United States District Court, E.D. California
VINCENT C. BRUCE, Plaintiff
v.
JEANNE WOODFORD, et al., Defendants.
ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANTSâ MOTION FOR
SUMMARY JUDGMENT (ECF NO. 168) ORDER DENYING PLAINTIFFâS
CROSS-MOTION FOR SUMMARY JUDGMENT (ECF NO. 188) ORDER
REGARDING PLAINTIFFâS OBJECTIONS TO AND MOTION TO STRIKE
DEFENDANTSâ EVIDENCE (ECF NO. 194) ORDER REGARDING
PLAINTIFFâS 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 ...