United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. His third amended
complaint (ECF No. 62) centers on his challenge to a
determination validating him as a gang member, and his
resultant assignment to a security housing unit. Defendants
Brackett, Cate, Fernberg, Gamburg, Gower, Harrison, Marquez
and Miner move to dismiss. ECF No. 73. Plaintiff has
filed an opposition (ECF No. 76) and defendants have filed a
reply (ECF No. 81). For the reasons that follow,
defendants’ motion should be granted.
Defendants’ Request to Seal Documents
addressing the substantive issues, the court will address
defendants’ notice of request to seal documents (ECF
No. 73-10) which they rely on in their motion to dismiss.
to that notice, defendants have requested that the court seal
three documents - defendants’ exhibits X, Y & Z -
which were used as source items in plaintiff’s gang
validation. These documents are:
Exhibit X- a June 2, 2008 confidential memorandum documenting
a debriefing report;
Exhibit Y- a February 14, 2007 confidential memorandum
documenting a debriefing report; and
Exhibit Z- a September 10, 2001 confidential memorandum
documenting a debriefing report.
rely on these documents in their motion, but note that the
information contained therein is deemed confidential by the
California Department of Corrections and Rehabilitation. The
rationale for this confidentiality is both well supported and
compelling. Notably, the declaration of A. Murphy states that
these debriefing report memoranda should be kept confidential
because their dissemination would pose a potential safety
risk to the debriefing inmates who provided gang-related
intelligence. ECF No. 73-9 ¶¶ 9-10. Accordingly,
defendants’ request is granted.
review of plaintiff’s third amended complaint pursuant
to 28 U.S.C. § 1915A, the court determined that it
raised two potentially cognizable claims: (1) a Fourteenth
Amendment due process claim against defendants Gamberg,
Brackett, Marquez, and Harrison for validating plaintiff as a
gang member; and (2) that defendants Cate, Gower, Fernberg,
and Miner violated his Fourteenth Amendment right to due
process and Eighth Amendment right to be free of cruel and
unusual punishment by assigning him to the Security Housing
Unit (“SHU”) for an extended period of time. ECF
No. 65. The relevant facts alleged in support of these claims
are as follows:
Due Process Claim for Gang Member Validation
was housed at the High Desert State Prison
(“HDSP”) in July of 2010. ECF No. 62 at ¶17.
On July 20, 2010, plaintiff’s property was confiscated
because of an ongoing investigation into his alleged
overfamiliarity with a member of the unit kitchen staff.
Id. ¶¶ 20-21. He alleges that later that
day, he was interviewed by defendant Gamberg who threatened
him with gang validation and a transfer to the SHU if he did
not confess the specifics of this overfamiliarity.
Id. ¶¶ 22-23, 28-29. Plaintiff declined to
confess and stated that he did not know what overfamiliarity
Gamberg was talking about. Id. ¶ 24.
Gamberg and Brackett began reviewing evidence in preparation
for plaintiff’s validation. Id. ¶¶
31-32. On August 5, 2010, plaintiff attended a classification
hearing and was assigned to administrative segregation
pending the outcome of his validation. Id. ¶
33. Plaintiff was interviewed by defendant Brackett on August
17, 2010 and copies of the source documents used in the
validation were to be issued to plaintiff. Id.
¶ 34. He claims, however, that Brackett did not provide
the information he relied on to reach a validation
decision. Id. Now, plaintiff alleges that the source
items are false and unreliable and that defendants Gamberg
and Brackett failed to investigate the reliability of each
item. Id. ¶¶ 35-43. Regardless, he was
validated as a member of the Northern Structure
(“NS”) gang on September 3, 2010 by defendants
Marquez and Harrison. Id. ¶ 45. Plaintiff
contends that the procedure and evidence used to validate him
was inadequate. Id. ¶¶ 34-44.
Due Process and Cruel and Unusual Punishment Claims Related
to SHU Assignment
November 4, 2010, plaintiff appeared at a classification
hearing where defendant Gower assigned him to an
indeterminate term in the SHU as a result of his validation.
Id. ¶ 52. He states that he was unable to
comply with defendants Gower and Cate’s requirement
that he ‘debrief’ or reveal all gang-related
knowledge because he was wrongly validated. Id.
was transferred to the California Correctional Institution
(“CCI”) SHU on June 30, 2011. Id. ¶
84. On October 18, 2012, a gang investigator at CCI
determined that plaintiff had no current gang activity that
warranted continued assignment to the SHU. Id.
¶ 89. Plaintiff was not assigned back to general
population until September 11, 2013, however. Id.
¶ 110. He claims that this delay was caused by
defendants Fernberg and Miner’s failure to refer his
case to the Departmental Review Board in a timely manner.
Id. ¶¶ 97-103. Plaintiff alleges that his
prolonged assignment to the SHU caused him severe physical
and mental pain due to: (1) sensory deprivation and lack of
human contact; (2) inability to use recreational equipment;
(3) inadequate access to the library; and (4) inadequate
nutrition. Id. ¶ 74.
deny that their actions violated plaintiff’s
constitutional rights and argue that his complaint fails to
allege facts sufficient to state a claim for relief.