Milliken v. Studervant

• Court: District Court, N.D. California
• Decided: May 15, 2020
• Docket: 5:18-cv-05326
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 JAMES M. MILLIKEN, Case No. 18-CV-05326-LHK

13 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR 14 v. SUMMARY JUDGMENT

15 C. STURDEVANT,1, et al., Re: Dkt. No. 45 16 Defendants. 17 18 Plaintiff is a California prisoner incarcerated at California State Prison, Sacramento (“CSP- 19 Sac”). Plaintiff was previously incarcerated at Pelican Bay State Prison (“PBSP”) and California 20 State Prison, Corcoran (“CSP-Cor”). See Dkt. No. 1. Pursuant to 42 U.S.C. § 1983, plaintiff filed 21 a pro se civil rights complaint alleging that he had been improperly placed in solitary confinement 22 at PBSP. See id. The Court dismissed plaintiff’s complaint with leave to amend, see Dkt. No. 6, 23 and plaintiff filed a First Amended Complaint (“FAC”), see Dkt. No. 9. 24 25 1 This defendant was originally identified as “C. Studervant.” Dkt. No. 1. Subsequent filings 26 reveal that the correct name for this defendant is “C. Sturdevant.” See Dkt. No. 45, Ex. B (administrative materials referring to “Sturdevant”). The Court sua sponte corrects this 27 defendant’s name in the case caption. See Fed. R. Civ. P. 60(a) (“The court may correct a clerical mistake . . . whenever one is found in . . . the record.”). The Clerk shall correct the docket. 1 The Court screened plaintiff’s FAC pursuant to 28 U.S.C. § 1915A and found plaintiff had 2 alleged cognizable claims that his placement in solitary confinement (1) violated the First 3 Amendment, (2) violated the Eighth Amendment, and (3) violated the Fourteenth Amendment. 4 See Dkt. No. 11 (“Screening Order”) at 2. Plaintiff claimed that eleven defendants, all PSBP 5 employees, were responsible for these alleged wrongs: Correctional Officers C. Sturdevant 6 (“Officer Sturdevant”) and D. Bradbury (“Officer Bradbury”); Sergeants M.K. Anderson 7 (“Sergeant Anderson”) and J. Schrag (“Sergeant Schrag”); Correctional Counselor II A. Bond 8 (“Counselor Bond”); Institutional Gang Investigators C. Parry (“Investigator Parry”), J. Puente 9 (“Investigator Puente”), and A. Schaad (“Investigator Schaad”) (together, “Investigators”); 10 Classification Staff Representative D. Garcia (“Representative Garcia”); Senior Hearing Officer 11 Captain D. Wilcox (“Captain Wilcox”); and Chief Deputy Warden R.K. Bell (“Chief Deputy 12 Warden Bell”) (collectively, “defendants”). See FAC at 2. 13 Defendants moved for summary judgment (“MSJ”). Dkt. No. 45. After two extensions of 14 time, plaintiff filed an Opposition (“Opposition”). Dkt. No. 52. Defendants timely filed a Reply 15 (“Reply”). Dkt. No. 55. For the reasons stated below, the Court GRANTS in part and DENIES 16 in part defendants’ MSJ. 17 I. BACKGROUND 18 A. Discussion Of Evidence To Be Considered 19 Defendants filed an Answer which objected to certain statements within the FAC. See 20 generally, Dkt. No. 36 (“Answer”). In addition, defendants’ Reply contains numerous objections 21 to the statements in the declaration plaintiff attached to his Opposition (“Plaintiff’s Declaration”). 22 See Reply at 8-14. Accordingly, before the Court provides the factual background and addresses 23 the MSJ, the Court will clarify what evidence it considers in this Order. 24 1. Defendants’ Evidence 25 Along with the MSJ, defendants filed declarations from non-defendant Deputy Attorney 26 General Tartaglio, see Dkt. No. 45-3 (“Tartaglio Declaration”), and defendant Chief Deputy 27 Warden Bell, see Dkt. No. 45-4 (“Bell Declaration”), as well as exhibits to these declarations. 1 Plaintiff did not object to these materials, see generally, Opp. & Pl.’s Decl., and so the Court 2 considers them in their entirety. 3 2. Plaintiff’s Evidence 4 a. First Amended Complaint 5 As discussed infra I.A.2.b, both plaintiff and defendants rely on the FAC and exhibits 6 thereto in making arguments in favor of and against the MSJ. Accordingly, the Court addresses 7 defendants’ objections to the FAC. 8 Plaintiff attached thirty exhibits to the FAC. See Dkt. No. 9, Exs. A-AE. Defendants do 9 not challenge Exhibits A-F or Exhibits H-AE. See generally, Dkt. No. 36 (“Answer”). 10 Accordingly, the Court considers those documents in their entirety. 11 Exhibit G to the FAC is a declaration filed by another inmate that purports to summarize a 12 conversation between that inmate and Sergeant Anderson. See FAC, Ex. G. Defendants argue 13 that Exhibit G is an inaccurate summary of that conversation. See Ans, ¶¶ 14, 16. The Court will 14 consider Exhibit G in its entirety for the purposes of summary judgment because factual disputes 15 must be construed in plaintiff’s favor at summary judgment. See Leslie v. Grupo ICA, 198 F.3d 16 1152, 1158 (9th Cir. 1999) (stating that, at summary judgment, courts must view the evidence in 17 the light most favorable to the nonmoving party). 18 b. Opposition To Instant Motion 19 Along with the Opposition, plaintiff filed a declaration (“Plaintiff’s Declaration”) which 20 purports to summarize the relevant facts. See generally, Dkt. No. 53. Defendants object to 21 numerous portions of Plaintiff’s Declaration. Reply at 8-14. 22 Defendants’ six pages of objections are too numerous to recount individually, and so the 23 Court will address the objections as categories. Taking each category in turn, defendants’ 24 objections to speculative and improper expert testimony are sustained, but defendants’ objections 25 to hearsay and to plaintiff’s reliance on the pleadings are overruled. 26 In multiple paragraphs of Plaintiff’s Declaration, plaintiff purports to relate the opinion or 27 motivation of another person. See, e.g., Pl.’s Decl. ¶ 8 (stating what the Investigators were “only 1 concerned with”); see also id. ¶¶ 23, 31, 41, 48, 49, 52, 53, 78, 94, 106. Defendants object to such 2 evidence as speculative, not within plaintiff’s personal knowledge, and lacking foundation. See 3 Reply at 9-14. The Court will not consider speculative statements. See Fed. R. Evid. 602 (a 4 witness must speak from personal knowledge); Fed. R. Evid. 701(a) (allowing only testimony that 5 is “rationally based on the witness’s perception”). Accordingly, the Court will consider the 6 challenged paragraphs only to the extent plaintiff relates facts within his personal knowledge. 7 In multiple paragraphs of Plaintiff’s Declaration, plaintiff purports to relate the legal 8 meaning of a document, constitutional amendment, statute, or rule. See, e.g., Pl.’s Decl. ¶ 15 9 (arguing that a document was a valid and enforceable contract); see also id., ¶¶ 51, 52, 54, 55, 57, 10 59. 71, 74, 77, 79, 83, 87, 94. Defendants object that plaintiff’s analysis of these materials 11 constitutes lay witness opinion that is not admissible under Federal Rule of Evidence 701. See 12 Reply at 9-13. In this case, plaintiff has not argued that he is offering an expert opinion, and he 13 has set forth no facts establishing that he would qualify as an expert of any kind. See generally, 14 FAC, Opp., & Pl’s. Decl. Pursuant to Federal Rule of Evidence 701, a lay witness may testify 15 only as to those opinions or inferences which are “(a) rationally based on the witness’s perception, 16 (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue, and 17 (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 18 702.” Fed. R. Evid. 701. Accordingly, lay witness opinions are admissible only to the extent that 19 they are “based upon . . . direct perception of the event, are not speculative, and are helpful to the 20 determination” of factual issues before the jury. United States v. Freeman, 498 F.3d 893, 905 (9th 21 Cir. 2007). The Court agrees with defendants that plaintiff’s opinions about the legal meanings of 22 documents and events do not fall within the scope of Rule 701. Accordingly, the Court will 23 disregard those portions of the challenged paragraphs in which plaintiff purports to state the legal 24 meaning of a document or an event. 25 In Plaintiff’s Declaration, plaintiff states that non-defendant Officer Rush told him of an 26 inconsistency in the materials on which the UCC relied to validate plaintiff as a gang member. 27 See Pl.’s Decl. ¶ 78. Defendants object that the repetition of Rush’s statement is hearsay. See 1 Reply at 12 (citing Fed. R. Evid. 802). However, Federal Rule of Evidence 801 provides that a 2 statement is not hearsay if that “statement is offered against an opposing party and” “was made by 3 the party’s . . . employee on a matter within the scope of that relationship and while it existed.” 4 Fed. R. Evid. 801(d)(2). Here, non-defendant Officer Rush was employed at PBSP and therefore 5 arguably an employee of Chief Deputy Warden Bell when the statement was made, and gang 6 validation proceedings appear to have been within the scope of non-defendant Officer Rush’s 7 employment. See Pl.’s Decl. ¶ 100 (stating that non-defendant Officer Rush was present while 8 plaintiff was interviewed as part of a debriefing process). Accordingly, the information before the 9 Court suggests that this statement is not hearsay and may be considered at summary judgment. 10 Plaintiff states that non-defendant Officer Rush told plaintiff, that in non-defendant Officer 11 Rush’s “opinion, [plaintiff] had cooperated” in the debriefing process. See Pl.’s Decl. ¶ 105. 12 Defendants object that the repetition of Rush’s statement is hearsay. See Reply at 14 (citing Fed. 13 R. Evid. 802). However, “[a] statement of the declarant’s then-existing state of mind” is an 14 exception to the rule against hearsay. Fed. R. Evid. 803(3). Non-defendant Officer Rush’s 15 opinion regarding plaintiff’s cooperation arguably falls into this exception and may be considered 16 at summary judgment. Moreover, factual disputes must be construed in plaintiff’s favor at 17 summary judgment. See Leslie, 198 F.3d at 1158 (stating that, at summary judgment, courts must 18 view the evidence in the light most favorable to the nonmoving party). 19 Finally, defendants object to plaintiff’s attempt to “incorporate [his] FAC and any 20 declarations, and all exhibits” into Plaintiff’s Declaration as a violation of Federal Rule of Civil 21 Procedure 56(c)(4). See Reply at 14. However, defendants rely on plaintiff’s FAC and exhibits 22 throughout the MSJ and Reply rather than re-attaching independent records. See e.g., MSJ at 1 23 (relying on the FAC, FAC Exs. E & O), 2 (relying on FAC, FAC Exs. O, Q, & R), 3 (relying on 24 FAC), 4 (relying on FAC, FAC Exs. C, L), 5 (relying on FAC). Although in an ideal world 25 plaintiff’s Opposition and Plaintiff’s Declaration would stand alone, the Court will not penalize 26 plaintiff for relying on the same documents cited throughout defendants’ MSJ. Accordingly, 27 defendants’ objection is overruled. 1 B. Factual Background 2 The following facts, given in chronological order, are viewed in the light most favorable to 3 plaintiff. See Leslie, 198 F.3d at 1158 (at summary judgment, courts view the evidence in the light 4 most favorable to the nonmoving party). Unless otherwise indicated, the facts are undisputed. 5 In May 2017, plaintiff was housed with general population prisoners at PBSP. MSJ at 1. 6 On May 2, 2017, plaintiff asked to be moved to a sensitive needs yard (“SNY”). FAC ¶ 1. As 7 defendants explain, “[SNY]s house inmates who would be in danger if placed on a General 8 Population Yard.” MSJ at 1. 9 Following his request, plaintiff was taken to “a holding cage.” FAC ¶ 1. Plaintiff was 10 approached by Investigator Parry, Investigator Puente, and Investigator Schaad , who asked 11 plaintiff “about inmates, inmate activity, and the whereabouts of contraband.” Id. Plaintiff was 12 unable to provide “information of value.” Id. Plaintiff stated that, when he was unable to provide 13 valuable information, the Investigators “became irritated and began raising their voices” and 14 threatened to “throw [his] ass back out on [general population].” Id. Defendants deny that the 15 Investigators made threats. See Ans. ¶ 1. 16 In the FAC, plaintiff stated that he “was placed in solitary confinement” after this 17 interaction with the Investigators. FAC ¶¶ 1, 2. Defendants object that plaintiff was placed in 18 administrative segregation (“Ad-Seg”), not solitary confinement. See Ans. ¶¶ 2, 33, 75. In the 19 Opposition, plaintiff states that he was “retained in Administrative Segregation . . . for twenty- 20 seven (27) months.” Opp. at 1; see also id. at 2, 5 16, 17, 18, 21, 22, 23, 25. 21 Two days later, on May 4, 2017, Investigator Puente and Investigator Schaad had a second 22 interaction with plaintiff. FAC ¶ 3. Plaintiff again failed to provide valuable information. See id. 23 Plaintiff stated that, when he failed for a second time to provide valuable information, Investigator 24 Puente threatened to “validate” plaintiff as a gang member “so [plaintiff will] have to debrief. . . . 25 You will sit here or go to the [secured housing unit] until you debrief.” Id. Plaintiff asked if his 26 “options are to snitch or be punished,” and states that defendants confirmed that those were his 27 options. Id. Defendants argue that these threats never took place. Ans. ¶ 3. 1 On May 11, 2017, an Institutional Classification Committee (“ICC”) met to review 2 plaintiff’s housing request. Id. ¶ 10. Plaintiff had a hearing with the ICC. Id. In that hearing, 3 Chief Deputy Warden Bell “explained to [plaintiff] that he will be held in ASU for 60 days” while 4 staff reviewed his request for a transfer to SNY. Id.; see also FAC, Ex. E (stating that plaintiff 5 would be held in Ad-Seg for 60 days). Thus, the review was expected to conclude on July 10, 6 2017. This review would involve staff “review[ing] [plaintiff’s] C-file, evaluat[ing] enemy 7 concerns, and determin[ing] where [plaintiff] can be safely housed.” Id. This review was to be 8 conducted by Sergeant Schrag. FAC, Ex. E at 2. 9 On May 22, 2017, Officer Sturdevant told plaintiff that Officer Sturdevant had found 10 artwork related to a prison gang in plaintiff’s property. FAC ¶ 11. Plaintiff states that he told 11 Officer Sturdevant that he “was never in possession of any [gang] art work,” and that plaintiff 12 believed that “he was be[ing] framed.” Id. ¶ 12. Defendants argue that plaintiff did not dispute 13 possession of the gang artwork during the May 22, 2017 conversation between plaintiff and 14 Officer Sturdevant. Ans. ¶ 12. However, although disciplinary charges were initially filed for 15 possession of this artwork, see FAC ¶ 22, the charges were dismissed, and plaintiff was found not 16 guilty. See MSJ at 4 (stating the charges were dismissed because PBSP did not meet deadlines); 17 see also FAC ¶ 24 (stating that plaintiff was found “not guilty based on time frame/constraints and 18 due process”); FAC, Ex. L at 11 (“Subject was found Not Guilty.”). 19 On August 3, 2017, plaintiff attended another hearing with the ICC. FAC ¶ 30. In that 20 hearing, the ICC explained that plaintiff was under investigation for suspected ties to a prison 21 gang. FAC, Ex. O at 17. The ICC’s report of that hearing states that Sergeant Schrag had found 22 plaintiff “uncooperative” in his review and had recommended plaintiff be returned to general 23 population. See id. However, the ICC was concerned that it would be “unsafe” to return plaintiff 24 to general population. See id. Instead, the ICC decided that “retention in ASU [was] still 25 warranted,” while plaintiff’s suspected gang ties were investigated. Id. Plaintiff informed the ICC 26 that he believed it would violate the settlement in Ashker v. Brown, No. 09-5796-CW (N.D. Cal.), 27 for plaintiff to be “retained pending validation” of gang ties. FAC ¶ 30. The ICC decided to 1 extend plaintiff’s retention in Ad-Seg by 90 days – to November 1, 2017 – to investigate 2 plaintiff’s alleged gang ties. See FAC, Ex. O (“refer to CSR for 90 day ASU extension”). 3 On August 10, 2017, plaintiff had a third hearing with the ICC. See FAC ¶ 31. The ICC 4 confirmed that it had decided to retain plaintiff in Ad-Seg. The ICC updated the extension of 5 plaintiff’s retention in Ad-Seg, to run for 90 days from August 10, 2017. See FAC, Ex, O. 6 Plaintiff states that, as of August 10, 2017, “the validation process [to investigate 7 plaintiff’s suspected gang ties] had not even begun yet.” FAC ¶ 31. Plaintiff did not receive a 8 “validation packet” until August 15, 2017. Id. ¶ 34. Plaintiff states that “the validation 9 investigation was complete” as of September 14, 2017. Id. 10 On September 22, 2017, Classification Staff Representatives (“CSR”) audited plaintiff’s 11 case. FAC ¶ 35. The auditor informed the PBSP ICC that “ASU retention pending validation is 12 inconsistent with” rules governing CDCR, “and is not an approved reason to retain the inmate i[n] 13 segregated housing.” FAC, Ex. R. The auditor gave the PBSP ICC 30 days to “clearly 14 document[]” why plaintiff was being retained in Ad-Seg. Id. 15 On October 26, 2017 – four days after the conclusion of the 30-day extension granted by 16 CSR – plaintiff attended a fourth hearing with ICC. FAC ¶ 37. At that hearing, the ICC 17 recommended plaintiff be transferred to an SNY at another prison. Id. 18 On October 31, 2017, it was recommended that plaintiff be validated as a member of the 19 Aryan Brotherhood Prison Gang. Id. ¶ 38; see also MSJ at 2. Because of this pending validation, 20 plaintiff’s transfer to an SNY yard at another prison was cancelled. FAC ¶ 39. 21 Plaintiff states that CDCR regulations require a prison to hold a hearing with the prisoner 22 and the Unit Classification Committee (“UCC”) within 30 days of a prisoner being validated as a 23 gang member. Id. ¶ 40 (citing C.C.R. tit. 15 § 3378.2(d). Plaintiff did not meet with the UCC 24 until January 26, 2018 – 87 days after he was validated. Id. ¶ 42. In this hearing, plaintiff was 25 “found guilty” of being affiliated with the Aryan Brotherhood. Id. ¶ 52. 26 Plaintiff was transferred to CSP-Cor on February 23, 2018. See FAC, Ex. R. at 6. 27 1 Plaintiff remained at CSP-Cor until July 19, 2019, when plaintiff was transferred to CSP- 2 Sac. MSJ at 22. On August 14, 2019, plaintiff was moved from Ad-Seg to “a non-SNY facility, 3 which houses inmates with same or similar case factors as inmates typically housed in an SNY 4 facility.” Id. Thus, plaintiff remained in Ad-Seg for twenty-seven months, from May 2, 2017, 5 when he initially requested a transfer to SNY at PBSP, until he was placed in a non-SNY facility 6 at CSP-Sac on August 24, 2019. 7 C. Procedural Background 8 Plaintiff filed the instant civil rights action on August 23, 2018. See Dkt. No. 1 at 3 9 (signed and dated August 23, 2018). The Court dismissed plaintiff’s complaint with leave to 10 amend. See Dkt. No. 6. 11 Plaintiff filed a first amended complaint (“FAC”). See Dkt. No. 9. The Court screened 12 plaintiff’s FAC (“Screening Order”) and found that plaintiff “stated cognizable claims that 13 defendants have violated his rights under the First, Eighth, and Fourteenth Amendment to the 14 United States Constitution.” Dkt. No. 11 at 2. Specifically, the Court found plaintiff had 15 sufficiently alleged that defendants placed him in solitary confinement as an act of retaliation; that 16 plaintiff’s long stay in solitary confinement was a disproportionate punishment; and that plaintiff 17 was deprived of meaningful periodic review of his solitary confinement.2 See id. 18 The Court ordered the Clerk of the Court to serve the eleven defendants with a Notice of 19 Lawsuit and Request for Waiver of Service, the FAC and exhibits, and the Screening Order. See 20 id. at 3. Ten defendants returned an executed waiver of service. See Dkt. Nos. 25-34. 21 Classification Staff Representative D. Garcia (“Representative Garcia”) did not return a waiver of 22 service, see generally, Dkt. In their Answer to the FAC (“Answer”), defendants stated that they 23 did not know Representative Garcia’s whereabouts, and that Representative Garcia had not been 24 served. See Dkt. No. 36 at 1. Despite this notice that plaintiff needed to provide more information 25

26 2 In the Screening Order, the Court inadvertently referred to plaintiff’s claim for cruel and unusual punishment as deriving from the 14th Amendment, and his claim that he was deprived of 27 meaningful periodic review as deriving from the 8th Amendment. See Screening Order at 2. As defendants recognized, this error reversed the two amendments. See MSJ at 17. 1 regarding Representative Garcia before Representative Garcia could be served, plaintiff did not 2 provide any additional information to assist in identifying Representative Garcia, did not provide 3 an address for Representative Garcia, and did not show cause for plaintiff’s failure to provide that 4 information. See generally, Dkt. Accordingly, Representative Garcia is DISMISSED from this 5 action without prejudice. See Fed. R. Civ. P. 4(m) (“If a defendant is not served within 90 days 6 after the complaint is filed, the court . . . must dismiss the action without prejudice against that 7 defendant . . . .”). 8 Defendants filed a motion for summary judgment (“MSJ”), together with exhibits, on 9 October 4, 2019. See Dkt. No. 45. Plaintiff filed an opposition to the MSJ (“Opposition”), 10 together with a declaration (“Plaintiff’s Declaration”) on January 30, 2020. See Dkt. No. 52. On 11 February 20, 2020, defendants timely filed a reply (“Reply”) to the Opposition. See Dkt. No. 55. 12 1. Events And Relief At Issue 13 In the FAC, plaintiff discussed events spanning from May 2, 2017 to February 15, 2018, 14 see FAC ¶¶ 1-64, and requested monetary relief and an injunction ordering CDCR to expunge 15 plaintiff’s gang validation from his file, see FAC at 41. 16 In the MSJ, defendants argued that any implied request for an injunction ordering 17 plaintiff’s transfer from Ad-Seg to SNY would be improper because, after the FAC was filed, 18 plaintiff was transferred out of Ad-Seg. See MSJ at 8. Defendants also argued that, because 19 plaintiff was re-validated as a gang member in June 2019, any expungement of the gang validation 20 conducted at PBSP would be moot. See id. Plaintiff agrees that any request to be transferred from 21 Ad-Seg to SNY is moot. See Opp. at 9-10. Plaintiff also states that “[t]he re-validation was 22 committed by another prison in another United States District Court’s area, so Plaintiff is dealing 23 with those issues there.” See id. at 10. 24 The Court agrees that because plaintiff is no longer in Ad-Seg, any implied request to be 25 transferred from Ad-Seg is moot. The Court agrees with defendants that, in light of plaintiff’s re- 26 validation by another prison, the request to expunge plaintiff’s validation at PBSP is moot. 27 1 Defendants argue, and plaintiff appears to concede, that plaintiff’s initial placement in Ad- 2 Seg was appropriate. See MSJ at 3 (arguing that “[p]laintiff’s primary grievance” concerns 3 hearings on and after August 3, 2017); see also FAC ¶ 66 (stating that plaintiff’s life was in danger 4 in general population from the moment plaintiff requested placement in SNY); see also Tartaglio 5 Decl., Ex. A at 47:25 to 48:4 (“The fact that I request[ed] SNY literally puts my life [ ] in 6 danger.”), 102:22-23 (“lf I go to B Yard, which is a hundred yards . . . I’d be murdered 7 instantly.”). Accordingly, the Court examines only whether plaintiff’s retention in Ad-Seg on and 8 after the August 3, 2017 ICC hearing was appropriate. 9 Plaintiff sues only defendants who were employed at PBSP and complains only of events 10 that occurred at PBSP. See FAC at 2; see generally, id. Moreover, excerpts from plaintiff’s 11 central file, attached as an exhibit to the MSJ, reveal that CSP-Cor placed plaintiff in Ad-Seg so 12 that plaintiff could debrief, and re-validated plaintiff as a gang associate on June 20, 2019. See 13 Tartaglio Decl., Ex. B at 5, 8. Plaintiff does not complain of these separate actions in the FAC. 14 See generally, FAC (discussing events on or before February 15, 2018). Accordingly, events at 15 CSP-Cor are not at issue in this litigation. 16 The relief and events at issue are thus: plaintiff’s request for monetary damages for his 17 retention in PBSP’s Ad-Seg between August 3, 2017 and plaintiff’s transfer to CSP-Cor on 18 February 23, 2018. See FAC, Ex. R. at 6. 19 II. LEGAL STANDARD 20 Summary judgment is proper where the pleadings, discovery and affidavits show that there 21 is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a 22 matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of 23 the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a 24 material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for 25 the nonmoving party. See id. 26 A court will grant summary judgment “against a party who fails to make a showing 27 sufficient to establish the existence of an element essential to that party’s case, and on which that 1 party will bear the burden of proof at trial [,] . . . since a complete failure of proof concerning an 2 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 3 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the burden of 4 identifying portions of the record that demonstrate the absence of a genuine issue of material fact. 5 Id. The burden then shifts to the nonmoving party to “go beyond the pleadings, and by [his] own 6 affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate 7 specific facts showing that there is a genuine issue for trial.” See id. at 324 (quotations omitted). 8 Once the burden shifts to the non-moving party, that party “must show more than the mere 9 existence of a scintilla of evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 10 2010) (citing Liberty Lobby, 477 U.S. at 252). “[T]he non-moving party must come forth with 11 evidence from which a jury could reasonably render a verdict in the non-moving party’s favor.” 12 Id. (citing Liberty Lobby, 477 U.S. at 252). If the nonmoving party fails to make this showing, 13 “the moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323. 14 It is not the task of the district court to scour the record in search of a genuine issue of 15 triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Plaintiff has the burden of 16 identifying with reasonable particularity the evidence that precludes summary judgment. Id. “The 17 district court need not examine the entire file for evidence establishing a genuine issue of fact.” 18 Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29, 1031 (9th Cir. 2001) (even if there is 19 evidence in the court file which creates a genuine issue of material fact, a district court may grant 20 summary judgment if the opposing papers do not include or conveniently refer to that evidence). 21 A court’s function on a summary judgment motion is not to make credibility 22 determinations or weigh conflicting evidence on a disputed material fact. See T.W. Elec. Serv. Inc. 23 v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed 24 in the light most favorable to the nonmoving party, and the inferences to be drawn from the facts 25 must be viewed in a light most favorable to the nonmoving party. See id. at 631. 26 27 1 III. DISCUSSION 2 Plaintiff alleges that defendants violated his rights under the First, Eighth, and Fourteenth 3 Amendments. Specifically, plaintiff alleges that defendants retained him in Ad-Seg in retaliation 4 for refusing to “snitch,” in violation of his First Amendment rights; that his prolonged retention in 5 Ad-Seg was a disproportionate punishment, in violation of his Eighth Amendment rights; and that 6 defendants violated due process when they decided to retain plaintiff in Ad-Seg, in violation of his 7 Fourteenth Amendment rights. 8 Defendants counter that plaintiff cannot state a claim for violation of the First Amendment 9 because there is no First Amendment right not to “snitch”; that plaintiff’s claim for violation of the 10 Eighth Amendment fails because plaintiff was not being punished when he was placed in Ad-Seg; 11 and that plaintiff was given all due process required under the Fourteenth Amendment when 12 defendants decided to retain him in Ad-Seg. 13 The Court will discuss each claim and argument in turn. 14 A. Plaintiff’s First Amendment Claim Fails. 15 Plaintiff alleges that defendants unlawfully retaliated against plaintiff by causing him to be 16 held in solitary confinement. As noted supra, defendants argue that plaintiff was held in Ad-Seg, 17 which differs from solitary confinement. This difference is not material to the First Amendment 18 analysis but will be discussed infra. Plaintiff alleges that this retaliation was motivated by 19 plaintiff’s refusal to inform on other inmates during a debriefing interview. FAC ¶¶ 69-74. 20 Defendants argue that plaintiff fails to state a claim for First Amendment retaliation because 21 refusing to inform on other inmates is not “protected conduct” under the First Amendment. See 22 MSJ at 9-10. 23 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 24 elements: (1) An assertion that a state actor took some adverse action against an inmate 25 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 26 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 27 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); 1 accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under 2 § 1983 for retaliation must allege that he was retaliated against for exercising his constitutional 3 rights and that the retaliatory action did not advance legitimate penological goals, such as 4 preserving institutional order and discipline). Retaliation by a state actor for the exercise of a 5 constitutional right is actionable under 42 U.S.C. § 1983, even if the act, when taken for different 6 reasons, would have been proper. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 7 274, 283–84 (1977). Retaliation, though it is not expressly referred to in the Constitution, is 8 actionable because retaliatory actions may tend to chill individuals’ exercise of constitutional 9 rights. See Perry v. Sindermann, 408 U.S. 593, 597 (1972). 10 The prisoner must show that the type of activity he was engaged in was constitutionally 11 protected, that the protected conduct was a substantial or motivating factor for the alleged 12 retaliatory action, and that the retaliatory action advanced no legitimate penological interest. See 13 Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (inferring retaliatory motive from 14 circumstantial evidence). The prisoner bears the burden of pleading and proving absence of 15 legitimate correctional goals for the conduct of which he complains. Pratt, 65 F.3d at 806. At that 16 point, the burden shifts to the prison official to show, by a preponderance of the evidence, that the 17 retaliatory action was narrowly tailored to serve a legitimate penological purpose. See Schroeder 18 v. McDonald, 55 F.3d 454, 461–62 (9th Cir. 1995) (defendants had qualified immunity for their 19 decision to transfer prisoner to preserve internal order and discipline and maintain institutional 20 security). 21 Here, plaintiff’s First Amendment claim fails because plaintiff cannot show that his refusal 22 to debrief was constitutionally protected, and so does not fulfill the third element of a retaliation 23 claim. 24 First, the Ninth Circuit has suggested in a prisoner’s civil rights case that refusing to 25 provide information is not conduct protected by the First Amendment. In Resnick v. Hayes, the 26 Ninth Circuit considered a claim that the plaintiff was “confined . . . in the prison’s Special 27 Housing Unit (SHU) pending a disciplinary hearing.” 213 F.3d 443, 445 (9th Cir. 2000). Like the 1 instant case, Resnick argued that his disciplinary hearing had been postponed, and his confinement 2 in the SHU thus prolonged, “so that [the Warden] could pressure Plaintiff into divulging 3 information about correctional officers who were bringing narcotics into the prison.” Id. at 446. 4 “In essence, [Resnick] claim[ed] that Defendants delayed his hearing and thereby kept him 5 confined in the SHU in retaliation for his refusal to provide them with information regarding 6 correctional officers who were bringing drugs into the prison.” Id. at 449. The Ninth Circuit 7 affirmed the district court’s decision to dismiss the case at the pleading stage, noting, among other 8 defects, that Resnick had not identified any injury: “Plaintiff did not snitch, . . . Plaintiff has not 9 alleged that his First Amendment rights have been chilled or infringed.” Id. The Ninth Circuit’s 10 conclusion suggests that Resnick’s First Amendment rights were not implicated by his refusal to 11 snitch. See Wheat v. Cty. of Alameda, No. C 11-4509 MEJ, 2012 WL 966949, at *3 (N.D. Cal. 12 Mar. 21, 2012) (distinguishing Resnick from the case at bar, because Resnick did not involve a 13 person “exercising his First Amendment rights”); see also Mullins v. Stewart, 252 F. App’x 837, 14 838 (9th Cir. 2007) (where plaintiff was held in administrative segregation, and the only way to be 15 released was to debrief, this was “really a Fifth Amendment self-incrimination claim that 16 debriefing did not implicate”). 17 Second, in a non-prisoner case, the Ninth Circuit expressly found that “[t]here is no 18 constitutional right not to ‘snitch.’” United States v. Paguio, 114 F.3d 928, 930 (9th Cir. 1997) 19 (citing United States v. Gardner, 611 F.2d 770, 773 (9th Cir. 1980)). The United States Supreme 20 Court has held that, “[i]n the First Amendment context, . . . a prison inmate retains those First 21 Amendment rights that are not inconsistent with his status as a prisoner . . . .” Pell v. Procunier, 22 417 U.S. 817, 822 (1974) (emphasis added). Thus, the scope of a prisoner’s First Amendment 23 rights is equal to or less than the scope of non-prisoners’ First Amendment rights. See id. If, 24 under Paguio, a non-prisoner has “no constitutional right not to ‘snitch,’” then neither does a 25 prisoner. To conclude otherwise would be to grant prisoners within the Ninth Circuit greater First 26 Amendment rights than those given to non-prisoners. Indeed, district courts have applied Paguio 27 to civil rights cases from prisoners, and construed Paguio to mean that a prisoner’s refusal to 1 snitch is not protected conduct. See Elliott v. Caballero, No. 19-CV-06005-PJH, 2020 WL 2 587198, at *2 (N.D. Cal. Feb. 6, 2020) (dismissing retaliation claim, where prisoner alleged he 3 was retaliated against for refusing to snitch because First Amendment rights were not implicated).3 4 Finally, defendants are entitled to qualified immunity on plaintiff’s First Amendment 5 retaliation claim. Government officials are entitled to qualified immunity from suit if the officials 6 did not “violate clearly established statutory or constitutional rights of which a reasonable person 7 would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A right is clearly 8 established if it was “sufficiently clear that every reasonable official would have understood that 9 what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Although case 10 law need not be directly on point, “existing precedent must have placed the statutory or 11 constitutional question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per 12 curiam). Here, as discussed above, there is substantial case law at the trial and appellate levels 13 suggesting that plaintiff’s refusal to debrief was not protected by the First Amendment. 14 Accordingly, a reasonable official would not have understood that retaining plaintiff in Ad-Seg for 15 failing to debrief violated plaintiff’s constitutional rights. 16 Because plaintiff cannot show that refusing to snitch is constitutionally protected activity, 17 plaintiff’s First Amendment claim fails. Accordingly, the Court GRANTS defendants’ motion for 18 summary judgment as to plaintiff’s First Amendment claim. 19 20

21 3 See also Mora-Contreras et al., v. Peters, et al., No. 6:18-CV-00678-SB, 2020 WL 2089479 at *5 (D. Or. Apr. 30, 2020) (“[T]he Ninth Circuit has held that ‘there is no constitutional right not to 22 snitch.’”); see also Garland v. Redding, No. CV 16-1428-FMO (KK), 2016 WL 1222202, at *4 23 (C.D. Cal. Mar. 28, 2016) (“Plaintiff fails to show his refusal to debrief is protected conduct.”); Buchanan v. Garza, No. 08CV1290 BTM WVG, 2012 WL 1059894, at *6 (S.D. Cal. Mar. 27, 24 2012) (noting that “refusal to ‘snitch’ is not considered ‘protected conduct,’” but finding plaintiff had alleged other bases for retaliation); Williams v. Foote, No. CV 08-2838-CJC JEM, 2011 WL 25 6968033, at *15 (C.D. Cal. Oct. 5, 2011) (“choosing not to snitch is not protected conduct”); Guillen v. Fox, No. 1:03-CV-06004-LJO, 2011 WL 1134459, at *3 (E.D. Cal. Mar. 28, 2011) 26 (same); Dixon v. Gonzales, No. 1:09-CV-00172-OWW-DLB-PC, 2009 WL 3416005, at *3 n.1 27 (E.D. Cal. Oct. 21, 2009) (same); Simpson v. Feltsen, No. 2:09CV00302MSB, 2010 WL 1444487, at *3 (E.D. Cal. Apr. 9, 2010) (same). 1 B. Plaintiff’s Eighth Amendment Claim Fails. 2 Plaintiff argues that his lengthy confinement in PBSP’s Ad-Seg violated the Eighth 3 Amendment. See FAC ¶¶ 65-68, 93-94. Defendants argue that plaintiff cannot state a claim for 4 violation of the Eighth Amendment. The Court concludes that plaintiff was confined in Ad-Seg 5 for administrative reasons, rather than in solitary confinement for punitive reasons. For that 6 reason, defendants are correct, and plaintiff cannot state an Eighth Amendment claim. 7 1. Plaintiff Was Isolated For Administrative And Not Punitive Reasons. 8 Before the Court can evaluate plaintiff’s Eighth Amendment claim, the Court must resolve 9 the factual question of whether plaintiff was held in Ad-Seg as an administrative matter, or in 10 solitary confinement as a punishment. The Court notes that plaintiff has referred to Ad-Seg and 11 solitary confinement interchangeably. See FAC ¶¶ 9, 30, 31, 33, 69, 75, 78(2), 84, 89 (stating 12 plaintiff was “being held in solitary confinement”); see also id. ¶¶ 23 (referring to being placed in 13 the “SHU”), 25 (same); but see id. ¶¶ 31, 66, 78(2) (referring to “Ad. Seg.”). In their Answer, 14 defendants “object[ed] to describing administrative segregation as “solitary confinement” and 15 “den[ied] that ‘solitary confinement’ is an accurate characterization or description of 16 administrative segregation.” Ans. ¶ 2; see also id. ¶¶ 33, 75 (objecting to the use of the phrase 17 “solitary confinement”). 18 Although at first glance the difference between Ad-Seg and solitary confinement appears 19 to be an issue of semantics, the difference is material to plaintiff’s Eighth Amendment claim. As 20 the Ninth Circuit has explained, “California’s policy of assigning suspected gang affiliates to the 21 SHU is not a disciplinary measure, but an administrative strategy designed to preserve order in the 22 prison and protect the safety of all inmates. Although there are some minimal legal limitations, . . . 23 the assignment of inmates within the California prisons is essentially a matter of administrative 24 discretion.” Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997) (emphases added); see also 25 Griffin v. Gomez, 741 F.3d 10, 19 (9th Cir. 2014) (noting the difference between PBSP’s Ad-Seg 26 and solitary confinement units, in an analysis of whether plaintiff’s confinement in Ad-Seg 27 violated the Eighth Amendment); see also Hewitt v. Helms, 459 U.S. 460, 479-80 (1983) (Stevens, 1 J. dissenting) (although arguing that “in all material respects, conditions in administrative custody 2 are the same as those in disciplinary segregation,” noting that “[t]he reasons for placing one 3 inmate in administrative and another in punitive segregation may be different”). Thus, whether 4 plaintiff was placed in Ad-Seg or in solitary confinement reveals whether that placement was 5 administrative or punitive. If the former, the Court must consider whether the procedure by which 6 plaintiff was placed and retained in Ad-Seg violated plaintiff’s due process rights under the 7 Fourteenth Amendment; if the latter, the Court must also consider whether plaintiff’s Eighth 8 Amendment rights were violated. See Ashker v. Governor of Cal., No. C 09-5796 CW, 2014 WL 9 2465191, at *3-6 (N.D. Cal. June 2, 2014) (certifying a “Due Process Class” defined as inmates 10 sentenced to indeterminate SHU terms where “none of whom have been or will be afforded 11 meaningful review or procedurally adequate review,” and an “Eighth Amendment Class” defined 12 as inmates imprisoned in “SHU under . . . conditions” of “deprivation of basic human needs”). 13 Here, as explained infra III.B.1, it is apparent that plaintiff was placed in Ad-Seg for 14 administrative reasons. This does not mean that plaintiff’s placement and retention in Ad-Seg was 15 appropriate, or that defendants acted reasonably. Rather, this finding means that plaintiff’s 16 retention does not state a claim under the Eighth Amendment for the reasons explained infra 17 III.B.2-3. Instead, plaintiff’s retention in Ad-Seg must be analyzed under the Fourteenth 18 Amendment. See infra III.C. 19 a. Plaintiff Does Not Carry His Burden To Show His Placement In 20 Ad-Seg Was Punitive, Rather Than Administrative. 21 As the Court has stated, factual disputes must be construed in plaintiff’s favor at summary 22 judgment. See Leslie, 198 F.3d at 1158 (stating that, at summary judgment, courts must view the 23 evidence in the light most favorable to the nonmoving party). If evidence produced by the moving 24 party conflicts with evidence produced by the nonmoving party, the judge must assume the truth 25 of the evidence set forth by the nonmoving party with respect to that fact. See id. However, the 26 non-moving party must still identify or submit at least some competent evidence in support of his 27 or her claim. See Soto v. Sweetman, 882 F.3d 865, 873 (9th Cir. 2018) (pro se inmate not entitled 1 to equitable tolling because he failed to include any allegations in his complaint that he could not 2 proceed with grievance process until after an investigation was completed; he failed to submit any 3 declaration, affidavit or other competent evidence in his opposition to summary judgment; and 4 first raised the issue in response to the district court’s show cause order). 5 In the FAC, plaintiff appeared to be bringing a claim that his retention in Ad-Seg was a 6 disproportionate punishment for a rules violation. See FAC ¶¶ 11, 22, 24, 50-52 (appearing to 7 argue that plaintiff was retained in solitary confinement because of a rules violation). Specifically, 8 plaintiff stated that he had been given a Rules Violation Report (“RVR”) by Officer Sturdevant for 9 possession of gang-related artwork, which plaintiff disputed possessing. See id. ¶¶ 11-12, 22 . 10 Plaintiff alleged that this RVR was part of defendants’ retaliation against him, and that “if 11 [plaintiff was] found guilty” of the RVR, this would delay plaintiff’s transfer to SNY. See id. ¶ 12 23. Although plaintiff was found not guilty of this RVR on July 17, 2017, see id. ¶ 24, plaintiff 13 repeatedly connected his retention in Ad-Seg to defendants’ efforts to validate plaintiff as a gang 14 member. See id. ¶¶ 3 (“my options are to snitch or be punished”), 23 (stating that the RVR was an 15 attempt to prolong plaintiff’s retention in Ad-Seg), 25, 39, 69, 79, 80, 87, 93. It therefore 16 appeared to the Court that plaintiff believed that his retention in Ad-Seg was punishment for the 17 alleged possession of gang-related artwork. Plaintiff also repeatedly stated that he had been held 18 in “solitary confinement” for an unreasonable length of time. See id. ¶¶ 9, 36, 69, 93. Liberally 19 construing the FAC, as the Court is required to do in screening a pro se civil rights complaint, see 20 Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1988), the Court accordingly 21 found plaintiff had stated a claim for disproportionate punishment in violation of the Eighth 22 Amendment. 23 In the instant motion, defendants introduced evidence that plaintiff’s placement and 24 retention in Ad-Seg were for administrative, rather than disciplinary, reasons. First, defendants 25 explain in the MSJ that plaintiff was placed in Ad-Seg to protect him from attacks by general 26 population prisoners, and to protect SNY inmates from potential attacks by plaintiff. See MSJ at 27 11-15. Second, defendants provide admissible evidence to support this explanation, in the form of 1 a declaration from Chief Deputy Warden Bell, that plaintiff was housed in Ad-Seg for 2 administrative reasons, rather than in solitary confinement for punitive reasons. See Bell Decl. ¶¶ 3 12-19 (explaining that plaintiff was transferred to Ad-Seg for administrative and safety reasons, 4 and “temporarily retained[ed]” there during his gang validation investigation). Excerpts from 5 plaintiff’s central file (the “File”), attached as exhibits to the MSJ, also support defendants’ 6 contention. The File repeatedly states that plaintiff’s potential release from Ad-Seg, either to 7 general population or to SNY “present[ed] an immediate threat to the safety and security of 8 self/others, as well as [to] the security of the institution.” Tartaglio Decl., Ex. B at 5, 10, 39, 43, 9 52. The File also states that plaintiff was placed in Ad-Seg because of an “investigation” and to 10 “protect [the] integrity of [an] ongoing investigation,” rather than as punishment. Id. at 4, 9, 11, 11 17, 18, 19, 41, 54; see also Bell Decl. ¶¶ 17-19, 22, 28 (stating that plaintiff was retained in Ad- 12 Seg during an investigation into his gang ties, and while administrators evaluated appropriate 13 housing placement in light of plaintiff’s potential gang ties). Auditor notes in the File also state 14 that plaintiff was retained in Ad-Seg while potential gang ties were being investigated. See 15 Tartaglio Decl., Ex. B at 3 (noting that plaintiff’s extended retention in Ad-Seg was inappropriate 16 and informing the PBSP ICC that “[Ad-Seg] retention pending validation . . . is not an approved 17 reason to retain the inmate i[n] segregated housing.”). Thus, defendants have identified evidence 18 that demonstrates plaintiff’s placement and retention in Ad-Seg were for administrative reasons. 19 Once the moving party has identified evidence which shows there is no genuine issue of 20 material fact, the nonmoving party must “by [his] own affidavits, or by the depositions, answers to 21 interrogatories, and admissions on file, designate specific facts showing that there is a genuine 22 issue for trial.” Celotex Corp., 477 U.S. at 324 (quotations omitted). The nonmoving party must 23 identify this evidence “with reasonable particularity.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th 24 Cir. 1996). Thus, to rebut defendants’ showing that plaintiff was placed in Ad-Seg for 25 administrative purposes, plaintiff needed to present evidence that showed the placement and 26 retention were punitive. 27 1 Plaintiff does not challenge defendants’ representation that he was held in Ad-Seg for 2 administrative purposes or point to any facts suggesting plaintiff’s retention in Ad-Seg was 3 punitive. See generally, Opp. First, it appears that in deposition plaintiff disavowed any claim 4 that his placement and retention in Ad-Seg were punitive. See Tartaglio Decl., Ex. A at 108:2-13 5 (stating that plaintiff did not know what Rules Violation Report (“RVR”) the Court was discussing 6 in the Screening Order), 110:4-11 (stating that the June, 26, 2017 RVR did not lead to plaintiff 7 spending additional time in Ad-Seg), 150:7-21 (same). Second, plaintiff states that he “was being 8 retained in Ad-Seg pending validation,” rather than as punishment. Pl.’s Decl. ¶ 44; see also id. ¶¶ 9 48 (“the Defendant[]s elected to retain me in Ad-Seg pending completion of the Validation 10 process”), 49, 50. This echoes defendants’ representation that plaintiff was retained in Ad-Seg 11 because plaintiff’s gang ties were being investigated, rather than because plaintiff had been found 12 guilty of a transgression. Third, although plaintiff received a Rules Violation Report (“RVR”) on 13 June 26, 2017 for alleged possession of gang artwork, plaintiff was found not guilty of possessing 14 such artwork, and the RVR was dismissed. See id. ¶¶ 29-31. Because plaintiff had been found not 15 guilty of this offense, there was nothing for which plaintiff could be punished. Accord Opp. at 23- 16 24 (arguing that if plaintiff had been found guilty of the RVR, “it would have resulted in being 17 placed in a two-year step-down program . . . That would have been a pretty steep punishment.”) 18 (emphasis added). Fourth, plaintiff did not receive a validation hearing until January 26, 2018, 19 and was not validated as a gang member until January 29, 2018. See id. ¶¶ 72, 100. Thus, if 20 punishment were meted out for plaintiff’s alleged membership in a gang, it could not have been 21 until on or after January 29, 2018. In this litigation, however, plaintiff challenges only his 22 retention in Ad-Seg at PBSP between August 3, 2017 and February 15, 2018. See supra, I.C.1. 23 All but the last two weeks of plaintiff’s time in PBSP’s Ad-Seg occurred before plaintiff was 24 validated as a gang member. Finally, plaintiff appears to concede that his isolation was 25 administrative, rather than punitive. Plaintiff states repeatedly in the Opposition that he was 26 “retained in Administrative Segregation.” See id. at 1 (stating plaintiff was “retained in 27 Administrative Segregation”); see also id. at 2, 5 16, 17, 18, 21, 22, 23, 25. Plaintiff argues in the 1 Opposition that he “remains free . . . from any serious disciplinaries since 2014,” which suggests 2 that plaintiff’s placement in Ad-Seg was not for disciplinary reasons. Id. at 5. 3 If plaintiff had pointed to any evidence that his placement in Ad-Seg was punitive, then the 4 reason for his placement would be in dispute. Because plaintiff does not, the Court is presented 5 with undisputed evidence from defendants that plaintiff’s placement in Ad-Seg was 6 administrative. The Court cannot ignore this undisputed evidence. See L. F. v. Lake Wash. Sch. 7 Dist. #414, 947 F.3d 621, 625 (9th Cir. 2020) (“[A] court’s obligation at the summary judgment 8 stage to view the evidence in the light most favorable to the non-movant does not require that it 9 ignore undisputed evidence produced by the movant.”); see also Wall v. County of Orange, 364 10 F.3d 1107, 1111 (9th Cir. 2004) (“The district court may not resolve disputed issues of material 11 fact by crediting one party’s version of events and ignoring another.”). 12 Accordingly, the Court finds that plaintiff was held in Ad-Seg for administrative reasons, 13 not in solitary confinement for punitive reasons. 14 2. Because Plaintiff’s Placement In Ad-Seg Was Not Punitive, He Cannot 15 State An Eighth Amendment Claim For Disproportionate Punishment. 16 In the Screening Order, the Court found that plaintiff had stated a cognizable claim that he 17 had been subjected to disproportionate punishment for a rules violation, in violation of the Eighth 18 Amendment. See Screening Order at 2. Because plaintiff’s placement and retention in Ad-Seg 19 were not in fact punitive, this claim is no longer cognizable. 20 Defendants argue that the Court’s recognition of a disproportionality claim in the 21 Screening Order “appears to have been a mistake” and “[t]he third cause of action is more 22 appropriate classified as a Due Process claim under the Fourteenth Amendment.” MSJ at 19 23 (citing case law stating that confinement in Ad-Seg does not constitute cruel and unusual 24 punishment). However, many opinions examine whether solitary confinement may be a 25 “disproportionate” punishment for a transgressive act committed by a prisoner-plaintiff while 26 incarcerated. See, e.g., Griffey v. Borg, 5 F.3d 536 (9th Cir. 1993) (unpublished) (reversing 27 district court dismissal because “a civil rights action alleging that prison officials violated 1 [plaintiff’s] constitutional rights by requiring him to serve a term in administrative segregation 2 disproportionate to the disciplinary charge of which he was found guilty . . . should have been 3 allowed to proceed.”); Toussaint v. Rushen, 553 F. Supp. 1365, 1382 (N.D. Cal. 1983) 4 (“Confinement in administrative segregation may be unconstitutional if imposed arbitrarily and if 5 disproportionate to the reasons purportedly justifying such placement. . . . Review of the evidence 6 presented indicates that many prisoners are forced to endure conditions of administrative 7 segregation which are plainly disproportionate to the offenses, if any, which led to their 8 confinement therein.”), aff’d in part sub nom. Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984); 9 Allen v. Nelson, 354 F. Supp. 505, 510-11 (N.D. Cal.) (“[T]he language of the Eighth Amendment 10 itself is expressed in words of proportionality. Thus, where punitive segregation is imposed for 11 violation of prison rules, the issue often becomes whether the prison penalty is disproportionate to 12 the offense.”), aff’d, 484 F.2d 960 (9th Cir. 1973). These opinions draw an analytical line 13 between situations “in which the physical conditions [of prison] are determined to be so shocking 14 and barbarous that the confinement amounted to cruel and unusual punishment” and situations that 15 “revolve around the formula that a particular solitary confinement constitutes levying a 16 disproportionate penalty against the prisoner. . . . Thus, where punitive segregation is imposed for 17 violation of prison rules, the issue often becomes whether the prison penalty is disproportionate to 18 the offense.” Allen, 354 F. Supp. at 510-511. 19 In the FAC, the Court understood plaintiff to be bringing a civil rights claim that he had 20 been accused of possessing gang-related artwork in violation of prison rules; that he had been 21 placed in solitary confinement as punishment for this rules violation; and that the duration of his 22 term in solitary confinement was so disproportionate to the rules violation as to constitute a 23 violation of the Eighth Amendment. See FAC ¶¶ 11, 22, 24, 50-52 (appearing to argue that 24 plaintiff was retained in solitary confinement because of a rules violation). It has now been made 25 clear that plaintiff was placed in Ad-Seg as a matter of administration, rather than in solitary 26 confinement as a matter of punishment. See supra, III.B.1. Because plaintiff was not being 27 punished, there is no need for the Court to examine whether any punishment was disproportionate. 1 See Allen, 354 F. Supp. at 511 (finding, where prisoner was “not incarcerated” in Ad-Seg “as 2 punishment for committing a prison infraction,” that the court did not need to examine 3 proportionality); see also Fitzgerald v. Procunier, 393 F. Supp. 335, 342 (N.D. Cal. 1975) (“where 4 no disciplinary infraction has been committed, there can be no relationship, disproportionate or 5 otherwise, between the offense and the confinement”); Ruiz v. Cate, No. C 09-2968 MHP (PR), 6 2010 WL 546707, at *4 (N.D. Cal. Feb. 10, 2010) (rejecting argument that placing inmate in SHU 7 on the basis of gang affiliation was “disproportionate,” because the decision “is an administrative 8 matter rather than a disciplinary matter”), aff’d, 436 F. App’x 760 (9th Cir. 2011). Accordingly, 9 plaintiff’s claim that his Ad-Seg retention was a disproportionate punishment fails. 10 3. Plaintiff Cannot State An Eighth Amendment Claim For Cruel And 11 Unusual Punishment Or Deliberate Indifference. 12 In the FAC, Plaintiff alleged claims for cruel and unusual punishment, see FAC ¶¶ 65-68, 13 93-94, which the Court found not cognizable, see generally, Screening Order. In the Opposition, 14 plaintiff appears either to attempt to resuscitate his claim that retention in Ad-Seg constituted cruel 15 and unusual punishment, or to attempt to state a new Eighth Amendment claim that retaining 16 plaintiff in Ad-Seg constituted a deliberate indifference to plaintiff’s safety. See Opp. at 11. 17 To the extent plaintiff attempts to state a new Eighth Amendment claim for indifference to 18 safety, the Court will not consider such a claim because defendants did not receive “fair notice” 19 that plaintiff intended to base a claim on these grounds. See Pickern v. Pier 1 Imports (U.S.), Inc., 20 457 F.3d 963, 969 (9th Cir. 2006) (affirming summary judgment where the complaint did not give 21 fair notice of the factual basis for a claim raised for first time in opposition to summary judgment); 22 see also Castillo v. Wells Fargo Bank, N.A., 554 F. App’x 646, 647 (9th Cir. 2014) (same, where 23 plaintiff pled a retaliation claim but “failed to put [defendant] on notice of her retaliation claims 24 arising from the denial of her transfer request”); see also Saif’ullah v. Cruzen, No. 15-CV-01739 25 LHK, 2017 WL 4865601, at *3 (N.D. Cal. Oct. 26, 2017) (rejecting a claim raised for the first 26 time in opposition), aff’d, 735 F. App’x 415 (9th Cir. 2018); Smith v. Cruzen, No. 14-CV-04791 27 1 LHK, 2017 WL 4865565, at *3 (N.D. Cal. Oct. 26, 2017) (same), aff’d, 735 F. App’x 434 (9th 2 Cir. 2018). 3 To the extent plaintiff attempts to resuscitate his claim for cruel and unusual punishment, 4 defendants are correct that such a claim fails. See MSJ at 19 (citing opinion stating that Ad-Seg is 5 not a cruel and unusual punishment). The Ninth Circuit has long held that an indeterminate 6 sentence in Ad-Seg, without more, does not constitute cruel and unusual punishment in violation 7 of the Eighth Amendment. See Anderson v. County of Kern, 45 F.3d 1310, 1315-16 (9th Cir. 8 1995) (no contact with any other inmate in administrative segregation, either for exercise, day 9 room access or otherwise not cruel and unusual punishment), cert. denied, 516 U.S. 916 (1995). 10 Anderson was a class action brought by inmates housed in Ad-Seg. See id. at 1316. The 11 inmates challenged their inability to interact with other inmates, either during a period of exercise 12 or dayroom use, as violating the Eighth Amendment. See id. The Ninth Circuit observed that 13 “administrative segregation, even in a single cell for twenty-three hours a day, is within the terms 14 of confinement ordinarily contemplated by a sentence.” Id. Accordingly, “the confinement at 15 issue [in that case] [did] not rise to the level of” an Eighth Amendment violation. Id.; see also 16 Toussaint v. Yockey, 722 F.2d 1490, 1494 n.6 (9th Cir. 1984) (more than usual hardships 17 associated with administrative segregation required to state Eighth Amendment claim). 18 Courts have repeatedly interpreted Anderson to mean that “[a]n indeterminate sentence in 19 administrative segregation, without more, does not constitute cruel and unusual punishment in 20 violation of the Eighth Amendment.” Hallman v. Cate, No. C 10-3548 LHK PR, 2010 WL 21 4393902, at *1 (N.D. Cal. Oct. 28, 2010).4 Indeed, since Anderson the Ninth Circuit specifically 22

23 4 See also Collins v. Williams, 536 F. App’x 706, 707 (9th Cir. 2013) (citing Anderson for the proposition that administrative segregation does not violate the Eighth Amendment); Perkins v. 24 Crum, 476 F. App’x 136, 137 (9th Cir. 2012) (same); Ruiz v. Cate, 436 F. App’x 760, 761 (9th Cir. 2011) (same); Amadeo v. Castellaw, 371 F. App’x 763, 764 (9th Cir. 2010) (same); Mitchell 25 v. Minkin, 178 F.3d 1300 n.4 (9th Cir. 1999) (unpublished) (same); Ernest v. Davis, No. 16-CV- 03655-LB, 2017 WL 11435162, at *4 (N.D. Cal. Mar. 20, 2017) (same); France v. Allman, No. 26 15-CV-04078-JSC, 2016 WL 7439577, at *3 (N.D. Cal. Dec. 27, 2016) (same); Arizmendi v. Seman, No. 13-CV-04716-YGR (PR), 2015 WL 4572430, at *16 (N.D. Cal. July 29, 2015) 27 (same); Phillips v. Bramucci, No. C 15-01533 EJD (PR), 2015 WL 4452142, at *6 (N.D. Cal. July 20, 2015) (same); Viera v. Lewis, No. C 12-1497 RS (PR), 2014 WL 3853142, at *4 (N.D. Cal. 1 examined PBSP’s Ad-Seg unit and concluded that administrative placement in that unit does not 2 constitute cruel and unusual punishment. See Griffin, 741 F.3d at 21 (finding the district court 3 abused its discretion in concluding that prisoner’s twenty-month confinement in PBSP’s Ad-Seg 4 unit violated an earlier injunction, which earlier injunction was predicated on the violation of 5 prisoner’s Eighth Amendment rights in PBSP’s SHU). 6 Ninth Circuit precedent squarely bars a claim that plaintiff’s twenty-seven-month retention 7 in Ad-Seg was cruel, and the Court is bound by such precedent. See Griffin, 741 F.3d 10 8 (rejecting Eighth Amendment claim predicated on twenty-month Ad-Seg confinement); see also 9 Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1211 (9th Cir. 2016) (“The district court does not 10 have the authority to ignore circuit court precedent . . . .”); Herrera v. Zumiez, Inc., 953 F.3d 1063, 11 1080 (9th Cir. 2020) (Nelson, D., concurring) (“[B]y deciding this issue in a published opinion, 12 the Ward majority’s pronouncement of California state law now binds any federal district court in 13 the Ninth Circuit that might disagree with Ward . . . because district courts do ‘not have the 14 authority to ignore circuit court precedent’ . . . .”). Accordingly, plaintiff’s claim was not 15 cognizable under Ninth Circuit precedent. 16 Because plaintiff’s retention in Ad-Seg was administrative, rather than disciplinary, 17 plaintiff’s claim for disproportionate punishment fails. As explained above, a claim that plaintiff’s 18 retention in Ad-Seg was cruel and unusual is not cognizable. Accordingly, the Court GRANTS 19 defendants’ motion for summary judgment as to plaintiff’s Eighth Amendment claim. 20 21

23 Aug. 4, 2014) (same); Ferrera v. Lewis, No. C 11-00019 SBA (PR), 2013 WL 3829264, at *7 (N.D. Cal. July 23, 2013) (same); Anderson v. Deleon, No. C 12-6055 SI PR, 2013 WL 892276, at 24 *4 (N.D. Cal. Mar. 8, 2013) (same); Shotwell v. Brandt, No. C 10-5232 CW PR, 2012 WL 6569402, at *3 (N.D. Cal. Dec. 17, 2012) (same); McDaniel v. Grounds, No. C 11-0555 WHA 25 PR, 2011 WL 1113477, at *2 (N.D. Cal. Mar. 25, 2011) (same); Reyes v. Horel, No. C 08-4561 RMW PR, 2010 WL 1222286, at *8 (N.D. Cal. Mar. 24, 2010) (same); Acuna v. Chrones, No. C 26 07-5423 VRW (PR), 2008 WL 818522, at *2 (N.D. Cal. Mar. 25, 2008) (same); Andrade v. Gonzalez, No. C02-4019 JF(PR), 2007 WL 1241946, at *4 (N.D. Cal. Apr. 27, 2007) (same); Hart 27 v. Cambra, No. C 96-0924 SI, 1997 WL 564059, at *8 (N.D. Cal. Aug. 22, 1997) (same), aff’d, 161 F.3d 12 (9th Cir. 1998). 1 C. Plaintiff Has Raised Triable Issues Of Fact As To Whether His Fourteenth 2 Amendment Due Process Rights Were Violated. 3 Plaintiff argues that his retention in Ad-Seg violated his Fourteenth Amendment right to 4 due process. Specifically, plaintiff argues that he should not have been retained in Ad-Seg based 5 on a suspected gang tie, and that he was entitled to, but did not receive, periodic meaningful 6 reviews by PBSP’s ICC of plaintiff’s retention in Ad-Seg. The Court will examine each argument 7 in turn. 8 The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution protects 9 individuals against governmental deprivations of life, liberty or property without due process of 10 law. Interests that are procedurally protected by the Due Process Clause may arise from two 11 sources: the Due Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 12 215, 224-27 (1976). In the prison context, these interests are generally ones pertaining to liberty. 13 Changes in conditions so severe as to affect the sentence imposed in an unexpected manner 14 implicate the Due Process Clause itself, whether or not they are authorized by state law. See 15 Sandin v. Conner, 515 U.S. 472, 484 (1995) (citing Vitek v. Jones, 445 U.S. 480, 493 (1980) 16 (transfer to mental hospital), and Washington v. Harper, 494 U.S. 210, 221-22 (1990) (involuntary 17 administration of psychotropic drugs)). Deprivations that are less severe or more closely related to 18 the expected terms of confinement may also amount to deprivations of a protected liberty interest, 19 provided that the liberty in question is one of “real substance.” See Sandin, 515 U.S. at 477-87. 20 An interest of “real substance” will generally be limited to freedom from restraint that imposes an 21 “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” 22 or “will inevitably affect the duration of [a] sentence.” Id. at 484, 487. The placement of an 23 inmate in a highly restrictive housing setting may amount to a deprivation of a liberty interest of 24 “real substance” within the meaning of Sandin. See Wilkinson v. Austin, 545 U.S. 209, 224 25 (2005). 26 When there is a deprivation of a liberty interest of real substance, the procedural 27 protections to which the prisoner is entitled depend on whether the deprivation results from a 1 disciplinary decision or an administrative decision. If it is a disciplinary decision, the procedural 2 protections required are: written notice, time to prepare for the hearing, a written statement of 3 decision, allowance of witnesses and documentary evidence when not unduly hazardous, and aid 4 to the accused where the inmate is illiterate or the issues are complex. Wolff v. McDonnell, 418 5 U.S. 539, 564-67 (1974). The Due Process Clause requires only that prisoners be afforded those 6 procedures mandated by Wolff and its progeny; it does not require that prisons comply with their 7 own, more generous procedures. See Walker v. Sumner, 14 F.3d 1415, 1419–20 (9th Cir. 1994), 8 overruled on other grounds by Sandin, 515 U.S. 472. A prisoner’s right to due process is violated 9 “only if he [is] not provided with process sufficient to meet the Wolff standard.” Id. at 1420. There 10 also must be some reliable evidence to support the disciplinary decision. See Superintendent v. 11 Hill, 472 U.S. 445, 454 (1985); Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). 12 “Ascertaining whether [the some evidence] standard is satisfied does not require examination of 13 the entire record, independent assessment of the credibility of witnesses, or weighing of the 14 evidence. Instead, the relevant question is whether there is any evidence in the record that could 15 support the conclusion reached” by the disciplinary hearing officer. Superintendent, 472 U.S. at 16 455-56. 17 “[A] lesser quantum of process is due when a prisoner is placed in administrative 18 segregation than is required by Wolff.” See Toussaint v. McCarthy, 801 F.2d 1080, 1099 (9th Cir. 19 1986) (citing Hewitt, 459 U.S. at 476). For an administrative decision, due process requires that 20 prison officials hold an informal non-adversary hearing within a reasonable time after the prisoner 21 is segregated, inform the prisoner of the reason segregation is being considered, and allow the 22 prisoner to present his views. Toussaint, 801 F.2d at 1100, 1104-05. 23 Here, defendants concede that “prisoners have a liberty interest in avoiding extended 24 confinement in segregation housing without meaningful, periodic review of their housing 25 placement.” MSJ at 19 (citing Brown v. Or. Dep’t of Corr., 751 F.3d 983, 987–88 (9th Cir. 26 2014)). Accordingly, the Court assumes that plaintiff has identified a potential liberty interest and 27 examines only whether plaintiff was given the required level of process. 1 1. Plaintiff’s Placement In Ad-Seg Did Not Violate His Fourteenth 2 Amendment Right to Due Process. 3 Defendants argue, and plaintiff appears to concede, that plaintiff’s initial placement in Ad- 4 Seg on May 2, 2017, was appropriate. See MSJ at 3 (arguing that “[p]laintiff’s primary grievance” 5 concerns hearings on and after August 3, 2017); see also FAC ¶ 66 (stating that plaintiff’s life was 6 in danger in general population from the moment plaintiff requested placement in SNY); see also 7 Tartaglio Depo., Ex. A at 47:25 to 48:4 (“The fact that I request[ed] SNY literally puts my life [ ] 8 in danger.”), 102:22-23 (“lf I go to B Yard . . . I’d be murdered instantly.”). Accordingly, the 9 Court concludes that plaintiff’s initial placement in Ad-Seg was appropriate. 10 Plaintiff was initially placed in Ad-Seg on May 2, 2017 because plaintiff requested to be 11 transferred to SNY. On August 3, 2017, the PBSP ICC decided to retain plaintiff in Ad-Seg for a 12 different reason: because plaintiff was being investigated for suspected gang ties. Although 13 plaintiff was already in Ad-Seg on that date, the August 3, 2017 hearing may be construed as a 14 separate decision to place plaintiff in Ad-Seg. Accordingly, the Court will also examine whether 15 plaintiff’s retention in Ad-Seg on and after the August 3, 2017 ICC hearing was appropriate. 16 As noted above, plaintiff was entitled to minimal process before being placed in Ad-Seg. 17 Plaintiff does not dispute that he received a hearing on August 3, 2017, in which plaintiff was 18 informed of the reason he was being placed in an isolated condition and was able to present his 19 views. See generally, Opp.; see also FAC ¶ 30 (describing hearing); see also Toussaint, 801 F.2d 20 at 1100, 1104-05 (identifying the process due when a prisoner is isolated for administrative 21 reasons). Accordingly, the Court concludes that plaintiff received the due process required by the 22 Fourteenth Amendment before he was placed in Ad-Seg. 23 2. Plaintiff Raised Material Issues Of Fact As To Whether His Retention 24 In Ad-Seg Violated His Fourteenth Amendment Right to Due Process. 25 Plaintiff argues that he was retained in Ad-Seg without meaningful periodic review. FAC 26 ¶¶ 75-88. Defendants argue that plaintiff received reviews that were both meaningful and 27 periodic. See MSJ at 20-24. 1 a. Plaintiff Received Periodic Reviews. 2 Defendants argue that, as plaintiff received four reviews in the approximately nine months 3 that he was incarcerated in Ad-Seg at PBSP, the periodic review requirement was met. See MSJ at 4 20-21 (chronicling plaintiff’s hearings before the ICC). Plaintiff concedes that he received 5 “periodic” reviews, but argues the reviews were not “timely” because, under CDCR regulations, 6 plaintiff should have received earlier reviews. See Opp. at 26-27. Plaintiff specifically appears to 7 challenge defendants’ provision of a hearing on August 3, 2017, twenty-four days after plaintiff’s 8 original administrative segregation expired on July 10, 2017, see FAC ¶¶ 10, 30; the provision of a 9 fourth hearing on October 26, 2017, four days after the expiration of the extension the CSR 10 auditor gave PBSP to explain its prolonged detention of plaintiff, see id. ¶¶ 35-37; and the 11 provision of a validation hearing with the UCC eighty-seven days after plaintiff’s gang validation 12 investigation concluded, rather than within thirty days as required by CDCR regulations; see id. ¶¶ 13 38-42. In all, these delays total eighty-five days. 14 As noted above, the Fourteenth Amendment right to due process does not require a state 15 prison to comply with its own procedures that might be more generous than those federally 16 required. See Walker, 14 F.3d at 1419–20. In other words, “‘if state procedures rise above the 17 floor set by the due process clause, a state could fail to follow its own procedures yet still provide 18 sufficient process to survive constitutional scrutiny.’” Id. at 1420 (quoting Rogers v. Okin, 738 19 F.2d 1, 8 (1st Cir. 1984)). This point is critical because it shows the futility of plaintiff’s 20 argument. Plaintiff argues about procedures that supposedly were required by the CDCR’s 21 Department Operations Manual and the California Code of Regulations. Although those rules and 22 regulations might help one understand how the disciplinary and classification procedures operated, 23 they are beside the point when it comes to figuring out what is required to satisfy the Fourteenth 24 Amendment right to due process. Instead, this Court must focus on case law applying the U.S. 25 Constitution to understand the procedural requirements necessary to satisfy the Fourteenth 26 Amendment right to due process. 27 1 Even if plaintiff is correct that he should have received earlier reviews under state prison 2 regulations, see Opp. at 19, he points only to those regulations rather than to what is federally 3 required. The Court has found no case law stating that a cumulative 85-day delay is so significant 4 that the reviews are no longer considered periodic. In fact, the Ninth Circuit has found that 5 providing reviews every 120 days is enough to fulfill due process. See Blocker v. Kernan, 29 F.3d 6 630 (9th Cir. 1994) (“Blocker receives a periodic review of his retention in administrative 7 segregation every 120 days. Accordingly, Blocker’s continued detention in administrative 8 segregation does not violate his right to due process.”). The delay suffered by plaintiff, though 9 unfortunate, does not rise to a violation of the Fourteenth Amendment. 10 b. Plaintiff Has Raised A Disputed Issue Of Material Fact As To 11 Whether He Received Meaningful Reviews. 12 Defendants argue that the reviews plaintiff received were also “meaningful.” See MSJ at 13 23-24. Defendants argue that these reviews were “meaningful” because the ICC at PBSP “had the 14 authority to recommend” plaintiff be transferred out of Ad-Seg, and because the ICC at CSP-Cor 15 actually transferred plaintiff out of Ad-Seg. See id. at 23. 16 Defendants’ reliance on the actions taken by the CSP-Cor ICC is misplaced. As noted 17 above, plaintiff separately challenges events at CSP-Cor in a different forum. See Opp. at 10. On 18 this basis, the Court declined to consider plaintiff’s request to expunge gang validations from the 19 File. See supra I.C.1. Defendants cannot simultaneously argue that the Court should disregard 20 hearings that occurred at CSP-Cor for purposes of expungement, while simultaneously relying on 21 those hearings to defeat plaintiff’s claim that his Fourteenth Amendment right to due process was 22 violated. 23 Defendants’ only argument that plaintiff’s reviews at PBSP were “meaningful” is that the 24 PBSP ICC “had the authority” to transfer plaintiff out of Ad Seg. To support this argument, 25 defendants rely on Brown v. Oregon Department of Corrections, in which the Ninth Circuit held 26 that a committee’s “reviews were essentially meaningless” because the committee in that case 27 lacked the authority to transfer the plaintiff out of isolation. 751 F.3d at 987–88. Defendants read 1 Brown to hold that a hearing before an empowered reviewing committee is automatically 2 meaningful, regardless of content. This is an incorrect reading of that case. Brown held that if a 3 committee has no authority, then the reviews cannot be meaningful. See id. The contrapositive of 4 this statement is that if a review was meaningful, then a committee had to have authority. In other 5 words, Brown set a floor, not a ceiling as defendants believe. Cf. Ashker v. Newsom, No. 09-CV- 6 05796-CW (RMI), 2019 WL 330461, at *12 (N.D. Cal. Jan. 25, 2019) (extending the applicability 7 of the Ashker Settlement, in part because although prisoners were given parole hearings under the 8 Ashker Settlement, this did not necessarily mean that prisoners were given “meaningful parole 9 hearings at which they may challenge a gang validation,” and finding unreliable the kinds of 10 evidence CDCR used to validate prisoners as gang members) (emphasis in original). 11 Plaintiff argues that the PBSP ICC’s reviews could not have been meaningful because they 12 did not comply with defendants’ obligations under the settlement reached in Ashker v. Brown 13 (“Ashker Settlement”). See Opp. at 2, 18, 19, 21-26 (citing Dkt. No. 424, Ex. A, Case No. No. 09- 14 5796-CW (N.D. Cal. Sept. 1, 2015)). In Ashker, a class of prison inmates argued that CDCR’s 15 practice of “assign[ing] inmates to the SHU based solely on their membership in or association 16 with prison gangs, without regard for the inmate’s ‘actual behavior’” violated the class’s 17 Fourteenth Amendment right to due process. Ashker v. Brown, No. C 09-5796 CW, 2013 WL 18 1435148, at *1 (N.D. Cal. Apr. 9, 2013). CDCR settled with the class of inmates. See Ashker 19 Settlement. The Ashker Settlement was signed by Jeffrey Beard, then-Secretary of CDCS, on 20 August 31, 2015. See id. at 22. It was approved by the United States District Judge Claudia 21 Wilken on October 6, 2015. See Dkt. No. 440, Case No. No. 09-5796-CW (N.D. Cal. Sept. 1, 22 2015). The Ashker Settlement thus bound CDCR well before the alleged constitutional violations 23 occurred here. 24 The Ashker Settlement provides that “CDCR shall not place inmates into a[n] . . . 25 Administrative Segregation. . . . Program solely on the basis of their validation status.” See 26 Ashker Settlement ¶ 13. Plaintiff argues, and defendants appear to agree, that regardless of why 27 plaintiff was initially placed in Ad-Seg, after August 3, 2017 plaintiff was retained in Ad-Seg 1 solely based on his gang validation. See generally, MSJ & Opp. Thus, it appears that defendants’ 2 retention of plaintiff in Ad-Seg solely on this basis violated the Ashker Settlement. Cf. Santos v. 3 Holland, 761 F. App’x 707, 712 (9th Cir. 2019) (Friedland, J., dissenting) (arguing that a plaintiff 4 should bring in civil rights, rather than habeas, his claim that “he was confined in the SHU 5 precisely because he had been validated as a member of the Mexican Mafia” and noting that “the 6 state of California reached the settlement in Ashker, agreeing that it would no longer place inmates 7 in solitary confinement solely on the basis of their gang validation status”). Defendants do not 8 explain how the PBSP ICC could have given plaintiff a meaningful review, while simultaneously 9 ignoring, or deciding to violate, the Ashker Settlement. Plaintiff’s argument, that defendants could 10 not both have given him a meaningful review and violated the Ashker Settlement, is well-taken. 11 Defendants counter that plaintiff has not shown the ICC’s reviews were meaningless 12 because Ashker “concerned gang members’ extended confinement in [PBSP’s] administrative 13 segregation unit” rather than “where an inmate should be housed when he requests SNY transfer 14 but has suspected gang ties.” Reply at 7. Although defendants are correct that the Ashker 15 Settlement addresses housing for validated gang members, this argument would have the Court 16 afford suspected gang members less due process than proven gang members. This is untenable. 17 Because plaintiff argues that the PBSP ICC’s reviews could not have been meaningful 18 because his confinement violated the Ashker Settlement, and defendants do not plausibly rebut 19 plaintiff’s argument, the Court concludes that plaintiff has raised a disputed issue of material fact 20 as to whether the ICC hearings at PBSP constituted meaningful review. Thus, plaintiff has raised 21 a disputed issue of material fact as to whether plaintiff received due process. 22 3. Defendants Are Not Entitled To Qualified Immunity As To Plaintiff’s 23 Fourteenth Amendment Due Process Claim. 24 Having found a disputed issue of material fact, the Court next considers whether 25 defendants are entitled to qualified immunity. 26 Government officials are entitled to qualified immunity from suit if the officials did not 27 “violate clearly established statutory or constitutional rights of which a reasonable person would 1 have known.” Pearson, 555 U.S. at 231. A right is clearly established if it was “sufficiently clear 2 that every reasonable official would have understood that what he is doing violates that right.” 3 Saucier, 533 U.S. at 201. Although case law need not be directly on point, “existing precedent 4 must have placed the statutory or constitutional question beyond debate.” Kisela, 138 S. Ct. at 5 1152. However, the Court must also consider whether the facts of the case at bar, when “taken in 6 the light most favorable to” the plaintiff, are “fairly distinguishable” from the established case law. 7 Orn v. City of Tacoma, 949 F.3d 1167, 1179 (9th Cir. 2020). 8 Defendants argue that the Court should find they are entitled to qualified immunity 9 because there is no clearly established law “discussing whether it is unconstitutional to retain an 10 inmate in administrative segregation while gang investigators determine whether he is a suitable 11 candidate for a Sensitive Needs Yard.” Reply at 8. Defendants’ argument misconstrues plaintiff’s 12 position. Plaintiff does not argue that defendants’ acts were unconstitutional because they violated 13 the Ashker Settlement. Instead, plaintiff argues that any review he was given could not have been 14 meaningful because, at the end of each review, defendants either ignored or decided to violate the 15 Ashker Settlement. In other words, the breach of the Ashker Settlement is not a constitutional 16 violation, but it is evidence that defendants may have violated plaintiff’s constitutional rights. 17 Because plaintiff has raised a disputed issue of material fact as to whether defendants gave 18 plaintiff meaningful reviews, defendants are not entitled to qualified immunity. See Lira v. Dir. of 19 Corr., No. C-00-0905 SI, 2008 WL 619017, at *12 (N.D. Cal. Mar. 4, 2008) (holding, where 20 plaintiff “set forth triable issues of fact” as to whether he was “provided with meaningful post- 21 validation hearings,” that defendants were not entitled to qualified immunity), aff’d sub nom. on 22 other grounds, Lira v. Herrera, 448 F. App’x 699 (9th Cir. 2011). 23 In arguing they are entitled to qualified immunity, defendants suggest that their only 24 options were to return plaintiff to general population, which was likely to result in harm to 25 plaintiff; move plaintiff to SNY, which may have put other prisoners at risk; or retain plaintiff in 26 Ad-Seg, which may have violated plaintiff’s Fourteenth Amendment right to due process. See 27 Reply at 7-8. Defendants argue that they are entitled to qualified immunity because, faced with 1 three distasteful options, they chose the most reasonable. See id. There are two problems with 2 this argument. First, that is not the test for qualified immunity. The qualified immunity test asks 3 whether defendants violated a well-established right. Second, even if defendants accurately stated 4 the test, the record in this case reveals that defendants had at least two additional options. Plaintiff 5 could have been placed into Restricted Custody General Population, as was recommended by 6 Officer Sturdevant. See MSJ at 16 (“Sturdevant recommended that Plaintiff be placed in 7 ‘Restricted Custody General Population,’ which Plaintiff admitted would not be ‘solitary 8 confinement.’”); see also Bell Decl. ¶ 12 (noting that PBSP’s ICC “could have . . . requested that” 9 plaintiff he considered “for specialized housing such as Restrict[ed] Custody General 10 Population”). Alternatively, plaintiff could have been transferred to the “non-SNY facility” at 11 CSP-Sac in which he now founds himself. See id. at 22 (stating that, even after having been re- 12 validated as a member of the Aryan Brotherhood, plaintiff was transferred to Facility A at CSP- 13 Sac). Thus, defendants had other options that did not violate a well-established right. 14 Because plaintiff has raised triable issues of material fact as to whether defendants violated 15 his due process, and because defendants are not entitled to qualified immunity, the Court DENIES 16 the MSJ as to plaintiff’s Fourteenth Amendment due process claim. 17 IV. CONCLUSION 18 Defendants’ MSJ is GRANTED in part and DENIED in part. Specifically, the MSJ is 19 granted as to plaintiff’s First and Eighth Amendment claims as to all defendants but denied as to 20 plaintiff’s Fourteenth Amendment claim. For the reasons discussed above, Representative Garcia 21 is dismissed from this litigation without prejudice. Accordingly, the only issue that remains for 22 trial is whether plaintiff was denied meaningful review of his PBSP Ad-Seg confinement by 23 Officers Sturdevant and Bradbury, Sergeants Anderson and Schrag, Counselor Bond, Captain 24 Wilcox, Chief Deputy Warden Bell, and Investigators Parry, Puente, and Schaad. 25 Prior to setting this case for trial and appointing pro bono counsel to represent plaintiff for 26 that purpose, the Court refers this case to U.S. Magistrate Judge Robert M. Illman pursuant to the 27 Pro Se Prisoner Settlement Program for settlement proceedings. The proceedings shall take place 1 within ninety (90) days of the filing date of this order. U.S. Magistrate Judge Illman shall 2 coordinate a time and date for a settlement conference with all interested parties or their 3 representatives and, within ten (10) days after the conclusion of the settlement proceedings, file 4 with the Court a report regarding the prisoner settlement proceedings. 5 The Clerk of the Court shall mail a copy of this order to U.S. Magistrate Judge Illman in 6 Eureka, California. The instant case is STAYED pending the settlement conference proceedings. 7 Until further order of the Court, the Clerk shall ADMINISTRATIVELY CLOSE the file, which 8 is a purely internal administrative procedure that does not affect the rights of the parties. 9 Plaintiff is reminded that it is his responsibility to prosecute this case. Plaintiff’s 10 responsibility continues throughout settlement conference proceedings. Accordingly, plaintiff 11 must continue to keep the Court informed of any change of address by filing a separate paper with 12 the Clerk headed “Notice of Change of Address.” He also must comply with the Court’s orders in 13 a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 14 pursuant to Federal Rule of Civil Procedure 41(b). 15 IT IS SO ORDERED. 16 17 DATED: May 15, 2020 18 LUCY H. KOH UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27