Howard v. Lane, et al.

Filing 61

ORDER GRANTING 55 Motion for Summary Judgment, signed by Chief Judge Ralph R. Beistline on 4/8/15. Plaintiff's In Forma Pauperis Status is REVOKED. CASE CLOSED (Strike). (Marrujo, C)

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
TIMOTHY HOWARD,
Case No. 1:12-cv-01875-RRB
Plaintiff,
ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT
AT DOCKET 55

vs.
C. LANE, et al.,
Defendants.

I.

PENDING MOTION
At Docket 55 Defendants M. Harris and J. Martin filed a Motion for Summary

Judgment. Plaintiff Timothy Howard, a state prisoner appearing pro se, has opposed the
motion1 and Defendants have replied.2 This matter being ripe for decision, it is submitted for
decision on the moving and opposing papers without oral argument.3
II.

STANDARD OF REVIEW
Summary judgment is appropriate if, when viewing the evidence in the light most

favorable to the non-moving party, there are no genuine issues of material fact and the moving

1

Docket 57 (Memorandum), Docket 58 (Statement of Undisputed Facts).

2

Docket 59.

3

LR 230(l).

ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 1

party is entitled to judgment in its favor as a matter of law.4 Support and opposition to a motion
for summary judgment is made by affidavit made on personal knowledge of the affiant,
depositions, answers to interrogatories, setting forth such facts as may be admissible in
evidence.5 In response to a properly supported motion for summary judgment, the opposing
party must set forth specific facts showing that there is a genuine issue of material fact for
trial.6 The issue of material fact required to be present to entitle a party to proceed to trial is
not required to be resolved conclusively in favor of the party asserting its existence; all that is
required is that sufficient evidence supporting the claimed factual dispute be shown to require
a jury or judge to resolve the parties' differing versions of the truth at trial. In order to show that
a genuine issue of material fact exists a nonmoving plaintiff must introduce probative evidence
that establishes the elements of the complaint.7 Material facts are those that may affect the
outcome of the case.8 A dispute as to a material fact is genuine if there is sufficient evidence
for a reasonable jury to return a verdict for the non-moving party.9 "Credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury

4

Fed. R. Civ. P. 56(c); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en
banc); Taylor v. List, 880 F.2d 1040, 1044 (9th Cir. 1989).
5

Fed. R. Civ. P. 56(e).

6

Id.; Henderson v. City of Simi Valley, 305 F.3d 1052, 1055–56 (9th Cir. 2002).

7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).

8

Id.

9

Id.

ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 2

functions, not those of a judge, [when] he is ruling on a motion for summary judgment."10 The
evidence of the non-moving party is to be believed and all justifiable inferences are drawn in
his favor.11 The moving party has the burden of showing there is no genuine issue of material
fact; therefore, he or she bears the burden of both production and persuasion.12 The moving
party, however, has no burden to negate or disprove matters on which the non-moving party
will have the burden of proof at trial. The moving party need only point out to the Court that
there is an absence of evidence to support the non-moving party's case.13 There is no genuine
issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of
the party opposing the motion.14
In general, in ruling on a motion for summary judgment, a court may not weigh the
evidence or judge the credibility of witnesses.15 Instead, it generally accepts as true
statements made under oath.16 However, this rule does not apply to conclusory statements
unsupported by underlying facts,17 nor may the court draw unreasonable inferences from the

10

Id. at 255.

11

Id.

12

Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986).

13

Sluimer v. Verity, Inc., 606 F.3d 584, 586 (9th Cir. 2010); see Celotex, 477 U.S.

at 325.
14

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

15

Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005).

16

Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005).

17

Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 1990).

ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 3

evidence.18 “To survive summary judgment, a plaintiff must set forth non-speculative facts, not
sweeping conclusory statements.”19
III.

BACKGROUND/ISSUES PRESENTED
Howard’s complaint arises out of his validation as a member of the Black Guerilla

Family gang while held in Administrative Segregation (“Ad-Seg”) at the California Substance
Abuse Treatment Facility (“CSATF”). Howard is presently incarcerated at the Pelican Bay
State Prison.
In his Amended Complaint Howard raised several claims. In screening this Court
dismissed all claims except his First Amendment claim as against Defendants M. Harris, J.
Martin, and S. Furlong.20 In his First Amendment claim Howard alleges that Defendants Harris
and Martin stated they would file paperwork against him, ostensibly in retaliation for Howard
having filed inmate appeals. As against Defendants Harris and Furlong, Howard alleges that
they created false documentation to validate him as a member of the Black Guerilla Family
(“BGF”) gang. Defendants Harris and Martin answered.21 The Court dismissed the action as

18

See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001);
McLaughlin v. Liu, 849 F.2d 1205, 1207–1209 (9th Cir. 1988).
19

Calfasso, U.S. ex rel. v. Gen Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th
Cir. 2011).
20

Docket 8.

21

Docket 23.

ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 4

against Defendant S. Furlong on the basis that the Screening Order as against Furlong had
been improvidently entered in error.22
In their motion Defendants contend that there is no evidence to support Plaintiff’s
allegations that Defendants, or either of them: (1) Took any adverse action against Plaintiff;
(2) Plaintiff’s frivolous inmate grievance was not protected conduct; (3) There is no causal
connection between Defendant’s allegedly adverse action and any protected conduct; and (4)
Defendants had a legitimate penological interest in drafting the memoranda used in validating
Plaintiff’s gang validation. Defendants further contend that they are entitled to qualified
immunity.
In his opposition Plaintiff contends that: (1) Defendants took an adverse action against
him; (2) The grievance was not frivolous and his conduct was protected; (3) A causal
connection exists between Defendants’ adverse action and the protected conduct; and
(4) Defendants had no legitimate penological interest in drafting the memoranda used in
validating Plaintiff as a gang member. Plaintiff also argues that: (1) Defendants violated his
due process rights by interviewing him in connection with an assault on a staff member;
(2) Retaliated against him for submitting internal grievances against Defendants;
(3) Deliberately falsified documents used in validating him as a member of BGF gang; and
(4) Permitted the use of outdated documents to be used in the gang validation process.
For the most part the relevant facts in this case are undisputed.

22

Docket 34.

ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 5

1.

On August 21, 2009, while incarcerated at Corcoran State Prison (“CSP”),

Howard attempted to murder a correctional officer.23 Subsequently, Howard was transferred
to CSATF where the incidents giving rising to this action occurred.
2.

On or about February 2, 2010, an assault on a correctional officer occurred at

Corcoran.
3.

On or about February 2 and February 3, 2010, Howard was interviewed

concerning the February 2 assault by two, or more, correctional officers, not the Defendants.
4.

On or about March 10, 2010, Howard was interviewed by Defendants Harris

and Martin concerning the February 2, 2010, assault.24
5.

Prior to the interview, Howard, in the presence of Defendants, added their

names to a grievance he intended to file, and handed a copy to one of the Defendants. One
of the Defendants tore up the appeal and disposed of it in a trash receptacle. Howard,
however had another copy. Moreover, in his deposition, Howard testified that he did not
submit that grievance; instead he submitted a new grievance on March 17, 2010.25
6.

Prior to interviewing Howard, Harris searched property located in the Ad-Seg

property room that was provided to him by the property room officer as belonging to Howard.

23

The record reflects that Howard was not only convicted of that crime, but in his
deposition, admitted it. Howard Deposition, September 10, 2014, pp. 14–15, 22.
24

Although there may be a dispute as to the exact date Howard was interviewed, the
fact that he was interviewed is undisputed. For the purposes of ruling on the pending motion,
the Court accepts the date asserted by Howard, the non-moving party.
25

Howard Deposition, pp. 41–42.

ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 6

Among the items found in that property were several articles written by George Jackson and
hand-drawn gang symbols.26
7.

In his CDC 126-B dated March 23, 2010, Martin stated:

On Friday, March 19, 2010, while assigned to the Investigative Services. Unit
(ISU) at the California Substance Abuse Treatment Facility and State Prison
(CSATF/SP) at Corcoran; I assisted in an interview with Inmate Howard,
Timothy, J95136 Aka "Hover Deuce", in reference to his current gang status.
During the interview, Howard admitted the reason he utilized the date of
August 21 to assault the cop next door (referring to the California State Prison
Corcoran) was because it was the anniversary of the incident involving George
Jackson on August 21, 1971.
Howard further explained that George Jackson murdered (1) one, correctional
staff member at the Correctional Training Facility (CTF), but that he murdered
(3) three, correctional employees during his escape attempt at San Quentin
State Prison.
George Jackson is held in one of the highest esteemed positions by the Black
Guerrilla Family (BGF). George Jackson, though never validated as a member
of the BGF, is attributed as being the founder of the BGF, during his
incarceration at San Quentin tn the 1960's. On Friday, August 21, 2009,
Howard committed the act of "Battery on a Peace Officer/Attempted Homicide
with a Weapon" (Refer to incident log#COR-04A-09-08-0435a1). By
conducting the assault, Howard is showing his good standing allegiance and
loyalty to the BGF.
Per California Code of Regulations (CCR), Title 151 section 3378 (c)(8)(l), this
document should be considered as one source (self admission) towards the
validation of Inmate Howard as an active member/associate of the BGF.
Inmate Howard's behavior should be closely monitored and documented
whenever gang activity and/or association is present. If and when additional

26

Declaration of M. Harris in Support of Motion for Summary Judgment, Docket 55-4.
The Court notes that although Howard “disputes” this statement, his disagreement is that the
property was that of another inmate, not his. Notably, Howard does not state any facts, let
alone offer any evidence, that refutes the veracity of the statement itself.
ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 7

information becomes available Inmate Howard's gang status should be reevaluated.27
8.

In his CDC 128-B dated March 23, 2010, Harris stated:

On Friday, March 19, 2010, while assigned to the Investigative Services Unit
(ISU) at the California Substance Abuse Treatment Facility and State Prison
(CSATF/SP) at Corcoran; I conducted a property search of the legal/personal
paperwork of Inmate HOWARD, Timothy J95136 Aka "Hoover Deuce", in
reference to his current gang status. During the search I discovered a handdrawn picture of a dragon. The aforementioned picture is indicative of
membership/association to the prison gang known as the Black Guerilla Family
(BGF).
Within the BGF prison gang, the dragon symbol gained significance through the
BGF'S founder, George Jackson, referencing the "dragon" within his writing's
and citing the dragon during his breakout attempt from San Quentin State
Prison on August 21, 1971. The BGF use the dragon to signify membership
gained additional importance through Jeffrey Gaulden, 809053, Aka “Joka”
(Swahili for dragon), previous Supreme Commander of the BGF, who
established the ranking structure and constitution for the BGF. The image of a
dragon is synonymous with the BGF and is a recognized source item within
CDCR for membership/association with the BGF prison gang.
By maintaining this symbol, HOWARD is showing his allegiance and
membership with the BGF.
[Image of Dragon omitted.]
Per California Code of Regulations (CCR), Title 15, section 3378 (c)(8)(B), this
document should be considered as one source (symbols) towards the

27

Docket 58, p. 94 (Exhibit BB). The Court also notes that there is a Confidential
Memorandum dated April 6, 2010, authored by Harris, in which he essentially restates the
information contained in the CDC 128-B. See Docket 58, p. 100 (Exhibit EE).
Although Howard disputes that he stated the reason he assaulted the cop on
August 21, his three-paragraph response does not really address whether he did or did not
make the statement attributed to him. Indeed, at least in part, the extract from his deposition
to which he refers tends to support at least the inference in that statement, i.e., that the date
of August 21 had some connection with anniversary of the incident involving George Jackson.
See Howard Deposition, pp. 20–22.
ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 8

validation of Inmate HOWARD as an active associate/member of the prison
gang known as the Black Guerrilla Family. Inmate HOWARD'S behavior should
be closely monitored and documented whenever gang activity and/or
association is present. If and when. additional information becomes available
Inmate HOWARD'S gang status should be re-evaluated.28
9.

The property searched by Harris was that of another inmate, Gerald Howard,

Prisoner No. G-21794.
10.

Howard was validated as a member of the BGF on May 25, 2011, partially on

the basis of the CDC 128-B’s submitted by Defendants Martin and Harris.29
11.

Howard was denied relief at the Director’s Level in a written decision, which

exhausted his administrative remedies.30 In denying relief the Director held:
I APPELLANT'S ARGUMENT: It is the appellant's position that the Institution
Gang Investigator (IGI) at the California Substance Abuse Treatment Facility
(SATF) retaliated against him by validating him as a member of the Black
Guerrilla Family prison gang (BGF) for filing a grievance. The appellant
contends that on or about June 27, 2011, the IGI Officer at the California
Correctional Institution (CCI) provided him with a copy of the CDC Form 128B2, Gang Validation/Rejection Review Chrono notice dated June 23, 2011,
approving the appellant's validation as a BGF member. The appellant asserts
that the validation is based on false information. Specifically, the appellant
claims that the symbols used as a source point towards his validation received
from his property could not have existed due to him never receiving his property
from the Corcoran State Prison and IOI/Investigative Services Unit (ISU) staff

28

Docket 58, p. 98 (Exhibit DD).

29

Docket 58, p. 115 (Exhibit JJ).

30

Cal. Code Regs. tit. 15, § 3084.1(b) (“Unless otherwise stated in these regulations,
all appeals are subject to a third level of review, as described in section 3084.7, before
administrative remedies are deemed exhausted. All lower level reviews are subject to
modification at the third level of review.”). Section 3084.7 provides for three levels of review,
the third level conducted by the Secretary of the California Department of Corrections and
Rehabilitation, or by a designated representative.
ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 9

entries note in the Administrative Segregation Unit (ASU) isolation logs as he
was out to court on the days his property was searched. The appellant requests
on appeal for the validation as a BGF member be "surrendered," the ASU
isolation logbook be reviewed for the purpose of identifying which ISU/IGI staff
were in the building on March 18 and March 19, 2010, as well as an
investigation into the matter.
II SECOND LEVEL'S DECISION: The reviewer found that a thorough review
and consideration of the appellant's appeal and respective issues have been
completed. The reviewer noted the investigation revealed that on June 23,
2011, the appellant was validated as a member of the BGF. The appellant was
advised that California Code of Regulations, Title 15; Section (CCR)
3378(c)(3) states in part, "A member is an inmate/parolee or any person who
has been accepted into membership by a gang. This identification requires at
least three (3) independent source items of documentation indicative of actual
membership. Validation of an inmate/parolee or any person as a member of
a prison gang shall require at least one (1) source item be a direct link to a
current or former validated member or associate of the gang." CR 3378(c)(6)
states in part, "The verification of an inmate/parolee's gang identification shall
be validated or rejected by the chief, office of correctional safety (Office of
Correctional Safety (OCS)), or a designee." The reviewer noted. that four out
of four items submitted by IGI Dean met the validation requirements. The
reviewer also noted that the confidential memorandum that met the validation
requirements was deemed reliable in accordance with CCR 3321. All source
items that were referenced in the validation review were disclosed to the
appellant at the time he was notified of his interview by the IGI. The reviewer
noted that the appellant's interview was documented along with his opinion on
each of the source items and submitted to the OCS with the appellant’s
validation package. The reviewer determined that the appellant failed to
provide any evidence to support his claims. Nonetheless, the Second Level of
Review (SLR) partially granted the appellant in that the appellant's appeal
issued was investigated.
III THIRD LEVEL DECISION: Appeal is denied.
A. FINDINGS: The institution has adhered to the provisions of CCR 3378
and CDCR Operations Manual, Section (DOM) 52070 in referring the
appellant to the OCS relative to his gang activity. The Director's Level
of Review reviewed the validation documentation and notes that a
committee comprised of OCS special agents determined that sufficient
information exists to corroborate gang activity. The appellant's
association with the prison gang has been appropriately reviewed by the
ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 10

OCS and and [sic] documented on a CDC Form 128-B2, Gang
Validation/Rejection Review Chrono. While the appellant is challenging
this information as false, he has not presented specific information on
his behalf to contradict the validation. The appellant merely presents
unsupported statements that the SATF IGI used sources that have no
factual evidence relative to validating him as a gang member. The TLR
finds the appellant's arguments lack merit and has been thoroughly
refuted by the evidence presented. Pursuant to CDCR regulations, the
debriefing process or verification of inactive status are two methods by
which the appellant could be released from the Security Housing Unit.
The examiner finds that the reviewer has demonstrated that the IGl staff
completed an investigation into the appellant's prison gang activity and
submitted four separate documents to the OCS for evaluation and
disposition. The OCS staff validated the appellant as an associate of
the BGF based upon the four source documents, which were deemed
reliable. As for the appellant's claim that the validation documents are
not legitimate, these documents along with the appellant's rebuttal were
reviewed by the OCS. Despite the appellant's dissatisfaction with the
SLR decision, further review at the TLR is not warranted.
The appellant has added new issues and requests to his appeal. The
additional requested action is not addressed herein as it is not
appropriate to expand the appeal beyond the initial problem and the
initially requested action (CDC Form 602, Inmate/Parolee Appeal Form,
Sections A and B).
B. BASIS FOR THE DECISION:
CCR: 3001, 3004, 3023, 3084.1, 3084.5, 3270, 332l, 3378 DOM:
52070.1, 52070.2, 52070.3, 52070.6.1, 52070.6.4, 52070.16.1,
52070.17.2, 52070.18.l, 52070.18.2, 52070.19, 52070.19.2, 52070.20,
52070.20.2
C. ORDER: No changes or modifications are required by the Institution.
This decision exhausts the administrative remedy available to the
appellant within CDCR.31

31

Docket 58, pp. 144-45 (Exhibit KK).

ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 11

IV.

DISCUSSION
The “adverse action” taken in this case was Howard’s validation as member of the

BGF gang. Although based in part on the CDC 128-B’s prepared by Harris and Martin, the
materials used in the validation were submitted by a third person, reviewed by two other
Institutional Gang Investigators,32 and, as noted above, the validation as a gang member itself
was done by yet two others.33 This validation was upheld on administrative appeal. While it
may be true that the information provided by Harris and Martin was part of the chain of
evidence upon which Howard was validated,34 neither Martin nor Harris took any “adverse
action” with respect to Howard.
Second, the fact that the gang materials seized by Harris belonged to another inmate,
was raised by Howard, and presumably considered by the prison authorities in connection
with the administrative appeal process.35 Nor is there any evidence that, at the time he
searched the items provided by the property clerk as allegedly belonging to Howard, Harris
knew, or had any reason to believe, that the materials did not belong to Howard.36

32

Docket 58, p. 127 (Exhibit KK).

33

Docket 58, p. 115 (Exhibit JJ).

34

The Court notes that nowhere in his First Amended Complaint does Howard contend
that Martin submitted any false documentation.
35

See Docket 58, pp. 118, 130–32 (Exhibit KK)

36

It appears from the record that, prior to the date that Harris obtained the property and
searched it, Howard had filed several complaints with prison authorities seeking to have his
property transferred from CSP to CSATF. Even if the Court were to assume that Harris had
knowledge of Howard’s attempts to obtain his property, the un-refuted fact is that Harris was
(continued...)
ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 12

With respect to Howard’s retaliation claim, analysis starts with the preposition that a
“chilling effect on a prisoner’s First Amendment right to file prison grievances is sufficient to
raise a raise a retaliation claim.”37 “A prisoner suing prison officials under section 1983 for
retaliation must allege that he was retaliated against for exercising his constitutional rights and
that the retaliatory action does not advance legitimate penological goals, such as preserving
institutional order and discipline.”38 Actions taken in retaliation of the exercise of a
constitutional right do not further a legitimate penological goal.39 Nor, are Defendants entitled
to qualified immunity with respect to the retaliation claim.40
Accepting as true the statements Howard alleges were made by Harris and Martin at
the time of the March interview with respect to taking some adverse action against Howard,41

36

(...continued)
provided the property by the CSATF property officer as property belonging to Howard. Harris
was entitled to rely upon this information. Nothing in the law or the prison regulations require
a investigating correctional officer to accept the protestations of a prisoner that contradict the
information provided by another prison officer.
37

Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003).

38

Id. (quoting Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (internal quotation
marks omitted).
39

Id. at 1289.

40

Id. at 1290.

41

Docket 58, Plaintiff’s Statement of Undisputed Facts No. 19, pp. 5–6. In his
September 10, 2014 deposition Howard testified that, with respect to the March 10 CDC 602,
Harris stated: “I ain’t interested in this.” [Deposition, p. 33] “See, this is what I can do to you.”
“At a stroke of the pen . . . I can keep you the whole rest of your life.” “I’ll validate you.”
[Deposition pp. 36–37] “What I am going to do is teach you a lesson about filing paperwork
on us.” [Deposition, p. 52] With respect to Martin, Howard testified that “[Martin] just
(continued...)
ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 13

the Court agrees with Defendants that their subsequent actions do not give rise to an
actionable retaliation claim.
First, while Bruce lends some support to Howard’s position, the facts in this case
materially differ. Unlike the situation in Bruce: (1) the investigation into Howard’s gang activity
was initiated and the evidence provided by Harris and Martin was obtained prior to the time
Howard filed his complaint against them; (2) there is no evidence that any of the complaints
Howard made against other correctional officials had been decided in Howard’s favor;
(3) there was no prior validation proceeding in which it was determined that the evidence was
insufficient to validate Howard as a BGF member; (4) contrary to Howard’s bald allegation,
it does not appear from the record that the validation was supported in part by stale evidence;
and (5) the statements attributed to Harris and Martin are far less damning that the statement
in Bruce.42

41

(...continued)
confirmed what Harris said, is that it sounded like a plan, that they were going to file
paperwork on me.” [Deposition, p. 66]
42

The Ninth Circuit in Bruce summarized the evidence as follows:
I asked Washington if he had contacted the IGI’s at North Kern and Pelican Bay.
He responded, “No. And I don’t have to.” Washington then stated that I had
“pissed off higher-ups” with my “complaints and protests,” and the last incident
“where you acted as spokesperson for other prisoners’ complaints was the last
straw.” Washington then stated that Lt. Coziahr and himself were ordered by
these “higher-ups to validate you.” . . . Washington stated also to me, “The
higher-ups want you validated to make an example out of you to discourage
similar complaints and protests . . . the bosses don't care for organized
complaining . . .. Your family filing a complaint to the Warden wasn't a good
idea either.” This is “exactly the sort of thing that pisses off the higher-ups.”
(continued...)
ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 14

Second, while it may be true that the reports filed by Harris and Martin were inaccurate,
there is no evidence that, other than Howard’s denial that it was his, they knew the materials
allegedly found in Howard’s possession did not belong to him. Howard’s claim is based
solely upon supposition and speculation, which is insufficient as a matter of law to create a
question of fact to be decided by a jury.43
This Court has considered the other arguments advanced by Howard and finds them
to be unpersuasive, irrelevant, or without substantial merit. These are discussed briefly.
With respect to his due process claim, as noted above, prisoners have no liberty
interest in their classification status as a gang member.44 Prison officials need only provide
an inmate with notice of the charges against him and an opportunity to present his views.45
Furthermore, a prison gang affiliation need only be supported by “some evidence.”46 The fatal
omission in Howard’s position is that he neither alleges nor argues that, even if the evidence

42

(...continued)
Washington then stated “the Warden called me this morning asking about your
validation.” . . . I asked Washington what evidence was being used against me,
he refused to say except to state, “it was already in your c-file when it was sent
to our office.” Bruce, 351 F.3d at 1289.
43

See Neely v. St. Paul Fire and Marine Ins. Co., 584 F.2d 341, 345–46 (9th Cir.

1978).
44

Carrea v. Beard, 588 Fed. Appx. 697, 697 (9th Cir. 2014) (unpublished) (citing
Moody v. Daggert, 429 U.S. 78, 88 n.9 (1976)).
45

See Wilkinson v. Austin, 545 U.S. 209, 228–29 (2005) (notice and opportunity to
be heard are adequate safeguards for placement in maximum custody).
46

See Bruce, 351 F.3d at 1287 (applying the standard enunciated in Superintendent
v. Hill, 472 U.S. 445, 455 (1985)).
ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 15

provided by Harris was false and is disregarded, the remaining evidence was insufficient to
support the gang-affiliation finding. Consequently, Howard has failed to carry his burden of
proof.
Finally, at the time Howard was authenticated as a BGF gang member he was held in
Ad-Seg.47 Consequently, Howard’s validation as a gang member had no effect on the
conditions of his confinement. That is, Howard was confined in Ad-Seg for reasons
independent of his gang membership, i.e., his attempted murder of a correctional officer.
Thus, even if this Court were to find in favor of Howard with respect to the challenged
evidence, it would have no practical effect upon the conditions of his confinement. The acts
of Harris and Martin did not result in, nor could they have resulted in, any change to
the conditions of Howard’s confinement. Put another way, because there is no causal
connection between the actions of either Harris or Martin and his confinement in Ad-Seg,
Howard has not suffered any compensable injury as result of that confinement.
Nor, because it is not within the purview of federal courts to interfere directly with prison
administration in the manner requested by Howard, may this Court grant Howard either
declaratory or injunctive relief.48

47

Howard’s own testimony indicates that he had been housed in the SHU at Corcoran
State Prison from some time in 2008 until his transfer to CSATF. Howard Deposition, p. 12.
48

Id. at 1290. Furthermore, because Howard is now housed at Pelican Bay, this Court
cannot grant any effective equitable relief in any event.
ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 16

V.

ORDER
Based upon the foregoing, Defendants’ Motion for Summary Judgment at Docket 55

is GRANTED.
The First Amended Complaint on file herein is hereby DISMISSED, with prejudice.
Judgment thereon to be entered in favor of Defendants and against Plaintiff.
This Court, having fully considered the matter finds that reasonable jurists could not
disagree with this Court’s resolution of his constitutional claims, or that jurists could conclude
the issues presented are adequate to deserve encouragement to proceed further.
Accordingly, any appeal would be frivolous or taken in bad faith.49 Accordingly, Plaintiff's in
forma pauperis status is hereby REVOKED.
The Clerk of the Court is directed to enter final judgment accordingly, which states that
the dismissal counts as a “strike” under 42 U.S.C. § 1915(g).
IT IS SO ORDERED this 8th day of April, 2015.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

49

28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091, 1092
(9th Cir. 2002) (revocation of in forma pauperis status is appropriate if the appeal is
frivolous).
ORDER GRANTING MOTION AT DOCKET 55
Howard v. Lane, 1:12-cv-01875-RRB - 17