Perez v. McDonald et al

Filing 55

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 6/19/2012 RECOMMENDING that defendants' 44 motion to dismiss be denied; and defendants be directed to answer the 29 amended complaint within 10 days from the date of any district court order adopting these findings and recommendations. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

FERNANDO AVILA PEREZ, JR.,

11
12
13
14
15

Plaintiff,

No. 2:10-cv-1984 MCE JFM (HC)

vs.
MCDONALD, et al.,
Defendants.

FINDINGS AND RECOMMENDATIONS
/

16

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

17

42 U.S.C. § 1983. Plaintiff claims that his constitutional rights were violated in connection with

18

his validation as an associate of a prison gang. This matter is before the court on defendants’

19

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Defendants contend that plaintiff has

20

failed to state a claim for relief. Plaintiff opposes the motion.

21
22

STANDARDS FOR A MOTION TO DISMISS
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to

23

dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

24

In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as

25

true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197

26

(2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes,
1

1

416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint

2

must contain more than “a formulaic recitation of the elements of a cause of action;” it must

3

contain factual allegations sufficient “to raise a right to relief above the speculative level.” Bell

4

Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, “[s]pecific facts are not

5

necessary; the statement [of facts] need only ‘“give the defendant fair notice of what the . . .

6

claim is and the grounds upon which it rests.”’” Erickson, 551 U.S. 89, 127 S.Ct. at 2200

7

(quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).

8

ANALYSIS

9
10

Plaintiff’s amended complaint, filed April 21, 2011, contains the following
allegations:

11

On April 4, 2009, defendant St. Andrew, an institutional gang investigator, placed

12

plaintiff in administrative segregation pending investigation into plaintiff’s presumed association

13

with the Northern Structure prison gang. On August 27, 2009, defendant G. Bracket, disclosed

14

to plaintiff the information used in the gang validation process. The information disclosed three

15

“source points (tattoo, informant, debriefing)” being used to validate plaintiff as a gang associate.

16

Amended Complaint, filed April 21, 2011, at 4. The tattoo was twenty years old, the information

17

gather by the gang investigators from the informant was false and misleading, and there is no

18

other relevant evidence that plaintiff is associated with a prison gang.

19

On September 16, 2009, defendant Marquez contacted defendant Bracket and

20

directed him to review the “tattoo source.” Id. at 5. Defendants Bracket and Harrison reviewed

21

plaintiff’s central file and decided to use a probation report to support use of the tattoo to support

22

the gang validation. Gang investigators also added another confidential source. None of the

23

evidence relied on to support the gang validation is reliable, nor could plaintiff’s probation report

24

be considered without violating the ex post facto clause.

25
26

Plaintiff filed an inmate grievance contesting the gang validation. The grievance
was screened out as untimely by the High Desert Prison Appeals Coordinator.
2

1
2

ANALYSIS
In support of their motion to dismiss, defendants contend that the allegations of

3

the amended complaint show that plaintiff received all process due in connection with his

4

transfer to segregated housing. Defendants also contend that the allegations of the amended

5

complaint and the exhibits appended thereto show that there was “some evidence” to support the

6

gang validation decision.

7
8
9
10
11
12

In Munoz v. Rowland, 104 F.3d 1096 (9th Cir. 1997), the United States Court of
Appeals for the Ninth Circuit held that
California’s policy of assigning suspected gang affiliates to the
Security Housing Unit is not a disciplinary measure, but an
administrative strategy designed to preserve order in the prison and
protect the safety of all inmates. Although there are some minimal
legal limitations, see, e.g., Toussaint v. McCarthy, 801 F.2d 1080
(9th Cir.1986) ..., the assignment of inmates within the California
prisons is essentially a matter of administrative discretion.

13

Munoz at 1098. Due process requires only notice and an opportunity to be heard “within a

14

reasonable time” after placement in administrative segregation. Toussaint v. McCarthy, 801 F.2d

15

1080, 1100 (9th Cir. 1986), overruled in part on other grounds, Sandin v. O’Conner, 515 U.S.

16

472 (1995). In addition, a decision to validate an inmate as a member or associate of a prison

17

gang must be supported by “some evidence.” Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003)

18

(quoting Superintendent v. Hill, 472 U.S. 445, 455 (1985)). Under Hill’s “some evidence”

19

standard, the court does “not examine the entire record, independently assess witness credibility,

20

or reweigh the evidence; rather, ‘the relevant question is whether there is any evidence in the

21

record that could support the conclusion.’” Bruce, id. (quoting Hill, 472 U.S. at 455-56).

22

However, the evidence relied on must have some “indicia of reliability.” Bruce, at 1288 (citing

23

Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir. 1990)). Reliability may be established by

24
25
26

(1) the oath of the investigating officer appearing before the
committee as to the truth of his report that contains confidential
information, (2) corroborating testimony, (3) a statement on the
record by the chairman of the committee that he had firsthand
knowledge of sources of information and considered them reliable
3

1

based on the informant’s past record, or (4) an in camera review of
the documentation from which credibility was assessed.... Proof
that an informant previously supplied reliable information is
sufficient.

2
3

Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir.1987).
4
Here, plaintiff challenges the sufficiency of the evidence relied on to support his
5
validation as an associate of the Northern Structure prison gang. State regulations provide in
6
relevant part that
7
An associate is an inmate/parolee or any person who is involved
periodically or regularly with members or associates of a gang.
This identification requires at least three (3) independent source
items of documentation indicative of association with validated
gang members or associates. Validation of an inmate/parolee or
any person as an associate 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, or to an inmate/parolee or any
person who is validated by the department within six (6) months of
the established or estimated date of activity identified in the
evidence considered.

8
9
10
11
12
13

15 C.C.R. § 3378(c)(4). Documents attached to plaintiff’s amended complaint1 show that

14
plaintiff was validated as a gang member on the basis of six items, falling into three categories: a
15
CDCR 128B dated 8/25/09, a CDCR 128B dated September 16, 2009, and a Monterey County
16
Probation Officers Report dated 9/20/04, all related to plaintiff’s tattoo; a confidential
17
memorandum dated 6/17/09, supported by another confidential memorandum dated 2/22/08,
18
evidence of a direct link through debriefing; and a confidential memorandum dated 10/28/08,
19
evidence of a direct link through written material. Ex. G to Amended Complaint.
20
A confidential information disclosure form appended to the amended complaint
21
states that the February 22, 2008 memorandum was based on information by a “reliable
22
confidential informant” who identified plaintiff as a “Building Channel (BC) for the Northerns
23
(Northern Structure members/associates) while on Facility C upper yard building 7.” Ex. A to
24
25
1

26

Exhibits attached to a complaint are a part thereof for all purposes. See Fed. R. Civ. P.

10(c).
4

1

Amended Complaint, at 3. A second confidential information disclosure form states that the

2

June 17, 2009 memorandum was based on information providing “during the Debriefing of a

3

validated member of the NS” who identified plaintiff as “an associate of the NS and holding a

4

position in the Chain of Command . . . [of] Building Channel for buildings 5 and 7 on Facility C

5

HDSP.” Id. at 4. A third confidential information disclosure form appended to the amended

6

complaint states that the October 28, 2008 memorandum was based on information obtained

7

during a “contraband surveillance watch” of a suspected member of the Northern Structure,

8

during which a roster of inmates associating themselves with the Northern Structure was

9

discovered. Ex. D to Amended Complaint, at 3. Plaintiff’s name and identifying information

10

was on the roster. Id. Neither the confidential memoranda nor the roster are appended to the

11

amended complaint.

12

Plaintiff alleges that the information used to validate him as gang member was not

13

reliable. As noted above, the confidential information relied on to validate plaintiff as a member

14

of the prison gang must bear some “indicia of reliability.” None of the confidential information

15

disclosure forms are attested to under oath by the investigating officers, nor are there any “on the

16

record” statements by the decisionmaker concerning firsthand knowledge of the sources and their

17

reliability. Cf. Zimmerlee, supra. Moreover, while one confidential disclosure form describes

18

the information concerning plaintiff’s role as a “building channel” as coming from a

19

“confidential informant” and the memo attributes it to a “debriefing,” it is not possible to tell on

20

this record whether one individual or two provided that information. If only one person was the

21

source of the information, it is not corroborated. Cf. Zimmerlee, supra.

22

Under the circumstances, this court finds that an in camera review of the

23

confidential memoranda will be required to determine the reliability of key information used to

24

validate plaintiff as an associate of a prison gang. Such a review will require consideration of

25

matters outside the scope of the pleadings.

26

/////
5

1

For the foregoing reasons, this court finds that plaintiff has alleged that he was

2

validated as a gang associate based on unreliable information in violation of his right to due

3

process. It is not plain from the exhibits appended to the amended complaint that plaintiff is not

4

entitled to relief on that claim. Accordingly, defendants’ motion to dismiss should be denied.2

5

In accordance with the above, IT IS HEREBY RECOMMENDED that:

6

1. Defendants’ February 13, 2012 motion to dismiss be denied; and

7

2. Defendants be directed to answer the amended complaint within ten days from

8

the date of any order by the district court adopting these findings and recommendations.

9

These findings and recommendations are submitted to the United States District

10

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

11

days after being served with these findings and recommendations, any party may file written

12

objections with the court and serve a copy on all parties. Such a document should be captioned

13

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

14

objections shall be filed and served within fourteen days after service of the objections. The

15

parties are advised that failure to file objections within the specified time may waive the right to

16

appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

17

DATED: June 19, 2012.

18
19
20
21
22

12
pere1984.mtd

23
24
2

25
26

Plaintiff also claims that use of his probation report as evidence in the gang validation
proceedings violates the ex post facto clause. Defendants have not sought dismissal of this
claim.
6