Ashker et al v. Schwarzenegger et al

Filing 336

ORDER by Judge Claudia Wilken granting in part 204 DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS CROSS MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION (scc, COURT STAFF) (Filed on 3/25/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is a civil rights action under 42 U.S.C. § 1983 seeking damages and injunctive relief filed by pro se Plaintiffs Todd Ashker and Danny Troxell who are housed in the Secured Housing Unit (SHU) at Pelican Bay State Prison (PBSP). Defendants1 move for (1) violation of v. ARNOLD SCHWARZENEGGER, et al., Defendants. / TODD ASHKER and DANNY TROXELL, Plaintiffs, No. C 05-03286 CW ORDER GRANTING, IN PART, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' CROSS MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

summary judgment on Plaintiffs' remaining claims:

Plaintiffs' First Amendment right of freedom of speech arising from delayed delivery of their personal mail; (2) violation of Plaintiffs' First Amendment right of freedom of speech arising from Defendants' prohibition of magazines that contain frontal nudity or that promote tattooing; (3) violation of Plaintiffs' due process Under Federal Rule of Civil Procedure 15(d)(1), Francisco Jacquez, in his official capacity as current warden of PBSP, is substituted in place of Joe McGrath, the former warden of PBSP.
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rights arising from Defendants' Aryan Brotherhood (AB) prison gang validation procedures; (4) violation of Plaintiffs' due process rights arising from a lack of programs available to them because they are housed in the SHU; (5) Mr. Ashker's claim for injunctive relief based on due process violations in his parole suitability determination; and (6) state claims for negligence and an intentional tort. Defendants argue that the federal claims do not

rise to the level of constitutional violations and, in the alternative, that they are protected by qualified immunity. Plaintiffs have filed an opposition, have cross-moved for summary judgment and request a preliminary injunction in the event summary judgment is not granted to them on all claims. taken under submission on the papers. The matters were

Having read the papers filed

by all the parties, the Court GRANTS, in part, Defendants' motion for summary judgment, DENIES Plaintiffs' cross-motion for summary judgment and DENIES Plaintiffs' motion for a preliminary injunction. BACKGROUND I. Delayed Mail On August 6, 2003, Mr. Ashker filed 602 appeal 03-0226 alleging that his "incoming mail has been taking longer and longer to be processed by the mail-room." Notice (Jud. Not.) Ex. 7. Defs' Request for Judicial

Mr. Ashker alleged that he received two

letters eighteen and nineteen days after they were postmarked, respectively. Id. He also alleged that some of his outgoing mail Id. This appeal was denied at

has been delayed or not sent out. the three levels of review. Id.

The first level denial, which

indicated that it was a controlling response for multiple appeals 2

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of the same issue, stated that outgoing mail was being processed as the mailbags arrived, but that the mailroom was backlogged eleven days. Id.; Pl's Ex., MM.2 In his declaration, Mr. Ashker states that he has been housed at PBSP since 1990 and, during this entire time, the processing of ingoing and outgoing mail has been delayed. Ashker Dec. at 17-19.

He states that he rarely receives any personal mail, although he writes to his wife, who lives in England, two or three times each week. Id. ¶ 23. On January 23, 2005, Mr. Troxell filed 602 appeal number 050268 alleging that his outgoing mail was delayed for fifteen to twenty-one days. Jud. Not., Ex. 8. Mr. Troxell submitted with his

appeal an envelope addressed to the Parole Office in Fresno, California that contained a letter dated December 14, 2004. Id.

Mr. Troxell pointed out that the post mark on the envelope was January 6, 2005 which indicated that the letter was not mailed from PBSP until January 5, 2008. Id. He stated that, on December 5,

2004, he sent a Christmas card to his friend, who received it on December 26 or 27, a twenty-one or twenty-two day delay. Id.

The first level denial, which indicated it was a controlling response for multiple appeals, stated that mail was delayed due to the high volume of mail over the holidays and staff shortages due to illness. The director's level decision explained that "incoming

and outgoing mail normally starts to be processed in the mailroom Mr. Ashker submitted another appeal, number 05-1170, for mail delays. Kirkland Admissions, Ex. NN. This appeal was denied at the third level of review on January 12, 2006, after the complaint in this case was filed on August 11, 2005. Therefore, appeal number 05-1170 was unexhausted at the time the complaint was filed and is not reviewable in this proceeding. 3
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within twenty-four hours of receipt but that occasionally, when the volume of mail is high, particularly during the holidays and lockdowns, processing is delayed." Id.

In his declaration, Mr. Troxell states that he has been housed at PBSP-SHU since December 27, 1989, and during that time the processing of incoming and outgoing mail has been a problem. Troxell Dec. ¶ 3. He states that he rarely gets personal mail from Id. ¶ 9. He states that the mail delays cause Id. ¶ 10.

family and friends.

a hostile environment between inmates and staff.

Plaintiffs submit copies of seventeen envelopes addressed to them, each of which has a postmark date from the United States post office, a hand-stamped date and a handwritten date. Kirkland's Response to Interrogatories, Ex. LL­-00. See Defendant Plaintiffs

declare that they wrote the handwritten dates on the envelopes the day they received each piece of mail. The hand-stamped dates are

placed on the envelopes by the PBSP mailroom staff after each piece of mail is processed by the mailroom staff. PBSP Mailroom Supervisor at ¶ 8.3 Dec. of Raoul Silva,

There is a seventeen to thirty-

seven day time lag between the postmark date and the dates the envelopes were received by Plaintiffs. II. Denial of Magazines A. Nudity On April 27, 2004, Mr. Troxell filed 602 appeal 04-01126 claiming that the prohibition of magazines with frontal nudity was Defendants argue that the hand stamped dates were placed on the envelopes when they were first received at PBSP, before they were processed by the mailroom staff. However, this argument contradicts the declaration of their witness, PBSP Mailroom Supervisor Silva, who states that the envelopes are stamped after they are processed. 4
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a First Amendment violation and that the magazine "Juxtapoz" should not be prohibited because it contains art related material. Not., Ex. 9. Jud.

The denial at the Warden's level indicated that a

correctional counselor had reviewed Juxtapoz and noted several pages that portrayed the female breast and nipples and one page portrayed the male penis. The appeal was denied on the ground that

it violated title 15 of the California Code of Regulations (CCR)4, § 3006(17)(A) and materials containing frontal nudity create a hostile work environment for PBSP staff. In their declarations, Plaintiffs state that Defendants are banning all magazines and books that contain even a single picture of frontal nudity. Ashker Dec. ¶ 28, 30; Troxell Dec. ¶ 14. They

state that they have never seen inmates harassing staff with nude photographs nor have they seen inmates fighting over such material. Ashker Dec. ¶ 39; Troxell Dec. ¶ 17. They state that the ban has Id. ¶ 22; Ashker Dec.

made the inmates more hostile toward staff. ¶ 44.

They state that biker magazines have been banned because of

the frontal nudity depicted in them and that they feel disconnected from the biker lifestyle without these magazines. Troxell Dec. ¶ 22. B. Tattoos On December 28, 2003, Mr. Troxell filed 602 appeal 04-00026 and on February 29, 2004 Mr. Ashker filed 602 appeal 04-00527 claiming that the prohibition of the tattoo magazines titled "Tattoo Savage," "Tattoo Flash," and "Tattoo," violated the First Id. at 46, 49;

Unless otherwise noted, all further references to code sections are to title 15 of the California Code of Regulations (CCR). 5

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Amendment and that certain publications are art magazines that should be excepted from the prohibition. Jud. Not., Exs. 5, 6.

The appeals were denied on the grounds that the magazines contained pictures of tattoos which could be utilized as templates to replicate tattoo patterns, and articles on how to tattoo and how to make paraphernalia. Id. In their declarations, Plaintiffs state

that between 1989 and 2003, they subscribed to tattoo art magazines such as "Tattoo," "Flash," and "Tabu Tattoo," but these were subsequently banned. Plaintiffs state the magazines keep them up-

to-date on the tattoo art scene which is a lucrative business about which they want to stay informed, and that the art reference material and artists' profiles are inspirational for their own artistic endeavors. III. Gang Validation On May 23, 1988, Mr. Ashker was first validated as a member of the AB Prison Gang and he was re-validated on July 13, 1995. Dec., Ex. A. In July, 2001, Mr. Ashker requested that he be Id. The Institutional Gang Kenny Ashker Dec. at ¶ 61, Troxell Dec. ¶ 34.

classified as "inactive."5

Investigator (IGI) examined Mr. Ashker's Central File6 and found four documents providing evidence that he was a member of the AB gang and could not be reclassified as inactive. Id. On September

3, 2001, Mr. Ashker filed 602 appeal 01-2335 in which he alleged that the inactive review was a sham and that the four documents were false.
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Jud. Not., Ex. 10.

On February 21, 2002, the appeal

An inmate who has been validated or re-validated as an active gang member may apply for an official change in status to inactive. CCR §§ 3378(c) and (d). The record of an inmate's activities in prison are maintained in his Central File. 6
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was denied at the third level of review on the ground that staff of IGI familiar with the activities of gangs thoroughly reviewed the four confidential memos in Mr. Ashker's file and determined that they constituted sufficient and reliable documentation to support the finding that Mr. Ashker was an active member of the AB prison gang. Id. Mr. Ashker was informed of the IGI's investigation, but Kenny Dec. Ex.

refused to participate in interviews with the IGI. A.

The IGI sent these findings to the Law Enforcement and

Investigations Unit (LEIU) which, citing sixteen independent documents, re-validated Mr. Ashker as a member of the AB on February 19, 2002 and on July 8, 2003. On August 4, 2004, the

Institutional Classification Committee (ICI) retained Mr. Ashker in the SHU based on his revalidations. Jud. Not., Ex. 10. On

September 15, 2004, Mr. Ashker filed 602 appeal 04-2600 challenging the 2002 and 2003 revalidations and the 2004 decision to retain him in the SHU. Not. Ex. 10. On December 17, 2004, the appeal was denied. Jud.

In his declaration, Mr. Ashker avers that he is not,

nor has he ever been, a participant in illegal gang activity. Ashker Dec. ¶ 89. Mr. Troxell was initially validated as a member of the AB in 1984. Comp. ¶ 104. On January 4, 1988, while he was housed in the

SHU at Tehachapi State Prison, Mr. Troxell filed 602 appeal 88-1657 alleging that the policy of placing him in the SHU without finding him guilty of disciplinable behavior violated his due process rights. The appeal was denied at the third level of review on Jud. Not., Ex. 11; Woodford Responses, Ex. V. Mr.

April 11, 1988.

Troxell was re-validated on August 1, 1995 and on July 8, 2003. Kenny Dec, Ex. B. Before the filing of this complaint, he 7

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exhausted no other appeals relating to his gang re-validations. VI. Lack of Access to Programs On February 23, 2004, Mr. Ashker filed 602 appeal 04-00566 alleging that PBSP denied him access to programs required for parole. Jud. Not., Ex. 13. On July 22, 2004, this appeal was

denied at the third level of review on the ground that programs for inmates housed in the SHU must be limited based upon safety and security concerns. V. Denial of Parole The parole hearing at issue is Mr. Ashker's August 7, 2003 hearing before the Board of Prison Terms7 (Board). The Board Id.

concluded that Mr. Ashker was not suitable for parole and would pose a threat to public safety if released based on the following: (1) his lengthy criminal history; (2) the commitment offense of second degree murder; (3) his negative behavior since incarceration; (4) membership in the AB prison gang; (5) failure to participate in self-help and vocational programs; (6) failure to participate in scheduled psychiatric evaluations; (7) lack of either parole plans or a work record; and (8) the opposition of the Sacramento District Attorney's Office and Mr. Ashker's PBSP counselor to a finding of parole suitability. LEGAL STANDARD I. Summary Judgment Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the

The Board of Prison Terms was abolished effective July 1, 2005, and replaced with the Board of Parole Hearings. Cal. Penal Code § 5075(a). 8

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evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P.

56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true

the opposing party's evidence, if supported by affidavits or other evidentiary material. F.2d at 1289. Celotex, 477 U.S. at 324; Eisenberg, 815

The court must draw all reasonable inferences in

favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. are material. (1986). Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of production by either of two methods. Nissan Fire & Marine Ins. The substantive law will identify which facts

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 2000). The moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial. 9

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Id.

If the moving party discharges its burden by showing an

absence of evidence to support an essential element of a claim or defense, it is not required to produce evidence showing the absence of a material fact on such issues, or to support its motion with evidence negating the non-moving party's claim. Id.; see also

Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). If the

moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the non-moving party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." F.2d at 1409. If the moving party discharges its burden by negating an essential element of the non-moving party's claim or defense, it must produce affirmative evidence of such negation. F.3d at 1105. Nissan, 210 Bhan, 929

If the moving party produces such evidence, the

burden then shifts to the non-moving party to produce specific evidence to show that a dispute of material fact exists. Id.

If the moving party does not meet its initial burden of production by either method, the non-moving party is under no obligation to offer any evidence in support of its opposition. Id.

This is true even though the non-moving party bears the ultimate burden of persuasion at trial. Id. at 1107.

Where the moving party bears the burden of proof on an issue at trial, it must, in order to discharge its burden of showing that no genuine issue of material fact remains, make a prima facie showing in support of its position on that issue. 10 UA Local 343 v.

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Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994).

That

is, the moving party must present evidence that, if uncontroverted at trial, would entitle it to prevail on that issue. Id. Once it

has done so, the non-moving party must set forth specific facts controverting the moving party's prima facie case. 48 F.3d at 1471. UA Local 343,

The non-moving party's "burden of contradicting Id.

[the moving party's] evidence is not negligible." II. Section 1983

Title 42 U.S.C. § 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v.

Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive

rights, but merely provides a method for vindicating federal rights elsewhere conferred. (1989). Graham v. Connor, 490 U.S. 386, 393-94

In order to state a claim under § 1983, Plaintiffs must (1) the violation of a right secured by the

allege two elements:

Constitution or laws of the United States, and (2) the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). An individual defendant is liable for money damages under § 1983 only if the defendant personally participated in or otherwise proximately caused the unconstitutional deprivations of which the plaintiff complains. (9th Cir. 1988). Leer v. Murphy, 844 F.2d 628, 634

To establish individual liability, a plaintiff

must allege one of the following: (1) the defendant personally participated in or ordered the constitutional violation; (2) the defendant, acting in a supervisory capacity, failed to train 11

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properly or supervise personnel, resulting in the violation; (3) the defendant was responsible for an official policy or custom which caused the violation; or (4) the defendant knew of the violation and failed to prevent it. Taylor v. List, 880 F.2d 1040,

1045 (9th Cir. 1989); Ybarra v. Reno Thunderbird Mobile Home, 723 F.2d 675, 680 (9th Cir. 1984). Officials of the state while acting in their official capacities, are not "persons" within the meaning of § 1983. v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989). distinction derives from the Eleventh Amendment. Kentucky v. Graham, 473 U.S. 159, 165-168 (1985). Will The

Id. at 66-67; The Eleventh

Amendment bars suits in federal court for damages and retrospective injunctive relief against state officials, acting in their official capacity, unless the defendant has waived immunity or Congress has exercised its Fourteenth Amendment power to override immunity. Will, 491 U.S. at 66. In enacting 42 U.S.C. § 1983, Congress did Id. The

not intend to eliminate Eleventh Amendment immunity.

Eleventh Amendment also bars pendent state law claims against state officials in federal court. Pennhurst State Schl. & Hosp. v. Neither a state nor its

Halderman, 465 U.S. 89, 106, 121 (1984).

officials acting in their official capacities therefore may be sued under § 1983 for damages or retrospective injunctive relief. 491 U.S. at 71. However, a state official in his official capacity is considered a "person" for § 1983 purposes when sued for prospective injunctive relief. Id. at n.10. In what has become known as the Will,

Ex Parte Young doctrine, a suit for prospective injunctive relief provides a narrow exception to Eleventh Amendment immunity. 12 Ex

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Parte Young, 209 U.S. 123 (1908); Doe v. Lawrence Livermore Nat'l Lab., 131 F. 3d 836, 839 (9th Cir. 1997). EVIDENTIARY OBJECTIONS Defendants object to some of the evidence submitted by Plaintiffs. The Court has reviewed these evidentiary objections The Court will

and has not relied on any inadmissible evidence. not discuss each objection individually.

To the extent that the

Court has relied on evidence to which Defendants have objected, such evidence has been found admissible and the objections are overruled. DISCUSSION I. First Amendment Claim Based on Mail Delays Defendants argue that Mr. Ashker's claim based on mail delays is precluded because he did not state such a claim in his complaint. Mr. Ashker responds that this was an oversight and The Court will

requests that he be allowed to state this claim. allow Mr. Ashker's claim.

Plaintiffs claim that PBSP has an ongoing problem with processing personal mail in a timely manner and that this has been harmful to inmates and their relationships with family and friends. Defendants argue that a temporary delay in the delivery of mail, resulting from security inspections, does not violate the First Amendment. Defendants also argue that, even if there was a

constitutional violation, they are protected from suit by qualified immunity. Prisoners enjoy a First Amendment right to send and receive mail. Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing A prison,

Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). 13

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however, may adopt regulations or practices which impinge on a prisoner's First Amendment rights as long as the regulations are "reasonably related to legitimate penological interests." v. Safley, 482 U.S. 78, 89 (1987). Turner

The Turner standard applies to

regulations and practices concerning all correspondence between prisoners and to regulations concerning incoming mail received by prisoners from non-prisoners. Thornburgh, 490 U.S. at 413. In the

case of outgoing correspondence from prisoners to non-prisoners, however, an exception to the Turner standard applies. Because

outgoing correspondence from prisoners does not, by its very nature, pose a serious threat to internal prison order and security, there must be a closer fit between any regulation or practice affecting such correspondence and the purpose it purports to serve. Id. at 411-12.

Prison officials have a responsibility to forward mail to inmates promptly. 1975). Bryan v. Werner, 516 F.2d 233, 238 (3d Cir.

Allegations that mail delivery was delayed for an

inordinate amount of time are sufficient to state a claim for violation of the First Amendment. 1422, 1432 (7th Cir. 1996). Antonelli v. Sheahan, 81 F.3d

A temporary delay or isolated incident

of delay does not violate a prisoner's First Amendment rights. Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (policy of diverting publications through property room reasonably related to prison's interest in inspecting mail for contraband). CCR §§ 3120-3146 govern the receipt, processing and delivery of inmate mail. First class mail shall be delivered to the inmate

as soon as possible, but not later than seven calendar days from receipt of the mail at the facility mailroom. 14 CCR § 3133(a)(1).

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All non-confidential mail addressed to an inmate will be opened and inspected before delivery to the inmate and all non-confidential mail, whether incoming or outgoing, is subject to being read in its entirety by designated staff. CCR § 3133(b)(3).

Raoul Silva, a PBSP employee who has been a mail room supervisor since January 7, 2008, submits a declaration detailing the procedures used to process the mail at PBSP. several thousand items of incoming mail each day. PBSP receives First, mail is Legal mail

divided into the categories of personal and legal mail.

is not opened, except in limited circumstances set forth in the regulations. Personal mail is sorted into bins, with a separate Mail room workers sort through the

bin for each housing unit.

bins, opening each non-legal letter or package to ensure that there is no contraband and that stamps, money orders and pictures are properly processed. Each piece of mail is then stamped and placed

in a delivery bag that corresponds to the housing unit of the addressee. Correctional officers in each housing unit review the

incoming mail to ensure that it does not contain illegal communications. Near holidays such as Christmas, Valentine's Day,

Easter and Father's Day, the mail room must process approximately three times the amount of mail received on non-holidays and this causes processing delays. In regard to outgoing mail, Defendants are correct that the evidence consists of Mr. Troxell's January 23, 2005 602 appeal in which he complains about two pieces of mail that were delayed. Because this appeal pertains to only two incidents of delayed outgoing mail at the time of the Christmas holidays, it does not rise to the level of a constitutional violation. 15 See Crofton, 170

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F.3d at 961 (isolated incident of mail delay does not violate First Amendment). In regard to incoming mail, the evidence consists of Plaintiffs' two appeals and the envelopes submitted to show ongoing delays. There are seventeen envelopes postmarked from July 17,

2003 to May 2, 2005, none sent around the holidays, that were received by Plaintiffs from seventeen to thirty-seven days after the date of the postmark. Although Defendants argue there are only

a few pieces of mail that Plaintiffs received late, Plaintiffs' evidence is sufficient to raise a material dispute of fact regarding whether Defendants violated Plaintiffs' First Amendment rights by delaying mail delivery for an inordinate period of time. However, Plaintiffs' evidence is not sufficient to justify summary judgment in their favor either. Plaintiffs seek injunctive relief on this claim. In their

complaint, Plaintiffs do not specify the type of injunctive relief they seek. The Court assumes they seek an injunction directing For injunctive relief

Defendants to deliver their mail promptly.

purposes, Plaintiffs need only name a defendant who, in his official capacity, has responsibility for the mail procedures at PBSP. Francisco Jacquez, in his official capacity as warden of

PBSP, is an appropriate Defendant because he has authority over the mail procedures at PBSP. Warden Jacquez. However, as a request for damages, this claim must be denied because Plaintiffs' evidence fails to tie any particular Defendant to the act of delivering mail late. As stated above, § 1983 claims Therefore, this claim may proceed as to

for damages require proof that a particular defendant participated 16

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in or directly ordered the constitutional violation.

Summary

judgment is granted on this claim to all Defendants other than Warden Jacquez. Further, even if Plaintiffs had proof of the

participation of the other Defendants, they would be protected from liability for damages by qualified immunity. A. Qualified Immunity The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The

threshold question is whether, if all factual disputes were resolved in favor of the party asserting the injury, the evidence would show the defendant's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). "If no constitutional

right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. On the other hand, if a violation could be made

out on the allegations, the next step is to ask whether the constitutional right in issue was clearly established. Id. The

question here is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id.

If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. In Id.

Pearson v. Callahan, __ S.Ct. __, 2009 WL 128768, * 9

(U.S. Jan. 21, 2009), the Supreme Court overruled Saucier's requirement that the court must determine first whether there was a 17

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constitutional deprivation and then whether such right was clearly established. Under Pearson, the court may exercise its discretion

in deciding which prong to address first, in light of the particular circumstances of each case. Id. (noting that though the

Saucier sequence is often appropriate and most efficient, it is no longer mandatory). The Court concludes that, even if ongoing delays of the delivery of incoming mail violated Plaintiffs' First Amendment rights, qualified immunity applies because the law was not clearly established at the time of the conduct at issue and Defendants' conduct was objectively reasonable. Thornburgh v. Abbott is the

only Supreme Court case to discuss the First Amendment rights of prisoners to receive incoming mail. In Thornburgh, the Court

examined regulations governing the censorship and distribution of prisoners' incoming publications. The Court found the regulations

at issue were facially constitutional because they met the Turner v. Safely test and were reasonably related to legitimate penological interests. Thornburgh, 490 U.S. at 419.

Here, Plaintiffs are not complaining that the regulations at issue are unconstitutional. They agree that PBSP has a legitimate Their

penological interest in screening their incoming mail.

complaint is that PBSP mail screening procedure takes too long and PBSP does not hire enough staff to process the mail efficiently. The only Ninth Circuit case cited by Plaintiffs is Morrison v. Hall, 261 F.3d 896, 905 (9th Cir. 2001), which held that Oregon state prison regulations prohibiting bulk rate, third and fourth class mail did not meet the Turner factors and was unconstitutional as applied to pre-paid, for-profit, subscription publications. 18

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This case does not establish how promptly or efficiently mail must be delivered to inmates. Plaintiffs also cite a Third Circuit

case, Bryan v. Werner, 516 F.2d 233, 238 (3rd Cir. 1975), which stated, in dicta, that prison officials have a responsibility to deliver mail from the courts promptly to inmates. This out-of-

circuit case, which focuses on legal mail, does not create clearly established law in the Ninth Circuit as to how promptly personal mail must be delivered. In Antonelli, 81 F.3d at 1432, the Seventh

Circuit held that the allegation that mail delivery was being delayed for an inordinate amount of time and sometimes mail was stolen was sufficient to withstand a motion to dismiss for failure to state a claim. However, this Seventh Circuit case likewise does

not create clearly established law in the Ninth Circuit as to how promptly mail must be delivered. Therefore, Defendants are qualifiedly immune from suit for damages on this claim. II. First Amendment Claim Based on Withheld Magazines Plaintiffs bring a facial and an as-applied First Amendment challenge to the regulations which ban magazines that contain frontal nudity and tattoo art. They also claim the ban on

magazines containing frontal nudity violates California Penal Code § 2602(c). Regulations limiting prisoners' access to publications or other information are valid only if they are reasonably related to legitimate penological interests. (citing Turner, 482 U.S. at 89). Thornburgh, 490 U.S. at 413 Considerable deference is given

to the determination of prison administrators who, in the interest of security, regulate the relations of prisoners with the outside 19

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world.

Id. at 408.

There are four factors to consider when

determining whether a regulation is reasonably related to legitimate penological interests: (1) whether there is a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it"; (2) "whether there are alternative means of exercising the right that remain open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources generally"; and (4) the "absence of ready alternatives", or, in other words, whether the rule at issue is an "exaggerated response to prison concerns." Turner, 482 U.S. at 89-90.

A. Nudity The California Code of Regulations provides that inmates may not possess obscene materials. CCR § 3006. In 2002, this

regulation was amended to add subsection (c)(17) which provides that inmates may not possess "sexually explicit images that depict frontal nudity in the form of personal photographs, drawings, magazines, or other pictorial format." CCR § 3006(c)(17).

Sexually explicit material is defined as "material that shows the frontal nudity of either gender, including the exposed female breast(s) and/or genitals of either gender." CCR § 3006(c)(17)A).

There is an exception for educational, medical, scientific or artistic materials approved by the head of the institution or his or her designee on a case-by-case basis. CCR § 3006(c)(17)(B).

PBSP Operating Procedure (OP) 205, dated August, 2005, lists magazines that are permanently excluded, including the magazine "Juxtapoz," which is at issue here. 20

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1. Facial Challenge to Regulation Defendants argue CCR § 3006(c)(17) is constitutional because, under Turner, it is reasonably related to legitimate penological interests. In support of their argument, Defendants rely on Mauro

v. Arpaio, 188 F.3d 1054, 1059-63 (9th Cir. 1999) (en banc), in which the court found that a jail policy banning materials depicting frontal nudity passed constitutional muster because it met all four prongs of the Turner test. Additionally, Defendants

rely on Nelson v. Woodford, 2006 WL 571359, at *3-5 (N.D. Cal. Mar. 2, 2006), in which the district court applied Mauro to find that CCR § 3006(c)(17) is constitutional because it is reasonably related to legitimate penological interests. On appeal, the Ninth

Circuit affirmed the district court's ruling in Nelson, holding: "The district court properly concluded that the regulations prohibiting Nelson's possession of obscene or sexually explicit material, 15 Cal. Code Reg. §§ 3006(c)(15) & (17), respectively, are constitutional because the regulations' underlying policies are reasonably related to legitimate penological interests." Woodford, 249 Fed. Appx. 529, 530 (9th Cir. 2007). Plaintiffs contend Mauro is inapposite because it was a county jail case where the average stay was fourteen days, as opposed to Plaintiffs' life sentences. instant case. Mauro is directly relevant to the Nelson v.

Although Mauro arose in a county jail, other courts

in this district have applied its reasoning to CCR § 3006(c)(17) in cases brought by inmates incarcerated at PBSP. See Nelson, 2006 WL

571359, at *4; Self v. Horel, 2008 WL 5048392, at *1 (N.D. Cal. Nov. 24, 2008) (plaintiff housed in PBSP SHU). Plaintiffs also argue that Defendants have failed to produce 21

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evidence of sexual harassment of PBSP staff caused by publications portraying frontal nudity. However, under the Turner test,

Defendants need not show specific instances of incidents that occurred as a result of the challenged policy. F.3d 1516, 1521 (9th Cir. 1993). Casey v. Lewis, 4

It is sufficient that a prison

regulation is justified on the basis of anticipated security problems. Id.

Therefore, CCR § 3006(c)(17) is facially constitutional. 2. As-Applied Challenge to Regulation Plaintiffs argue that § 3006(c)(17) is unconstitutional as applied to them because Juxtapoz is an artistic magazine which includes some incidental nudity relating to art subjects and should be allowed under the artistic exception. Defendants determined

that Juxtapoz did not meet the artistic exception because the frontal nudity it displayed created a hostile work environment for staff. See Kirkland Admissions, Ex. LL.

Prison officials have broad discretion to determine what publications may enter a prison. Thornburgh, 490 U.S. at 416.

Regulations that provide for individualized determinations as opposed to predetermined categorical exclusions strike an acceptable balance between the prison's legitimate governmental objectives and prisoners' First Amendment rights. n. 15. Id. at 416-17 &

CCR § 3006(c)(17) provides for individualized

determinations as to what sexually explicit materials inmates may possess. Even if, as Plaintiffs argue, Juxtapoz has artistic

value, it was neither arbitrary nor irrational for Defendants to deny Plaintiffs access to the publication. Although CCR

§ 3006(c)(17)(B)(2) allows inmates to possess some sexually 22

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explicit materials, it does not require that inmates be allowed to possess sexually explicit material solely because they believe it has artistic value. Defendants' decision did not deprive

Plaintiffs of the right to possess either educational art materials that meet the requirements of CCR § 3006(c)(17)(B)(2). Mr. Troxell argues that magazines like Juxtapoz are invaluable to him because he used them as art reference material for his art work and that all adult fantasy art, which is the kind he does, portrays some partial nudity. Plaintiffs also explain that,

previous to their incarceration, they were part of the biker culture and lament their loss of connection to this lifestyle because certain biker lifestyle magazines have been banned on the ground that they contain frontal nudity. Plaintiffs have no constitutional right to this connection. As stated above, Mr. Troxell has access to other educational or art materials that do not contain frontal nudity or that meet the requirements of CCR § 3006(c)(17)(B)(2) and Plaintiffs have access to any biker lifestyle magazines that do not display frontal nudity. Therefore, Defendants' determination to ban Juxtapoz was a

constitutional application of 3006(c)(17). 3. Violation of California Penal Code § 2601 Plaintiffs contend that CCR § 2006(c)(17) violates California Penal Code § 2601(c)(1) because the legislative history of § 2601 establishes that the legislature declined to include a ban on frontal nudity. Defendants argue that this claim is waived because Plaintiffs

Plaintiffs did not include it in their complaint.

correctly point out that they referred to § 2601 in ¶ 233 of their First Amended Complaint. However, this claim is foreclosed by Snow 23

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v. Woodford, 128 Cal. App. 4th 383, 394 (2005), which held that CCR § 2006 was enacted to prevent conditions which tend to incite riot or violence and, thus, does not violate Penal Code § 2601. B. Tattoo Publications California regulations provide that inmates shall not tattoo themself or others, and shall not permit tattoos to be placed on themselves. CCR § 3063. Tattooing or the possession of tattoo CCR § 3315. A serious

paraphernalia is a serious rule violation.

rule violation is defined as a violation of the law. § 3312(a)(3).

CCR

Based on these regulations, magazines whose primary Silva

purpose is to encourage tattooing are prohibited at PBSP. Dec. ¶ 14.

The magazines "Savage Tattoo," "Tattoo," and "Flash

Tattoo," at issue here, are on the list of banned publications. Jud. Not., Exs. 3, 4. Defendants denied Mr. Ashker's 602 appeal for the following reasons: (1) tattooing is recognized as a means for transmitting serious diseases such as AIDS and hepatitis between inmates; (2) the primary function of the tattoo magazines at issue is to promote tattooing, they often contain articles on how to tattoo or how to make tattoo paraphernalia, and they are used for tattoo patterns; and (3) other forms of media, such as newspapers, could be used to keep current on tattoo art. Jud. Not., Exs. 5 and 6.

Defendants also argue that tattoos can be used for gang identification, which promotes gang violence and threatens the security of PBSP. The four factor Turner test applies to determine if the regulation prohibiting tattoo magazines violates Plaintiffs' First Amendment rights. The first Turner factor is met because the 24

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regulation promotes penological interests in maintaining the health, safety and security of the prison, its inmates and its employees. Furthermore, it is neutral in that it prohibits all

publications that promote tattooing without regard for the content of the tattoos. The second Turner factor is met because inmates have access to other artistic books and magazines and can read about tattooing in newspapers and other periodicals. The third Turner factor is met because the regulation protects the interests and security of guards and inmates, which outweighs the restriction on Plaintiffs' rights. The fourth Turner factor is

met because Plaintiffs, who have the burden of putting forth alternatives to the regulation, have failed to do so. Plaintiffs argue that they received the magazines at issue for over twenty years before PBSP banned them in 2003 and that the content is about benign subjects such as artist profiles, lifestyle and philosophies, history, music and fashion. However, they do not

dispute that the magazines' purpose is to promote tattooing and to describe the methods for tattooing. unpersuasive. Plaintiffs submit declarations of two inmates who were previously housed in the SHU at Corcoran State Prison (Corcoran) who state that tattoo magazines were not banned in the SHU at Corcoran. (Docket ## 293 and 294). Citing Griffin v. Lombardi, Therefore, this argument is

946 F.2d 604, 607-08 (8th Cir. 1991), Plaintiffs argue that these declarations raise a factual dispute as to the legitimacy of PBSB's ban. Griffen is distinguishable. In Griffen, the declarations

that raised a factual dispute were from prisoners who had received 25

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original diplomas and transcripts at other institutions and were allowed to retain them when they were transferred to the prison where the plaintiffs were incarcerated. Here, Plaintiffs submit

only two declarations from inmates formerly housed in the SHU at Corcoran, which may not have had the same characteristics as the SHU at PBSP. In Brown v. Peyton, 437 F.2d 1228, 1232 (4th Cir. 1971), another case cited by Plaintiffs, the court indicated that distribution of the religious magazine in question had increased at other prisons and that the experience of those institutions would be probative of the question of the state interests in forbidding the publication. Here, the publication at issue is not a religious

magazine and there is no evidence that its distribution is increasing at other penal institutions. Furthermore, both Griffin and Brown are out-of-circuit decisions that are not binding on this Court; Plaintiffs have not cited any Ninth Circuit authority on this issue. Therefore, the regulations at issue are constitutional on their face and as applied to Plaintiffs. Even if there were a constitutional violation, the doctrine of qualified immunity would apply to any damages claim. As noted,

Plaintiffs have not submitted relevant Ninth Circuit or Supreme Court authority on this claim. Thus the law is not clearly

established and Defendants could not have understood their actions would violate Plaintiffs' rights. Accordingly, summary judgment is granted in favor of Defendants on this claim and Plaintiffs' cross-motion for summary judgment is denied. 26

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III. Gang Validation Procedures and Placement in SHU A. Due Process Legal Standard California's policy of housing suspected gang members in the SHU is not a disciplinary measure, but an administrative strategy to preserve order in the prison and protect the safety of all inmates. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003).

However, California statutes and prison regulations create a liberty interest in freedom from administrative segregation. Toussaint v. McCarthy, 801 F.2d 1080, 1098, 1100 (9th Cir. 1986).8 In Wilkinson v. Austin, 545 U.S. 209, 223-25 (2005), the Supreme Court held that indefinite placement in Ohio's "supermax" facility, where inmates are not eligible for parole consideration, imposes an "atypical and significant hardship within the correctional context." Based on Wilkinson, because indefinite placement in

California's SHU may render inmates ineligible for parole consideration, California prisoners may have a liberty interest in not being placed indefinitely in the SHU. When prison officials initially determine whether a prisoner is to be segregated for administrative reasons, due process requires that they comply with the following procedures: (1) they must hold an informal non-adversary hearing within a reasonable time after the prisoner is segregated, (2) the prisoner must be informed of the charges against him or the reasons segregation is CCR § 3335(a) permits placement in administrative segregation where the presence of an inmate in the general population poses a threat to his own safety and/or to an ongoing investigation of serious misconduct or criminal activity. CCR § 3339(a) provides that release from segregation shall occur at the earliest possible time. Toussaint v. McCarthy held that when read together, these regulations create a liberty interest in freedom from administrative segregation. 801 F.2d at 1098. 27
8

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being considered, and (3) the prisoner must be allowed to present his views. Toussaint, 801 F.2d at 1100. Due process does not

require detailed written notice of charges, representation by counsel or counsel-substitute, an opportunity to present witnesses, a written decision describing the reasons for placing the prisoner in administrative segregation or disclosure of the identity of any person providing information leading to the prisoner's placement in administrative segregation. Id. at 1100-01; accord Wilkinson, 545

U.S. at 228-29 (determining that prisoners are constitutionally entitled only to the informal, non-adversary procedures set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1 (1979), and Hewitt v. Helms, 459 U.S. 460 (1983), prior to assignment to "supermax" facility). Following placement in administrative segregation, prison officials must engage in some sort of periodic review of the inmate's confinement. F.2d at 1101. Hewitt, 459 U.S. at 477 n.9; Toussaint, 801

Due process is satisfied if the decision to

segregate the inmate is reviewed by prison officials every 120 days, Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir. 1990), cert. denied 502 U.S. 874 (1991), and the review amounts to more than "meaningless gestures," Toussaint v. Rowland, 711 F. Supp. 536, 540 n.11 (N.D. Cal. 1989) (citing Toussaint v. McCarthy, 801 F.2d at 1102). Violation of procedural due process rights requires only procedural correction and not a reinstatement of the substantive right. (9th Cir. 1991). The Ninth Circuit requires that "some evidence" support a decision to place an inmate in segregation for administrative 28 Raditch v. United States, 929 F.2d 478, 481

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reasons.

Toussaint, 801 F.2d at 1104.

This standard applies to Bruce, 351 F.3d at 1287-

placement in a SHU for gang affiliation. 88.

The standard is met if there was some evidence from which the Id. at

conclusion of the administrative tribunal could be deduced.

1105 (citing Superintendent v Hill, 472 U.S. 445, 455 (1985)). Ascertaining whether the standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses or weighing of the evidence. Id.

Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached. Id.

The Ninth Circuit requires that the evidence relied upon by prison disciplinary boards contain "some indicia of reliability," Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987), but has not directly considered whether a corresponding need for evidentiary reliability exists when prison officials segregate an inmate for administrative reasons. Some district courts have extended the

reliability requirement to the administrative context, however, holding that "the evidence relied upon to confine an inmate to the SHU for gang affiliation must have 'some indicia of reliability' to satisfy due process requirements." Madrid v. Gomez, 889 F. Supp.

1146, 1273-74 (N.D. Cal. 1995); see Jones v. Gomez, 1993 WL 341282, *3-4 (N.D. Cal.) (due process requires indicia of reliability due to high risk of false information by informants, inherent prisoner conflicts and necessity for independent fact-finding by prison officials). Adequate indicia of reliability are (1) the oath of

the investigating officer as to the truth of his report that contains confidential information; (2) corroborating testimony; (3) a statement by the chairman of the committee that he had first29

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hand knowledge of sources of information and considered them reliable based on the informant's past record; and (4) an in camera review of the documentation from which credibility was assessed. Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir. 1987). B. California's Regulations for Placement in the SHU CCR § 3378 sets forth the procedures followed to validate inmates as active members or associates of prison gangs. Validation requires three independent source items of documentation indicative of actual membership. CCR §§ 3378(c)(3) and (4). Prior

to the submission of a validation package, an inmate is given an opportunity to challenge, in an interview with the IGI, the items used in the validation. CCR § 2278(c)(6)(A). Inmates are to be

given written notice at least twenty-four hours in advance of the interview. CCR § 2278(c)(6)(B). All non-confidential source items

shall be disclosed to the inmate at the time of notification and any confidential information is disclosed generally. § 2278(c)(6)(C). CCR

A validated gang member or associate is deemed to

be a severe threat to the safety of others or the security of the institution and will be placed in the SHU for an indeterminate term. CCR § 3341.5(c)(2)(A)2. An inmate assigned to the SHU on an

indeterminate basis shall be reviewed by a classification committee at least every 180 days for consideration of release to the general population. CCR § 3341.5(c)(2)(A)1. As part of the review, the

IGI reviews evidence previously relied upon to ensure that it was reviewed by the OCS and is reliable. Beeson Dec. ¶ 15. If the

evidence was reviewed by the OCS and is deemed to be reliable, the ICC keeps the inmate in the SHU. Id.

An inmate housed in the SHU as a gang member or associate may 30

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be considered for reclassification to inactive status when the inmate has not been identified as having been involved in gang activity for a minimum of six years. 3378(e). CCR § 3341.5(c)(5); CCR §

A full review of the validated inmate's gang status takes Beeson Dec. ¶ 16. If the review shows that

place every six years.

the most recent evidence of gang activity is more than six years old, the IGI reviews the inmate's C-File for evidence of more recent gang membership. Beeson Dec. ¶ 17. If the C-File contains

no evidence of recent activity, the investigation proceeds to other areas that may reveal such evidence such as cell searches, information from other agencies and review of the inmate's newer tattoos. Beeson Dec. ¶ 18.

The evidence used for gang validation may be based on selfadmission, tattoos and symbols, written material, photographs, staff information, information from other agencies, association, informants, offenses, legal documents, visitors, communications observed by prison employees and debriefing reports. § 3378(c)(8). CCR

The evidence must meet the criteria for reliability

set forth in the CDCR Department Operations Manual (DOM) §§ 61020.7-10. Beeson Dec. ¶ 12.

Debriefing is the process by which the IGI determines whether an inmate has dropped out of a gang. Beeson Dec. ¶ 24. Its

purpose is not to acquire incriminating evidence against the inmate, but to provide the IGI with enough information reasonably to conclude that the inmate has dropped out of the gang. Dec. ¶¶ 25, 26. C. Statute of Limitations The Court's June 14, 2007 Order Granting in Part Defendants' 31 Beeson

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Motion to Dismiss held that Mr. Ashker's 602 appeals 01-2335 and 04-2600 and Mr. Troxell's 602 appeal 88-1657 exhausted their due process claim based on Defendants' AB validation procedures and denied without prejudice Defendants' motion to dismiss on statute of limitations grounds. The Court's December 26, 2007 Order

Denying Plaintiffs' Motions for Leave to File A Second Amended Complaint noted that Defendants conceded that Mr. Ashker's due process claim based on his 2001 and 2004 appeals were timely, but that they argued that Mr. Troxell's claim, which was exhausted in appeal 88-1657, was barred because it was based on events that occurred prior to August 11, 2001, the date the applicable statute of limitations expired. The Court ruled that the continuing

violation theory premised on a systematic policy or practice of discrimination might apply and denied Defendants' motion to dismiss Mr. Troxell's claim on statute of limitations grounds without prejudice to refiling it with their motion for summary judgment.9 Defendants now argue that Mr. Troxell's AB validation claim is barred by the statute of limitations because it does not meet the requirements of a continuing violation as set forth in Knox v. Davis, 260 F.3d 1009 (9th Cir. 2001). In Knox, the court explained

that because the plaintiff did not allege a system or practice of discrimination, the only way he could show a continuing violation

A plaintiff who claims a policy and practice of systematic discrimination, as opposed to alleging only individual discriminatory acts, may, in certain circumstances, utilize the continuing violations doctrine. Gutowski v. County of Placer, 108 F.3d 256, 259 (9th Cir. 1997). Under this approach, an action is always timely if brought by a plaintiff currently subject to the policy, because such policy continually deters the plaintiff from seeking full rights or threatens to adversely affect the plaintiff in the future. Id. 32

9

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was to "state facts sufficient to support a determination that the alleged discriminatory acts are related closely enough to constitute a continuing violation, and that one or more of the acts falls within the limitations period." Id. at 1013. The court also

differentiated between the continuing impact of a past violation, which does not affect the statute of limitations, and a continuing violation. Id. at 1014. The former occurs when the defendants'

previous decision causes them to take subsequent action based upon that decision. Id. Because the first decision puts the plaintiff

on notice of the future wrongful acts, the statute of limitations is deemed to have commenced at the time of the first decision. Id.

Plaintiffs argue that Defendants have arbitrarily applied the applicable California regulations as a pretext for keeping them in the SHU until they become informants. Plaintiffs have made an

insufficient showing to establish a pattern or practice of discrimination; thus, Plaintiffs must show that the alleged discriminatory acts are related closely enough to constitute a continuing violation and that one or more of the acts fell within the limitations period. Defendants argue that the acts of which

Mr. Troxell complains are continuing effects of previous actions, not the independent actions required to prove a continuing violation. Mr. Troxell was first validated as a member of the AB gang in 1985; he was re-validated in 1995 and 2003. From 1985 to 1995, the

interim decisions to retain Mr. Troxell in the SHU were related to the 1985 validation. Between 1995 and 2003, the interim decisions

to retain Mr. Troxell in the SHU were related to the 1995 revalidation decision. 33

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The Court finds that the interim decisions through 1995 are continuing effects of the 1985 validation and the 1995 revalidation is too far removed in time to be considered a continuing violation of the 1985 validation. Because Mr. Troxell has only

exhausted his administrative remedies with respect to the 1985 validation, his claim is barred by the statute of limitations. D. Ashker's Due Process Claim Mr. Ashker claims his procedural due process rights were violated because he was not given an adequate opportunity to challenge his 2001 inactive review and his 2002 and 2003 revalidations as a gang member. However, Mr. Ashker does not argue

that he did not receive the required notice and opportunity to participate in the hearings at issue. Mr. Ashker states that he

did not participate in the 180-day reviews of his status "because such `reviews' are meaningless [shams], due to the fact these committees have absolutely no authority at all to do anything about my SHU status unless I had previously debriefed" or had been recommended for inactive status. Ashker Dec. ¶ 93. His refusal to

participate in the process does not constitute a due process violation by Defendants. Although Mr. Ashker concedes he was provided with a summary of the confidential information used to validate him as a gang member, he argues he was entitled to the confidential information itself. However, due process does not require prison officials to release confidential information if disclosure would compromise institutional security. Toussaint, 801 F.2d at 1101. As indicated

by Defendants, disclosure of the confidential information to Mr. Ashker would compromise ongoing investigations of prison gang 34

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activity and would allow Mr. Ashker to disseminate the confidential information which would threaten the safety and security of the confidential informants. Mr. Ashker argues that the fact that he has never been issued a CDC-115 Rule Violation Report (RVR) establishes that he is not a member of a gang. His theory is that the definition of gang

activity includes the commission of felonious acts for which an RVR must be issued. This argument is frivolous.

Mr. Ashker also contends that the regulations are enforced arbitrarily because there are many gang members in the general population. However, the evidence submitted for this contention is Furthermore, this

inadmissible newspaper and magazine articles.

evidence does not support his claim that Defendants improperly reviewed him for gang validation. Mr. Ashker also claims that the debriefing process is a sham because it forces inmates who are not gang members and who want to be released from the SHU to lie about gang involvement. He states

that he would not debrief because it would put his life at risk from retaliation by other inmates. Thus, he argues, once an inmate

is placed in the SHU because of gang membership, he can never get out of the SHU. However, the regulations provide that an inmate

may be placed on inactive status and released from the SHU if there is no new evidence of gang activity for six years. Furthermore, as

discussed above, the regulations contain adequate due process considerations for the determination that an inmate is a gang member. Mr. Ashker argues that the evidence used for his inactive review and the resulting re-validation as a gang member was based 35

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on innocuous associational activity and unsubstantiated allegations of confidential informants. Defendants have submitted, for in camera review, eight confidential memos which the IGI relied upon to conclude that Mr. Ashker was still a member of the AB prison gang. These documents

were in Mr. Ashker's Central File in August, 2001 and reviewed by the IGI for the purpose of determining whether to re-validate him as a gang member. See Kenny Dec., Ex. 1 August 2, 2001 Memo from The Court has reviewed these

Lt. G.H. Wise, IGI Investigator.

memos and finds that they constitute more than the required some evidence that Mr. Ashker is a member of the AB gang and that they contain adequate indicia of reliability. Mr. Ashker's main argument regarding the evidence is that it must be false because he was not issued a serious rule violation. However, as discussed above, to be validated as a member of a gang, all that is needed is evidence of active gang activity such as that contained in the confidential memos discussed above. Furthermore,

Mr. Ashker's attestations that he has never been a member of the AB gang raises