations that he was involved in a conspiracy to assault staff. (Decl. of Fulks ¶ 8; CDC Form 114-D dated Feb. 29, 2004, ECF No. 168-9, p. 6; Pl.’s Undisputed Facts ¶¶ 17-18.) The form states that Plaintiff would be retained in administrative segregation pending review by the Institutional Classification Committee (“ICC”) at the “direction of the warden.” (CDC Form 114-D dated Feb. 29, 2004, ECF No. 168-9, p. 6.) Defendant Fulks further declares that after Plaintiff was placed in administrative segregation, he, as Acting Associate Warden, reviewed and signed off on the placement notice, as reflected on the CDC Form 114-D. (Decl. of Fulks ¶ 8.)

         Although Plaintiff agrees he was placed in administrative segregation and received the above-described notice, he argues that the conspiracy allegations which Defendants claim were the reason he was placed in administrative segregation, were pretextual. According to Plaintiff, the Defendants fabricated both the confidential investigation report and the conspiracy allegations against him. (Pl.’s Undisputed Facts ¶ 16.) He specifically alleges that “no such memorandum ever existed, nor any such information alleging [his] involvement in a conspiracy to assault staff.” (Id.)

         Plaintiff contends that the true reason he was placed into administrative segregation was to retaliate against him for his participation in the hunger strike, including for being one of the organizers of the strike and refusing to use his influence to stop it, and as an attempt to intimidate the strike participants to cease striking. (Pl.’s Undisputed Facts ¶ 17.) In support, Plaintiff submits a CDC 128G form dated March 24, 2004 authored by Classification Staff Representative (“CSR”) M. Scott. (Pl.’s First Decl., ECF No. 190, Exh. C, p. 29.) A notation on that form states, in pertinent part, that Plaintiff was allegedly placed in administrative segregation based on allegations he was involved in a conspiracy to assault staff as set forth in a February 29, 2004 confidential report authored by Correctional Officer Patten (“Patten Report”). However, the notation goes on to state that at the time of CSR Scott’s review, the Patten Report was not contained in the relevant investigation file or the central file.

         Plaintiff also submitted his own declaration signed under penalty of perjury in support of his allegations of retaliation. Plaintiff declares that on the morning of the hunger strike, Defendant Fulks summoned Plaintiff and three other inmates to a meeting with Fulks and Defendant Wan to discuss the strike. (Pl.’s First Decl. ¶ 9.) Plaintiff declares that he and these other inmates were elected representatives who present inmate concerns and complaints to the warden and other officials as part of a Men’s Advisory Council (“MAC”). ( Id. at ¶¶ 6, 9.) Defendant Fulks asked Plaintiff and the other MAC representatives to represent the hunger strike participants by presenting the inmate complaints, and to communicate the position of the officials to them. (Id.) Defendant Fulks stated there would be no retaliation against Plaintiff for acting as a spokesperson regarding the strike, and Defendants Fulks and Wan told Plaintiff he and the other inmates were breaking no rules by having a hunger strike, as long as it remained peaceful. (Id. at ¶ 10.) Defendants Fulks and Wan specifically told Plaintiff he would not receive any rules violation reports or be placed in administrative segregation. (Id.) Defendants Fulks and Wan also conferred with Defendant Clark on the telephone in Plaintiff’s presence, and then Defendant Fulks stated that normal program would be run “as you guys are only refusing food.” ( Id. ¶ 11.) Plaintiff and the three other inmates assured Defendant Fulks that the protest was peaceful, and that no one would refuse staff orders. (Id.)

         According to Plaintiff, he and Defendants Fulks and Wan discussed the inmates’ grievances, and complaints, and Plaintiff provided those Defendants a list of written grievances, but Fulks and Wan stated that no actions would be taken at that time. (Pl.’s First Decl. ¶¶ 12-13.) Defendant Fulks then insisted that Plaintiff and the other inmates use their influence to stop the hunger strike, or “there would be ‘repercussions.’” (Id. at ¶13.) Plaintiff and the other inmates reminded Defendant Fulks of his promise of no retaliation, and Fulks responded “alright.” (Id.) Plaintiff and the others negotiated between the strike participants and prison officials. The strike participants opted to continue the strike, and Defendant Fulks stated that: normal program would run; the participants would be medically evaluated on March 1, 2004; possible force-feeding by court order could take place; and there would be another meeting on March 1, 2004. (Id. at ¶¶ 14-15.) Defendants Fulks and Wan repeatedly assured Plaintiff and the inmates that it was not against the rules to organize or lead a hunger strike, or to protest or complain through a hunger strike. (Id. at ¶ 16.) Nevertheless, Plaintiff was concerned about retaliation. (Id.)

         On February 28, 2004, the day after the strike started, the Fresno Bee published an article about the hunger strike. (Pl.’s First Decl., ECF No. 190 Exh. B, p. 27.) The next day, February 29, 2004, prison officials turned off all inmate telephones for the duration of the hunger strike.^[1] (Pl.’s First Decl. ¶ 17.) Plaintiff was also escorted to a program office that day, and held in a holding cage for several hours. (Id. at ¶ 18.) Plaintiff saw Defendants Fulks, Adams, Clark and other officials have a meeting in an office in the program area. (Id.) Defendant Fulks then visited Plaintiff and told him, and two other inmates who had been placed in holding cages near him, that “[w]e are going to turn it up a notch.” (Id. ¶19.) Defendant Fulks then ordered for Plaintiff and the other inmates to be placed in administrative segregation, at which time thsee inmates were medically evaluated. (Id. at ¶¶ 19-20.)

         Defendant Lloren was instructed by Defendants Adams, Clark, and others to tell the other inmates involved in the hunger strike that if it continued, the inmates would be transferred to Pelican Bay State Prison. (Decl. of Lloren, ECF No. 168-12, p. 5.) One of the striking inmates, Greenfield, declares that he was specifically informed that Plaintiff and two others were locked up in administrative segregation, were forced to send their property home, were on their way to Pelican Bay State Prison, and the other inmates would receive similar treatment if they did not cease the strike. (Decl. of Alexander Elton Greenfield, ECF No. 198, p. 98 ¶ 4).

         B. Investigation and Plaintiff’s Retention in Administrative Segregation

         The parties agree that after Plaintiff was placed in administrative segregation, the Investigative Services Unit (“ISU”) of SATF investigated the conspiracy allegations against him. (Pl.’s Undisputed Facts ¶ 17.) The results of the investigation were periodically reported to prison officials, including Defendants Adams, Fulks, and Wan. (Pl.’s Undisputed Facts ¶ 21.) Furthermore, while Plaintiff was held in administrative segregation, he was also periodically brought before the ICC. Although not recorded in the reports of the ICC meetings discussed below, Plaintiff declares that during at least two of these meetings, prison officials mentioned as a factor in his retention in administrative segregation his “willingness to take on issues for other inmates.” (Pl.’s First Decl. ¶ 76.) Plaintiff understood this to be a reference to his jailhouse lawyer activities, including his assistance to other inmates with their exhaustion of administrative remedies. (Id.)

         Plaintiff was brought before the ICC for his initial review on March 10, 2004, and Defendant Ward participated in that meeting. (Pl.’s Undisputed Facts ¶¶ 26, 27.) The ICC elected to retain Plaintiff in administrative segregation for ninety (90) days pending the investigation of the conspiracy-to-assault-staff allegations against Plaintiff, and also noted Plaintiff’s history of predatory behavior and violence towards other inmates.^[2] (Id. at ¶ 28; Decl. of Ward ¶ 8.) As discussed above, on March 24, 2004, CSR Scott reviewed the ICC’s report from the March 10, 2004 meeting and other files, and noted that the Patten Report used to support Plaintiff’s placement in administrative segregation was not available in the investigative or central file. (3/24/04 CSR Action Report, Decl. of Frauenheim, Exh. A, ECF No. 168-8, p. 9.)

         According to a report by Defendant Wan (“4/2/04 Report”), “[o]n Friday, April 2, 2004, Facility C concluded the investigation into the hunger strike that involved the Black inmates[, ]” including Plaintiff. (4/2/04 SATF-03-04-02-0074 Incident Report, Decl. of Wan, Exh. A, ECF No. 168-17, p. 10). The 4/2/04 Wan Report further states that Plaintiff was found to be one of the organizers of the hunger strike, and would receive a rules violation report for the specific act of “inciting a hunger strike.” (Id.) Plaintiff contends that he did not think a hunger strike was prohibited because in 2001, he participated in a 1, 000-person hunger strike at Pelican Bay State Prison, and no one was disciplined, including the organizer/leader. (Pl.’s First Decl. ¶ 40.)

         On April 13, 2004, Defendant Tripp wrote Rules Violation Report (“RVR”), Log No. C-04-04-012, and charged Plaintiff with “Inciting a Hunger Strike.” (Pl.’s Undisputed Facts ¶ 35; RVR, Decl. of Tripp., ECF No. 168-16, Exh. A, p. 5; Decl. of Lloren, ECF No. 168-11, Exh. B, p. 10.) The RVR states that the strike was to consist of several stages, including a peaceful strike, a class action inmate appeal, boarding up cell windows and a physical confrontation with the staff during cell extractions, and a sit-down strike with an assault on staff when the inmates would be forced to return to their housing unit. In support of this information, the RVR cites the Patten Report. (Id.)

         The RVR also states, based on other confidential information, that Plaintiff was one of the organizers of the hunger strike, and he approached others to participate in the strike, as well as pressured African-American inmates to participate in the strike. (Decl. of Lloren, ECF No. 168-11, Exh. B, p. 10.) The RVR also states that a gang investigator found that Plaintiff admitted that he was approached to organize the strike by other inmates, and the purpose of the strike was to gain the attention of the administration and to get media attention through the strike. Other sources revealed that Plaintiff instructed his fiancée to organize a picket at SATF on February 29, 2004. Finally, the RVR discussed that additional medical staff was assigned to deal with the strike, that refused meals were disposed of, that modified program was required, staff was re-distributed for escort and security duties, and non-involved inmates also had their program affected by the strike. (Id.) The RVR was reviewed by Correctional Sergeant Gallagher, and classified as a serious offense by Defendant Schottgen. (Decl. of Tripp., ECF No. 168-16, Exh. A, p. 5.)

         The next day, April 14, 2004, Plaintiff appeared before the ICC. (Pl.’s Undisputed Facts ¶ 29.) The ICC requested a 90-day extension of Plaintiff’s retention in administrative segregation on the grounds that the investigation of the conspiracy-to-assault-staff allegation was ongoing. (Id. at ¶ 30; Decl. of Frauenheim ¶ 10.) The extension was approved. (April 14, 2004 CDC 128G, Decl. of Frauenheim, Exh. A, ECF No. 168-8, p. 10.) The ICC also noted that in March 2004, CSR Scott had noted that the Patten Report was not available, but at this time, a confidential Patten Report was now located in the central file. (Id.) The ICC further noted that the Patten Report had a date correction from February 29, 2004 to March 9, 2004. (Id.) A few days after the ICC hearing, on April 16, 2004, Plaintiff was served with the RVR. (Pl.’s First Decl. ¶ 31.)

         On May 14, 2004, Plaintiff appeared before Lieutenant Beeler for a disciplinary hearing, but the hearing was postponed. (Pl.’s First Decl. ¶ 41.) Plaintiff next appeared before the ICC on May 26, 2004, and Defendants Wan and Frauenheim participated in that meeting. (Pl.’s Undisputed Facts ¶ 31.) The ICC again requested an additional 90-day extension of Plaintiff’s retention in administrative segregation on the grounds that the investigation into the conspiracy-to-assault-staff-allegations was still ongoing, and the extension was approved. (Id. at ¶ 32.; Decl. of Frauenheim ¶ 10; Decl. of Wan ¶ 15; May 26, 2004 CDC 128G, Decl. of Frauenheim, Exh. A, ECF No. 168-8, pp. 11-12.)

         C. End of Investigation and Plaintiff’s First Hearing

         By July 2004, the investigation into whether Plaintiff had been involved in a conspiracy to assault staff had been officially concluded. The parties agree that the investigation ultimately indicated that there was insufficient information to substantiate a charge of conspiracy to assault staff against Plaintiff. (Pl.’s Undisputed Facts ¶ 22.) The parties also agree that information from the investigation revealed Plaintiff was one of the leaders of the hunger strike. (Id.)

         On July 29, 2004, Defendant Lloren conducted a hearing on the charge against Plaintiff of “Inciting a Hunger Strike.” (Pl.’s Undisputed Facts ¶ 36.) Plaintiff pleaded not guilty to the charge, (Pl.’s First Decl. ¶ 48), but Defendant Lloren found Plaintiff guilty, (Pl.’s Undisputed Facts ¶ 36). Defendant Lloren prepared the portion of the RVR related to the hearing, and submitted it for review. (Decl. of Lloren ¶¶ 8-9.) Defendant Lloren could not assess Plaintiff any loss of credits despite finding Plaintiff guilty of inciting a hunger strike, because the hearing on those charges was not held within the required time frame.^[3] (Id. at ¶ 7.)

         The parties dispute the reason why the hearing was not held until July 2004. They agree that the ISU reported to Defendant Adams in March 2004 that it had completed its investigation into Plaintiff’s alleged involvement in a conspiracy to assault staff. (Pl.’s Undisputed Facts ¶ 20; Decl. of Adams in Supp. of Defs.’ Reply (“2nd Adams Decl.”), ECF No. 207-1, ¶¶ 4-7, 9). Therefore, Plaintiff argues that any hearing should have occurred shortly thereafter, and the delay in his hearing and retention in administrative segregation during the delay was retaliatory. (Pl.’s Undisputed Facts ¶ 23.)

         Defendants contend that although the ISU’s investigation ended in March 2004, the ISU did not formally conclude the investigation by issuing a Form 128-B at that time, which prevented the ICC from finding that the investigation was complete, and further prevented it from changing its recommendation to retain Plaintiff in administrative segregation. ( Id. ¶¶ 10-11.) Defendants contend that the investigation was formally concluded sometime in July 2004, and Plaintiff’s hearing followed shortly thereafter. (See Decl. of Lloren ¶ 7; see also 1st Adams Decl.¶ 12.) Specifically, they contend that sometime in July 2004, Defendant Frauenheim was reviewing documents and reports from the investigation, and became aware that it was complete, but that the Form 128-B had not yet issued. (Decl. of Frauenheim in Supp. of Defs.’ Reply (“2nd Frauenheim Decl.”), ECF No. 207-3, ¶ 17.) Therefore, on July 26, 2004, Defendant Frauenheim issued a Form 128-B, formerly closing the investigation.^[4] (Id.)

         Plaintiff next appeared before the ICC on August 18, 2004. Defendants Clark and Frauenheim participated in that ICC meeting. (Pl.’s Undisputed Facts ¶ 33.) At the August 18, 2004 ICC meeting, the ICC noted that the investigation of the conspiracy-to-assault-staff allegations had been concluded, and that there was insufficient information to substantiate a charge on those allegations. (Id. at ¶ 34.) The ICC also discussed the RVR against Plaintiff of inciting a hunger strike, and noted its adjudication was not yet complete. (3/24/04 CSR Action Report, ECF No. 168-8, p. 14.) The ICC requested a 90-day extension of Plaintiff’s retention in administrative segregation, pending the resolution of the inciting-a-hunger-strike charges. (Pl.’s Undisputed Facts ¶ 34.)

         Plaintiff next appeared before the ICC on August 25, 2004, and Defendant Frauenheim participated in the meeting. The ICC noted the guilty finding on the charge against Plaintiff of “Inciting a Hunger Strike.” The ICC further noted Plaintiff’s disciplinary history, his history of gang involvement, and his admitted role as a leader among inmates.^[5] The ICC elected to retain Plaintiff in administrative segregation on Segregated Housing Unit (“SHU”) status, to assess and impose an expected 12-month term, and to transfer Plaintiff to another institution. (Pl.’s Undisputed Facts ¶ 38.)

         The CSR did not approve Plaintiff’s transfer to the SHU because of issues with the RVR pertaining to the “Inciting a Hunger Strike” charge. (Pl.’s Undisputed Facts ¶ 39.) Defendant Lloren, as the Senior Hearing Officer (“SHO”), inadvertently included a first draft of the “Findings” section with the final version of the RVR that was submitted to his supervisor for review. (Decl. of Lloren ¶ 8.) Also, in reviewing the RVR, the CSR noted “(1) two different sets of SHO findings in the RVR; (2) the findings were ‘boilerplate in nature’; (3) staff witnesses were denied without a supporting statement by the SHO; [and] (4) [t]he circumstances of the RVR refers to a Confidential Report that is misdated thus the CDC 1030 is not present, nor is the report.” (10-20-04 Form CDC 128G, Decl. of Frauenheim, Exh. D, p. 18.)

         On August 26, 2004, Defendant Hense wrote a letter to Plaintiff’s fiancée in response to her correspondence to Jean Woodford, Director of the California Department of Corrections. (August 26, 2004 Letter, ECF No. 198, pp. 135-36.) Among the issues addressed was whether Plaintiff was suffering reprisals for participation in a hunger strike. Defendant Hense wrote that an individual inmate has a right to participate in a hunger strike if he chooses to do so, but it is a rules violation to instigate a group hunger strike, and that Plaintiff had used his position as a MAC representative to pass information regarding and organize the strike. Defendant Hense further wrote that although Plaintiff was asked to communicate with the strike participants in an attempt to resolve the issues being protested in the strike, this was done before information was received that he was one of the organizers of the strike, which was an abuse of his MAC privileges. The letter concludes that not all information about the matter could be disclosed to Plaintiff’s fiancée, but Plaintiff was being disciplined for leading a hunger strike. (Id.)

         Plaintiff next appeared before the ICC on October 20, 2004. Defendants Wan and Frauenheim participated in that ICC meeting. At that meeting, the ICC addressed the deficiencies in the RVR noted by the CSR, and the fact that the case had been referred to the Chief Disciplinary Officer (“CDO”) for review. The ICC vacated the 12-month SHU term and requested an additional 40-day extension of Plaintiff’s retention in administrative segregation, pending the review by the CDO. The CSR noted the request, and directed a status update no later than November 19, 2004. After review by the CDO, the RVR was ordered to be re-issued and re-heard. (Pl.’s Undisputed Facts ¶¶ 40-42.)

         D. Re-issuance of RVR, Re-Hearing, and Outcome of Re-Hearing

         In November 2004, the RVR was re-written by Defendant Tripp, reviewed by Correctional Sergeant Gallagher, and classified as a serious offense by Defendant Wan. (Re-issued RVR, Decl. of Field, ECF No. 168-7, Exh. A, p. 7.) Correctional Officer S. Mata was assigned as the investigator for the re-issued RVR. (Pl.’s Undisputed Facts ¶ 43.)

         Plaintiff next appeared before the ICC on November 17, 2004, and Defendants Wan and Frauenheim participated in that meeting. (Pl.’s Undisputed Facts ¶ 44.) The ICC noted that the previous RVR had been ordered to be re-issued and re-heard. (Id. at ¶ 45.) The ICC also noted Plaintiff’s history of gang involvement and a confidential memorandum stating that Plaintiff should be viewed as a serious threat to the mainline population. The ICC requested a 90-day extension of Plaintiff’s retention in administrative segregation, pending resolution of the newly issued RVR. (Id.)

         Plaintiff contends that, sometime in December 2004, he was informed by Defendant Frauenheim that Defendant Adams appointed Defendant Field to a “special review” to determine whether the hunger strike leaders could “legally” be found guilty of the charges against them. (Pl.’s First Decl. ¶ 56-58.) Plaintiff next appeared before the ICC on January 26, 2005. Defendants Lloren and Frauenheim participated in that ICC meeting. The ICC noted that at that time that the re-issued RVR was still in the adjudication process. The ICC further noted its security concern with the fact that Plaintiff had demonstrated leadership skills among the inmate population, and that his release from administrative segregation would lead to additional unrest among the inmates, creating safety and ...