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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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8 ERNESTO LIRA,

No. C 00-0905 SI

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Plaintiff,

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v.

FINDINGS OF FACT AND CONCLUSIONS OF LAW; ORDER

United States District Court For the Northern District of California

11 MATTHEW CATE, SECRETARY OF CALIFORNIA DEPARTMENT OF
12 CORRECTIONS AND REHABILITATION,

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Defendant.

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Plaintiff Ernesto Lira filed this civil rights action under 42 U.S.C. § 1983, challenging his

16 placement in administrative segregation (“Ad-Seg”) while at Deuel Vocational Institution, and later in

17 a Security Housing Unit (“SHU”) at Pelican Bay State Prison. Prison officials placed plaintiff in Ad-

18 Seg and the SHU after he was “validated” as an associate of the Northern Structure prison gang.

19 Plaintiff claims that his due process rights were violated because he was not in fact an associate of the

20 prison gang and his validation was not supported by sufficient, reliable evidence. Plaintiff also claims

21 that his due process rights were violated because he was not given notice and an opportunity to present

22 his views before being placed in segregation, and because he was denied meaningful opportunities to

23 challenge his validation and continued retention in segregated housing.

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Plaintiff originally filed this case pro se. By order filed May 17, 2002, the Court dismissed the

25 case without prejudice on the ground that plaintiff had not exhausted his administrative remedies with

26 respect to all of the claims alleged in the complaint. Plaintiff appealed to the Ninth Circuit, and the

27 Ninth Circuit appointed counsel to represent plaintiff on appeal. The Ninth Circuit reversed and

28 remanded, holding that the Prison Litigation Reform Act did not require dismissal of an entire action

where a prisoner’s complaint contains exhausted and unexhausted claims. See Lira v. Herrera, 427 F.3d

United States District Court For the Northern District of California

1 1164 (9th Cir. 2005). Instead, the Ninth Circuit instructed that the proper treatment of a “mixed”

2 complaint depends on the relatedness of the claims. If the exhausted and unexhausted claims are

3 interrelated, the district court should dismiss the complaint and allow the plaintiff the opportunity to

4 amend the complaint to excise the unexhausted claims; if the claims are not interrelated, the court should

5 dismiss the unexhausted claims and allow the case to proceed.

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With respect to Lira’s case, the Ninth Circuit stated:

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The district court’s dismissal of Lira’s case turned on its implicit, but not fully discussed,

interpretation of Lira’s complaint as presenting multiple claims regarding his validation

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as a Northern Structure gang member. It correlated the number of grievances filed

within the California prison system with the number of claims within his complaint, and

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therefore did not regard his complaint as presenting a single due process claim

challenging the unavailability of the evidence used against him and resulting in his

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placement and retention in administrative segregation.

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Lira has argued to this court, having received counsel since his last appearance in district

court, that his complaint actually presents “a constellation of due process violations for

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his validation as a gang associate and his placement and retention in the administrative

segregation at [DVI] and the SHU at Pelican Bay” that amounted to a single, exhausted

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claim.

14 Id. at 1177 (emphasis in original). The Ninth Circuit noted that “[a]lthough there is force to Lira’s

15 argument, we leave it to the district court to consider this new characterization of Lira’s due process

16 claim in the first instance.” Id. at n.13.

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On remand, plaintiff continued to be represented by counsel. The Court found that plaintiff’s

18 due process claims were interrelated, and allowed plaintiff to file an amended complaint alleging a

19 single due process violation arising out of his gang validation and placement and retention in Ad-Seg

20 and the SHU. As originally filed, plaintiff’s first amended complaint named as defendants a number

21 of CDCR personnel sued for damages in their individual capacity, along with the Secretary of CDCR,

22 who was sued in his official capacity for declaratory and system-wide injunctive relief. As a result of

23 procedural and factual developments, plaintiff dismissed the individual defendants and all claims for

24 damages, leaving only claims for declaratory and injunctive relief specific to plaintiff. From January

25 13 to February 12, 2009, the Court held a bench trial on plaintiff’s claims for declaratory and injunctive

26 relief.

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As set forth below in the Findings of Fact and Conclusions of Law, the Court finds that

28 plaintiff’s due process rights were violated when he was initially validated as a Northern Structure

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United States District Court For the Northern District of California

1 associate because he was never given notice of the initial validation investigation, and was never

2 afforded the opportunity to be heard prior being validated or placed in administrative segregation;

3 indeed, plaintiff was completely unaware of the entire initial validation process and was on parole at the

4 time of the validation. The Court also finds that this deprivation of procedural due process was not

5 cured in any of the subsequent administrative hearings and inmate appeals because none of these

6 proceedings constituted a meaningful review of the gang validation. Finally, the Court finds that

7 plaintiff’s substantive due process rights were violated because the items of evidence used to validate

8 plaintiff as a prison gang associate lack sufficient indicia of reliability to meet the “some evidence”

9 standard as required by the case law. See Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S.

10 445, 455 (1985); Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987).

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As a result of the improper validation, plaintiff spent over eight years in the SHU at Pelican Bay

12 State Prison. During that time, plaintiff suffered from the extreme confinement, isolation and

13 deprivation of SHU imprisonment, witnessed violence among inmates, including the strangulation of

14 an inmate, and feared that he would be the target of reprisal due to his refusal to affiliate with the

15 Northern Structure prison gang. Based upon expert testimony and evidence at trial, the Court finds that

16 plaintiff’s experience in the SHU caused him to develop clinical depression and post-traumatic stress

17 disorder, and that plaintiff suffers from these conditions today, despite his parole from Pelican Bay.

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The Court finds that plaintiff is entitled to a judicial declaration that his gang validation was

19 never supported by accurate or reliable evidence and was implemented in violation of his procedural

20 rights. The Court also finds that plaintiff is entitled to an order directing defendant Matthew Cate as

21 Secretary of CDCR to expunge plaintiff’s validation as a Northern Structure associate from CDCR

22 records, to report the expungement to all gang-related law enforcement databases and clearinghouses

23 to which the original validation was reported previously, and to remove all documents related to the 24 validation from plaintiff’s prison file. 25

26 27 A. 28

FINDINGS OF FACT Plaintiff’s Background 1. Plaintiff is a forty-five-year-old Mexican-American man who was born in Van Horn,

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United States District Court For the Northern District of California

1 Texas. Plaintiff is the second youngest of nine children, and he grew up in a small town called Planada,

2 California, where his parents were farm workers.

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2. Plaintiff attended school through the tenth grade, and then in 1980 was sent to the

4 California Youth Authority (“CYA”) for possession of stolen goods. Between 1982 and 1996, plaintiff

5 had several felony convictions for small theft-related crimes, and one crime involving possession of

6 methamphetamine. None of these crimes involved violence or were gang-related.

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3. In 1992, plaintiff was charged with petty theft and awaited trial at the Merced County

8 jail. Plaintiff was convicted, and on June 18, 1992, he was sent to Deuel Vocational Institution (“DVI”)

9 for processing. After he was processed, plaintiff was transferred to the Sierra Conservation Center

10 (“SCC”) at Jamestown, California, to serve his sentence.

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4. At SCC, plaintiff was housed with the general inmate population.1 Plaintiff earned work-

12 time credit by working as a dorm janitor, and at one point was a janitor for a dormitory that included

13 Mexicans from Southern California. This caused no problems for plaintiff. Plaintiff slept in an 18-bed

14 dormitory building, which included a day-room with a television, and he ate and engaged in sports and

15 other recreational activities with fellow inmates. Plaintiff also had unrestricted access to a communal

16 yard, a library, and educational programs. Plaintiff’s mother and sister often visited plaintiff while he

17 was at SCC. Plaintiff remained incarcerated at SCC from August 13, 1992 until he paroled on May 14,

18 1993.

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20 B. The Northern Structure Prison Gang

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5. Prison gangs have been a consistent problem for California prisons. The United States

22 Supreme Court has described prison gangs as organizations that are “[c]landestine, organized, fueled 23 by race-based hostility, and committed to fear and violence as a means of disciplining their own 24

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1 Plaintiff was housed in the lowest security portion of the facility, Level I, until around April

7, 1993, when SCC prison officials received information that plaintiff was trying to escalate problems 26 between Northern and Southern Hispanic inmates on the prison yard. As a result of this information,

plaintiff was placed in Ad-Seg. On April 22, 1993, plaintiff appeared before the Institutional 27 Classification Committee concerning this incident, and he informed the ICC that he would not cause or

experience any further problems if released from Ad-Seg. ICC released plaintiff to the medium security 28 portion of the facility, Level II, where he stayed until he paroled on May 14, 1993. This incident was

not the basis of plaintiff’s subsequent prison gang validation.

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United States District Court For the Northern District of California

1 members and their rivals, [and which] seek nothing less than to control prison life and to extend their

2 powers outside prison walls.” Wilkinson v. Austin, 545 U.S. 209, 222 (2005). Faced with serious threats

3 to institutional safety at the hands of gang members, the California Department of Corrections and

4 Rehabilitation (“CDCR”) instituted a policy of administratively segregating any inmate who is

5 “validated” as a member of a prison gang. This validation process is initiated when prison officials

6 suspect an inmate of gang affiliation, and involves an investigation into an inmate’s possible gang

7 connections. If the investigation yields sufficient evidence of an inmate’s connection to a prison gang,

8 the inmate is formally validated and is segregated from the general prison population.

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6. The “Northern Structure” (“NS”) prison gang is made up of Hispanics from Northern

10 California (“Northern Hispanic” or “Norteño”). NS was created in 1984 as a subsidiary of the “Nuestra

11 Familia” (“NF”) prison gang. NF is a formerly prominent prison gang that lost influence within the

12 prison system after CDCR began recognizing and validating its members. Because NF members were

13 increasingly segregated, NF created a subsidiary prison gang called the Nuestra Raza, which CDCR

14 recognizes as the Northern Structure. NS recruits for, and is subordinate to, NF. Symbols commonly

15 associated with the Northern Structure gang are the Northern Star, the Huelga bird, and the number

16 “14.”

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18 C. The 1993 Prison Gang Validation of Plaintiff

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7. In approximately December of 1992, while plaintiff was still at SCC, prison officials at

20 SCC initiated the process of validating plaintiff as an associate of the Northern Structure prison gang.

21 Assistant Institutional Gang Investigator (“IGI”) Milo Smith, who had training and experience in prison

22 gang investigation, handled plaintiff’s gang validation. Officer Smith testified that he does not recall 23 why he initially began investigating plaintiff.2 24

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2 The record is unclear as to exactly when or why the validation process began. IGI Smith

testified that he does not recall the impetus for initiating the validation process for plaintiff or when the 26 validation began. However, it appears that the impetus was likely a September 1992 debriefing report

which identified plaintiff as a Northern Structure member. This report was placed in plaintiff’s central 27 file (“C-file”), and likely came to the attention of Officer Smith, as the evidence shows that Smith

started investigating plaintiff as early as December 1992; Officer Gordon, a correctional officer at SCC, 28 testified that Officer Smith called him in December 1992 and asked him to search plaintiff’s locker

because Officer Smith was investigating plaintiff for gang affiliation. Thus, the Court infers that the

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1

8. CDCR regulations specified the permissible forms of validating evidence and required

2 that any validation be supported by at least three evidence items, each independent in source and

3 subject, and with any “confidential” item used having some indicia of reliability. 15 Cal. Code of Regs.

4 § 3378(c) (validation process); 3321 (use of confidential material).

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9. Plaintiff was not aware that this validation process had been initiated. No one informed

6 plaintiff that he was being investigated or met with him during this process.

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10. Officer Smith’s investigation yielded four pieces of evidence that he believed were

8 sufficient to validate plaintiff as a Northern Structure member, which are as follows:

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a. The September 25, 1992 Confidential Inmate Debriefing Report

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In 1992, a validated Northern Structure associate underwent the debriefing process with DVI

12 prison administrators.3 Officer Reyes Hernandez prepared the debriefing report, which consisted largely

13 of a long narrative of the debriefing informant’s history with the Northern Structure, and concluded with

14 a list of names that the informant identified as NS members, also called a “laundry list.”4 (Ex. 4).

15 Plaintiff is not identified in the narrative text of the report, although a different inmate by the name of

16 Lira (with a different prison identification number) is mentioned in the text of the report; the Lira

17 mentioned in the narrative portion of the report is not named in the laundry list. (Ex. 4). Plaintiff’s name

18 appears on the laundry list at the end, where he was identified as a Category III NS member.5 Id.

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20 validation process began around December of 1992.

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3 Debriefing is when a validated inmate formally disassociates with his prison gang by meeting

with prison officials, renouncing his membership in the gang, and identifying other gang members and 22 associates. Other than being placed on inactive status or expiration of sentence, debriefing is the only

way an inmate can be removed from segregation based on gang affiliation. 23

4 As Officer Piland explained, a “laundry list” refers to the list at the end of a debriefing report 24 in which a debriefing inmate simply names inmates that are associated with the gang and provides their

rank. The debriefing officer asks the inmate for this list at the end of the debrief. The list is meant to 25 verify the names that the inmate has stated in his narrative report and clearly identifies each inmate so

that prison officials can easily place the reports in each inmate’s C-file without reading the entire 26 narrative portion.

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5 Category III is a position of leadership within the Northern Structure. According to

defendant’s prison gang expert, Robert Marquez, a Category III member is the equivalent of a 28 “commanding officer” in the Army. Marquez described Category III members as “holding leadership

positions,” being “responsible for overseeing given areas,” and communicating directly with Nuestra

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Officer Hernandez was satisfied that the debriefing inmate was telling the truth. The report was

2 considered reliable by CDCR standards because the informant incriminated himself, the veracity of

3 other information provided by the informant was confirmed through independent investigation, and part

4 of the information provided had also been supplied by independent sources. The debriefing report was

5 placed in the C-file of every inmate identified therein. Plaintiff was completely unaware of this

6 debriefing report, and did not know that it had been placed in his C-file.

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b. The Drawing

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In December of 1992, Officer Smith asked Officer Gordon to search plaintiff’s locker at SCC

10 for any gang-related material. When searching plaintiff’s locker, Officer Gordon found a drawing that

11 he thought might contain gang symbols, and he brought it to Officer Smith. Officer Smith reviewed the

12 drawing and determined that it contained three Northern Structure symbols: the number “14,” the

13 “Northern Star,” and a Huelga bird. Defendant also contends that plaintiff’s nickname, “Chino,”

14 appears in the drawing. Plaintiff knew that the drawing had been confiscated. He did not deny that it

15 was his, and in fact asked for it back from Officer Gordon. Plaintiff did not know, however, that the

16 drawing was being used to validate him as a gang member.

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c. The April 24, 1992 Merced County Jail Incident Report

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In the course of his investigation, Officer Smith contacted Officer Romero at the Merced County

20 Jail, where plaintiff had been housed at various times in the 1980s and 1990s. Officer Smith asked

21 Officer Romero whether the Merced County Jail had any record of plaintiff’s involvement in a gang.

22 Officer Romero responded that there had been an incident involving plaintiff on April 24, 1992, and that

23 he would forward Smith a copy of the report. Romero consulted the handwritten report that he had 24 prepared the day of the incident and determined that it was “not presentable” to send to CDC, so he 25 prepared a longer typed report and sent the typed version to Smith. (Ex. 1, 6). Romero prepared the 26 typed report on April 13, 1993. 27

28 Familia members. (1783:21-1784:5).

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United States District Court For the Northern District of California

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Both reports concern an incident at the Merced County Jail yard in which Northern Hispanic and

2 Southern Hispanic inmates were inadvertently released into the yard at the same time. The Northern

3 Hispanic inmates began questioning the Southern Hispanic inmates, and Romero sensed that a fight

4 might break out. Romero called in other officers, and the incident was broken up before any violence

5 ensued. The original handwritten report contained only a very short account of this incident, and listed

6 inmates Juan Morales, a validated Northern Structure gang member, and Daniel Hernandez as being the

7 main instigators. Plaintiff was not mentioned in the narrative text of the handwritten report, but was

8 listed as one of the inmates involved.6 (Ex. 1).

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The typed report that Smith received and eventually used as evidence in plaintiff’s prison gang

10 validation contained a more detailed and somewhat different account of the incident. The typed report

11 states that plaintiff and Juan Morales confronted and questioned two Southern Hispanic gang members.

12 The report states that as officers broke up the group, plaintiff commented to Romero “[c]ome on

13 Romero. All we wanted to do was play with them a little while. You know when we go to the ‘pen’

14 they (meaning Sureños) rush us from the gate.” (Ex. 6). Smith interpreted this statement as an

15 admission by plaintiff of his gang affiliation.

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The typed report includes a block of type listing the six Norteño inmates involved, including

17 their imputed gang affiliations. Romero used a slash mark as punctuation to separate each listed inmate

18 from the next:

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AS 3 BLOCK CAME INTO THE YARD THE FOLLOWING GANG

MEMBERS GROUPED TOGETHER AND STARTED TO SCAN THE YARD. THE

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INMATES WERE, LIRA, ERNESTO, GEORGE, AKA “CHINO” DOB 010664 CDC

#C60918, NORTENO, M 14 ASSOCIATE/NORTHERN STRUCTURE MEMBER

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AND NF ASSOCIATE, MORALES, JUAN AKA “PULGA” DOB 021866 CDC #

D02845 . . . . 22

(Ex. 6) (emphasis added). Thus, the reference to “Northern Structure Member” applied to inmate Juan 23

Morales, not plaintiff. At trial, Romero testified that “there should have been more of a space or a gap 24

where Lira and Morales’ name[s] kind of run together” (416:3-4). When Smith received the typed 25

report, he did not realize that the words “Northern Structure Member” were describing the next inmate 26

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6 Plaintiff was identified in the handwritten report as a “Norte 14, VPX Planada.” Officer 28 Romero testified that “Norte 14” is slang for a Northern Hispanic street gang member. Officer Romero
also testified that he had no reason to believe that plaintiff was a prison gang member or associate.

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1 listed, Juan Morales, and not plaintiff. On May 10, 1993, Officer Smith prepared a “128-B chrono” for

2 Romero’s April 13, 1993 typed report: the 128-B chrono mistakenly stated that plaintiff was identified

3 as being an associate of the Northern Structure prison gang:

4

On April 13, 1993, I received information from Officer Romero of the Merced County

Sheriff’s Department, who identifies inmate Lira H-36693 AKA “Chino” “to be an

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associate of the NORTHERN STRUCTURE Prison Gang, and a member of the Norte

14.

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(Ex. 10). Officer Romero’s April 13, 1993 report, and Smith’s accompanying 128-B chrono, were

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placed in plaintiff’s C-file.

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9 d. 1993 confidential memorandum by Officer Gordon
10 Officer Gordon prepared a confidential memorandum. This memorandum was later rejected
11 by the Special Services Unit (“SSU”), which reviews validation packages, because it did not meet
12 departmental criteria for gang validation, and therefore, there was very little description of this
13 memorandum at trial.
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15 D. 1993 Initial Validation Process
16 11. Having compiled the foregoing “source items,” Officer Smith put together plaintiff’s
17 formal validation package. The package consisted of the September 1992 confidential inmate debriefing
18 report, the drawing, Romero’s typed Merced County Jail incident report, and the 1993 confidential
19 memorandum authored by Officer Gordon. Each piece of evidence was accompanied by an individual
20 chrono. (Ex. 11).
21 12. Once Officer Smith put together plaintiff’s formal validation package, he gave it to his
22 superior, Institutional Gang Investigator Dirk Covello, for approval. At trial, IGI Covello did not
23 explain what standard applied to his review of the package that Smith put together: “The criteria that
24 I used is the report authored by Milo Smith [Ex. 8 and 9], the report authored by Romero [Ex. 6], the
25 report authored by Officer Gordon [Ex. 273, not relied on by SSU and deemed “unreliable”] . . . [and]
26 the confidential [report] on a debriefing [Ex. 4].” (153:22-154:24).
27 13. On or about May 11, 1993, IGI Covello approved the validation package and
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1 memorialized that approval in a 128-B chrono that same day. (Ex. 11). IGI Covello testified that he

2 did not recall making any independent investigation of any of the pieces of evidence in the validation

3 package; he did not personally investigate whether plaintiff made the drawing, nor did he ask Smith to

4 do so; and he was not aware that there was an earlier, handwritten version of Romero’s Merced County

5 Jail report. IGI Covello also testified that he agreed that it was important to confront an inmate under

6 investigation for gang validation with the fact of the investigation and with the validation evidence.

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14. On May 18, 1993, IGI Covello prepared a cover letter and a gang-validation worksheet,

8 and then transmitted the validation package to SSU in Sacramento, California for review. SSU performs

9 a “quality control” and checks to see if the source items comply with CDCR requirements, but does not

10 investigate the truth or falsity of the items. The IGI is charged with that responsibility.

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15. On June 22, 1993, SSU received plaintiff’s validation package and SSU analyst Judy

12 Olson reviewed the package for compliance with departmental regulations. Olson testified at trial that

13 she has no memory of plaintiff’s validation specifically. However, she testified that it was not her job

14 to make an independent investigation into the meaning or reliability of the evidence she received in the

15 validation package. Olson testified that she “took the documents [she] received in the validation

16 package . . . at face value.” 70:1-6. Rather, she just made sure that the evidence conformed to CDRC

17 departmental regulations. Olson concluded that three of the items of evidence met departmental criteria

18 for gang validation, but that the 1993 confidential memorandum authored by Officer Gordon did not.

19 On July 2, 1993, Olson authored a 128-B chrono officially validating plaintiff as an associate of the

20 Northern Structure prison gang. At that time, plaintiff was on parole.

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16. Defense witness CDC Special Agent Michael Ruff, who has extensive training and

22 experience in the validation process, testified that the validation process generally works as follows:

23 once the gang investigator has prepared the validation package, someone in the institution would prepare 24 a ?114-D lockup order” to remove the inmate from the general population. The inmate would receive 25 the lockup order, as well as a copy of all non-confidential documents in support of the validation, as well 26 as a 1030 confidential disclosure form that informs the inmate of the confidential material used for 27 validation. “The 1030 should provide him with enough information that he knows what the source is, 28 but doesn’t reveal the source of the person providing the information, so as to protect the – the

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1 informant.” 1353:22-25. Once the information is provided to the inmate, the validation package is sent

2 to Sacramento for review. Ruff testified that even if an inmate is on parole, he should be given copies

3 of all non-confidential documents used as validation evidence, as well as the 1030 disclosure form. Ruff

4 also testified that if an inmate is on parole, the 128-B chrono should go to the parole officer.7

5

17. None of these normal procedures were followed in plaintiff’s validation. Throughout

6 the entire investigation and validation process, plaintiff was totally unaware that he was being

7 investigated as a gang member. Contrary to the normal procedures, plaintiff was not given copies of

8 the documents used to validate him, nor was he provided with the general 128-B validation chrono (or

9 the 1030 disclosure form). On May 11, 1993, the date IGI Covello prepared the 128-B chrono

10 documenting plaintiff’s validation, plaintiff was still at SSC (he paroled three days later on May 14,

11 1993). When plaintiff was officially validated on July 2, 1993, he was on parole. Plaintiff remained

12 unaware of his July 1993 validation for another two-and-a-half years.

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14 E. 1995-1996: Plaintiff’s Return to Prison and Administrative Segregation

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18. On February 25, 2005, plaintiff was arrested and charged with possession and

16 transportation of methamphetamine. Plaintiff’s parole was revoked, and on October 31, 1995, he

17 returned to DVI to await trial. In March of 1996, a jury convicted plaintiff of possession of

18 methamphetamine, and he received an eleven year sentence.

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19. During the time plaintiff was incarcerated at DVI while he awaited trial and conviction,

20 DVI’s Investigation Services Unit (“ISU”) reported that CDCR’s records indicated that plaintiff was

21 a validated Northern Structure associate. Pursuant to this report, a 114-D lock-up order was issued on

22 December 28, 1995, placing plaintiff in administrative segregation at DVI.8 Plaintiff was given a copy

23

24

7 David Tristan, a defense expert, provided slightly different testimony about CDCR procedures.

Mr. Tristan testified that CDC officials would not be required to provide an inmate with the 1030

25 confidential disclosure form until the point that the inmate was advised that confidential information was used as a basis for transfer to the SHU.

26 8 Administrative segregation (“Ad-Seg”) is a housing unit within every general-inmate

27 population prison that is designed to segregate a prisoner from the rest of the inmate population on a temporary basis. For example, a prisoner can be placed in Ad-Seg while a disciplinary violation is being

28 adjudicated or an incident or threat is investigated. Security Housing Unit (“SHU”), in contrast, is designed to segregate a prisoner on a long-term basis. Because validated prison gang members pose a

threat to institutional safety, they are placed in SHU confinement on a long-term basis. Until 2003, there

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1 of the lock-up order, which informed him that he was being placed in Ad-Seg because he had been

2 validated as a Northern Structure associate. (Ex. 14). This was the first time plaintiff learned of his

3 gang validation.

4

20. Plaintiff protested the lock-up order, and stated that some mistake must have occurred,

5 that he knew nothing about the gang validation, and that he had never been associated with the Northern

6 Structure prison gang. When plaintiff protested the lock-up order, prison officials directed plaintiff to

7 sign a portion of the order waiving his right to an Ad-Seg placement hearing and assured him that the

8 DVI Institutional Classification Committee (“ICC”) would meet soon to resolve the matter. The 114-D

9 form that plaintiff was instructed to sign also indicated that he was “entitled to a written decision

10 including references to the evidence relied upon and the reasons for such confinement” and that “[p]rior

11 to initial placement or within 48 hours of such placement, an inmate is entitled to written notice of the

12 reasons for placement in sufficient detail to enable the inmate to prepare a response or defense.” (Ex.

13 14). The 114-D lock-up order did not contain any reference to the evidence used to validate plaintiff,

14 and instead simply stated that plaintiff was a “validated Northern Structure associate.” Id.

15

21. Being placed in Ad-seg at DVI (also known as “the hole”), meant being transferred to

16 an isolated, 8' x 6' cell. Plaintiff testified that the cells were infested with mice and cockroaches, and

17 that the water was a “brackish brown.” (540:12-541:12).

18

22. Special Agent Ruff testified that upon placement in Ad-seg, an inmate should be

19 provided with copies of all non-confidential documents used to validate him, as well as a 1030

20 confidential disclosure form for any confidential sources. Other than the lock-up order, however,

21 plaintiff was not provided with any documentation when he was transferred to Ad-Seg.

22

23 F. ICC Hearings at DVI while awaiting plaintiff’s C-file

24

23. On January 4, 1996, plaintiff appeared for the first time before DVI’s Institutional

25 Classification Committee (“ICC”). The ICC, which is chaired by the warden or the warden’s designee,

26 consists of high-ranking prison officials from the prison. The ICC hears inmate cases concerning

27 placement or retention in administrative segregation, SHU recommendations, and placement or retention

28

were only two prisons that had SHUs, Pelican Bay and Corcoran State Prisons.

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1 in SHU confinement, among other things.

2

24. At the January 4, 1996 ICC hearing, plaintiff denied involvement with the Northern

3 Structure and asked to see the evidence relied upon for his validation. The Committee informed plaintiff

4 that his C-file had not yet arrived, and that they could not review plaintiff’s gang status until they

5 received the file. The Committee elected to retain plaintiff in administrative segregation pending receipt

6 and review of his C-file.

7

25. Over the next six months, until plaintiff’s C-file arrived at DVI, prison officials

8 conducted several similar ICC proceedings regarding plaintiff’s validation status and placement in

9 administrative segregation. Plaintiff testified that these ICC hearings generally lasted about five

10 minutes. At these proceedings, officials informed plaintiff that they were still waiting for his C-file and

11 could not consider his status until it arrived.9 The ICC told plaintiff that as soon as his C-file arrived,

12 they would provide him with the documentation supporting his validation and would address the issues

13 he was raising. The ICC also informed plaintiff that he could appeal the ICC’s decisions if he wished,

14 and that debriefing – i.e, renouncing gang membership – was the other method of getting out of Ad-Seg.

15 At trial, prison officials could not provide any explanation for why it took at least six months for

16 plaintiff’s C-file to arrive at DVI.

17

26. On March 7, 1996, plaintiff appeared before the ICC and was told that CDCR records

18 showed him as validated. The ICC elected to retain plaintiff in Ad-Seg, and made a request to a

19 Classification Staff Representative (“CSR”) to extend plaintiff’s retention in Ad-Seg for 90 days.10 The

20 CSR approved this request on April 3, 1996.

21

27. Also on March 7, 1996, plaintiff complained to Counselor Chavez about not having seen

22 evidence in support of his gang validation. Chavez gave plaintiff an oral description of the source items, 23 and this was the first time plaintiff learned that a report from Officer Romero of the Merced County Jail 24 was being used as part of the basis for his validation. However, because the prison did not yet have 25

26 9 Several of the hearings were held in absentia because plaintiff was at court on the pending
27 drug charges.

28

10 A CSR is an individual who travels from prison to prison, reviewing ICC actions and

recommendations. The ICC cannot retain an inmate in Ad-Seg beyond thirty days unless the committee

receives approval from a CSR.

13

United States District Court For the Northern District of California

1 plaintiff’s C-file, Chavez could not provide plaintiff with actual copies of the source items.11

2

28. On May 31, 1996, plaintiff was paroled to Merced County Jail because of court

3 appearances. While he was at Merced County Jail, plaintiff spoke to Officer Romero and informed him

4 that a report that Romero had written was being used to validate plaintiff as a gang member and to keep

5 him in Ad-Seg at DVI. Plaintiff testified that he asked Romero to write a letter explaining that Merced

6 County Jail did not have any information showing that plaintiff was a gang member. On June 20, 2006,

7 plaintiff returned to DVI from Merced County.

8

29. Sometime in June 1996, plaintiff’s C-file arrived at DVI. Plaintiff was shown documents

9 from his file relating to two of the validating evidence items – the drawing and Romero’s yard incident

10 report. Plaintiff was not shown the evidence items themselves, but instead he was allowed to read

11 summary descriptions of them in the form of 128-B chronos.

12

30. On June 27, 1996, plaintiff again appeared before the ICC. Plaintiff tried to explain that

13 the validating evidence from Officer Romero was wrong, and he told the ICC that he had spoken to

14 Romero, who had affirmed that plaintiff was not identified as affiliated with any prison gang.12 The ICC

15 however, informed plaintiff that although his C-file was now at DVI, the file had not been reviewed by

16 the panel for “prison gang membership,” and that plaintiff’s continued confinement in Ad-Seg was

17 necessary “pending confirm[ation].” (Ex. 23). The ICC informed plaintiff of his right to appeal the

18 committee’s action, which he did on July 23, 1996.

19

31. On July 25, 1996, plaintiff appeared again before the ICC. This time, the ICC informed

20 plaintiff that it had reviewed his C-file and had transmitted a request to SSU to prepare a re-

21 documentation of his prison gang validation by means of an updated CDCR form 128B-2 chrono. The

22 ICC did not provide any further information as to the reason for the “re-documentation.” The ICC

23 informed plaintiff that once the updated chrono arrived, processing would be complete, his case would

24

25

11 Defendant claims that plaintiff received a copy of his 128-B chrono during an inmate appeal

in March of 1996 from Counselor Chavez, and indeed the inmate appeal form, dated March 7, 1996,

26 states that Chavez provided plaintiff with copies of his validating chronos. (Ex. 103). Plaintiff, however, maintains that at that time Counselor Chavez merely described the chronos to him, and

27 mentioned that the Merced County incident report had been used as one of the source items in plaintiff’s validation.

28 12 There was some testimony that Officer Romero agreed to write a letter to CDCR in 1996, but

the evidence on this point was equivocal and unclear.

14

United States District Court For the Northern District of California

1 be referred to a CSR for endorsement, and he would be transferred to Pelican Bay State Prison SHU to

2 serve an indeterminate term for being a validated Northern Structure prison gang associate. ICC elected

3 to retain plaintiff in Ad-Seg and referred the matter to a CSR for endorsement of plaintiff’s retention

4 in Ad-Seg. The CSR approved the request on August 1, 1996.

5

32. Plaintiff filed inmate 602 appeals on July 23 and 29, 1996. These appeals stated that

6 plaintiff had never been informed of any gang validation process or of the actual validation prior to

7 being placed in Ad-Seg in December 1995. Plaintiff also sought to raise objections to the items of

8 evidence used to validate him as a prison gang associate, although he had still not seen any of this

9 evidence. (Ex. 29). Plaintiff also noted again that any report from Officer Romero at Merced County

10 Jail could not be evidence of gang affiliation because Officer Romero knew plaintiff was not affiliated,

11 and that he believed Romero had sent a letter to that effect to CDCR. Plaintiff requested that he be

12 released from Ad-Seg, and that all of the gang validation evidence be removed from his C-file.

13

33. On July 30, 1996, Counselor Mann informed plaintiff that the prison was still waiting

14 for the updated 128B-2 chrono and the supporting gang validation documentation from SSU. Mann

15 explained to plaintiff that he would receive a confidential-disclosure form (CDC 1030) when the prison

16 received these documents.

17

34. On August 22, 1996, plaintiff again appeared before the ICC. The Committee noted that

18 the updated 128-B-2 chrono was now in plaintiff’s C-file, but that the documents used to validate him

19 were not. The committee elected to retain plaintiff in Ad-Seg pending receipt of these documents.

20

35. On August 23, 1996, Correctional Counselor Darlene Best interviewed plaintiff regarding

21 his 602 appeals. Plaintiff told Best that any report from Officer Romero should not be used as evidence

22 of gang association, and he once again requested access to all of the evidence used to support the 23 validation. Plaintiff testified that Best told him that she would undertake an investigation of the issues 24 plaintiff raised; however, Best denied his appeal at the first level that day. In her written statement of 25 denial, Best noted that SSU had been requested to re-document plaintiff’s validation because the initial 26 July 1993 validation did not meet current CDCR regulations.13 The appeal denial stated that “Until your 27

28 13 The chrono was deficient in that it did not specifically state which items of evidence had and
had not been been relied on in the validation process.

15

United States District Court For the Northern District of California

1 gang status is fully investigated and a determination is made by SSU, you are considered a threat to the

2 safety and security of the institution.” (Ex. 24).

3

4 G. Plaintiff’s Gang Re-validation in September 1996

5

36. On September 4, 1996, SSU agent Olson “re-validated” plaintiff as a Northern Structure

6 prison gang associate by issuing a new 128-B-2 chrono. (Ex. 34). Although never explained to

7 plaintiff, the only validation requirement addressed in the re-validation process concerned the manner

8 in which the original 128-B validation chrono form had been completed. The original form failed to

9 specifically list or identify which of the four evidence items submitted had been relied on by SSU in

10 1993 and which, if any, had not.14 Olson did not reinvestigate any of the three source items used to re-

11 validate plaintiff as a Northern Structure prison gang associate.

12

37. On September 27, 1996, DVI Warden Alameida denied plaintiff’s appeal at the second

13 level, noting that indeterminate placement in Ad-Seg was proper based on the updated 128-B-2 chrono.

14 At trial, Alameida testified that in evaluating such inmate appeals, he did not reinvestigate validations

15 because that was not his responsibility. Rather, he assumed that the IGI had done a thorough and proper

16 job, as evidenced by the fact that the 128-B chrono had been authored. Alameida’s practice was to deny

17 appeals unless something seemed awry with a particular case. If something needed to be reinvestigated,

18 he routed that through an IGI because he was not a gang specialist.

19

38. On January 24, 1997, the Inmate Appeals Branch, CDCR’s highest level of review,

20 denied plaintiff’s appeal, stating that the “documentation reveals that on July 2, 1996,15 an Institutional

21 Gang Investigator collected and documented information reflecting [plaintiff’s] involvement in an

22 inmate prison gang. That documentation was reviewed by the [ICC]. On September 4, 1996, the 23 documentation was reviewed by a SSU Special Agent who confirmed and validated [plaintiff] to be an 24 Associate of the NS Prison Gang. [Plaintiff’s] case factors were reviewed by a Classification Staff 25

26 14 This documentation requirement followed from Madrid v. Gomez, 889 F. Supp. 1146, 1279
27 (N.D. Cal. 1995), where the court discussed the risk of mistaken re-validation based on previously rejected evidence items under the prior 128-B chrono format.
28 15 It appears that this is a typographical error, as IGI Smith prepared the original validation
package on July 2, 1993.

16

United States District Court For the Northern District of California

1 Representative [CSR], who subsequently endorsed [Plaintiff] to SHU as his conduct endangered the

2 safety of others and the security of the institution.” (Ex. 29).

3

39. At no point while he was housed in administrative segregation at DVI was plaintiff given

4 a meaningful opportunity to present his views; to the contrary, the ICC spent six months telling plaintiff

5 they could not consider his gang status until his C-file arrived, and then told plaintiff that once his

6 chrono arrived he would be transferred to Pelican Bay SHU. Nor did the ICC address the fact that

7 plaintiff never had the opportunity to present his views to the IGI (or, indeed, to anyone) before he was

8 formally validated as a gang member.

9

40. Between December 28, 1995 and September 23, 1996, plaintiff spent approximately four

10 months in DVI Ad-Seg as a result of the gang validation.

11

41. On September 19, 1996, plaintiff appeared before the ICC at DVI for the last time. ICC

12 imposed an indefinite SHU term based on plaintiff’s gang validation, and directed his transfer to Pelican

13 Bay, one of two facilities that had a SHU. A CSR endorsed plaintiff’s placement in Pelican Bay SHU

14 on September 20, 1996. On September 24, 1996, plaintiff arrived at Pelican Bay State Prison to serve

15 the remainder of his prison sentence in the SHU.

16

17 H. Reviews of Validation while at Pelican Bay SHU

18

42. Following his transfer to Pelican Bay SHU, plaintiff continued to appear before various

19 panels of the ICC and the Unit Classification Committee (“UCC”) for periodic reviews of his

20 confinement status. These reviews occurred on the following dates: September 27, 1996, February 20,

21 1997, August 5, 1997, March 31, 1998, May 14, 1998, September 24, 1998, December 8, 1998, April

22 6, 1999, August 10, 1999, November 17, 1999, May 31, 2000, November 8, 2000, May 15, 2001,

23 October 17, 2001, April 9, 2002, October 12, 2002, April 8, 2003, September 10, 2003, and March 30,

24 2004. Plaintiff’s placement in the SHU was re-endorsed by a CSR on the following dates: March 26,

25 1997, January 26, 1999, February 1, 2000, December 13, 2000, December 13, 2001, November 11,

26 2002, and October 27, 2003.

27

43. On September 27, 1996, plaintiff appeared for the first time before the ICC at Pelican

28 Bay. The ICC explained that plaintiff was being housed in the SHU because he was a validated gang

17

United States District Court For the Northern District of California

1 member. Plaintiff denied that he was a gang member, and asked for documentation supporting his

2 validation. The ICC told plaintiff he could see the documentation through an Olsen review16 of his C-

3 file. Plaintiff asked for an opportunity to refute his validation, but the Committee said they needed his

4 C-file, and that he would have to take it up with his counselor. The ICC informed plaintiff that if he

5 wanted to get out of the SHU, he could debrief. (Ex. 40).

6

44. On October 18, 1996, plaintiff was provided with an Olsen review of his C-file. This was

7 the first time plaintiff saw any of the actual documents supporting his gang validation. During this

8 review, plaintiff was provided with copies of his 128-B validating chrono, the drawing purportedly

9 containing gang symbols, and the Merced County incident report. He was also provided with a 1030

10 disclosure form regarding the September 1992 debriefing report. The 1030 form stated that “[d]uring

11 a debriefing, an inmate identified you as a Northern Structure.” This was the first time plaintiff learned

12 of the existence of the debriefing report.17 (Ex. 41).

13

45. In early March 1998, plaintiff was transferred from Pelican Bay SHU to Merced County

14 Jail for a re-sentencing hearing on his conviction. While there, plaintiff spoke again with Officer

15 Romero regarding the April 1992 yard incident and Officer Romero’s report that had been relied on by

16 CDCR as one of the validating evidence items.

17

46. In response, Officer Romero offered to write a letter to CDCR, which he did and gave

18 to plaintiff at the Merced County Jail. The letter is dated March 8, 1998, written on Merced County

19 Sheriff’s Department letterhead, and addressed to “Classification” regarding “Gang Member Status of

20 Ernesto Lira.” The letter reads in full:

21

To Whomever It May Concern;

22

In checking with the Classification Department, we cannot find any gang validation on

Ernesto Lira in Merced County Jail. Lira was always housed in general population with

23

other Northern Hispanics, which is the majority of our jail. I hope this letter will clarify

any misunderstandings you might have. Thank you. 24

25

26

16 An Olsen review is a procedure that allows inmates to “review” their C-files. This process

does not allow inmates to actually look through their files. Rather, a prison official brings the file in on

27 a cart and the inmate may specifically request a document from the file.

28

17 The parties’ stipulated facts state that confidential disclosure forms “were issued” on

September 19, 1996 and October 18, 1996. At trial, plaintiff testified that he did not receive any

confidential disclosure forms until his Olsen review on October 18, 1996.

18

United States District Court For the Northern District of California

1

R. Romero, C.O. II

2 (Ex. 49).

3

47. Plaintiff testified that when he returned to Pelican Bay, he provided a copy of Officer

4 Romero’s letter to a UCC panel at a March 31, 1998 hearing. The panel refused to consider the letter,

5 and informed plaintiff that if he wanted to pursue the matter, he could file another 602 appeal. (Ex. 50).

6

7 I. Plaintiff’s April 1998 602 Appeal

8

48. On April 4, 1998, plaintiff filed another 602 inmate appeal of his gang validation and

9 segregation. This appeal raised issues about the evidence used to validate plaintiff, and attached the

10 March 8, 1998 letter written by Officer Romero stating that Merced County Jail did not have any records

11 of plaintiff’s gang affiliation. IGI Mark Piland, who handled plaintiff’s appeal at the first level,

12 reviewed plaintiff’s C-file, examined the source items, and interviewed plaintiff. IGI Piland concluded

13 that Officer Romero’s 1998 letter did not affect the use of the 1993 Merced County incident report

14 because that report showed that plaintiff was in the presence of a validated Northern Structure member

15 and “assisting in NS business by questioning Southern Mexican inmates on their tattoos and where they

16 were from.” (Ex. 52). Officer Piland found it irrelevant that Merced County Jail had no official records

17 of plaintiff’s gang status.18 On August 6, 1998 IGI Piland denied plaintiff’s appeal in its entirety at the

18 first level.

19

49. Although Piland testified that he judged each source independently, there is no evidence

20 that Piland made any independent investigation in connection with the appeal except for a telephone call

21 to Officer Romero to confirm that he had in fact authored the letter. Romero replied that he had, and

22 Piland did not ask him any further questions. Moreover, Officer Piland stated in his appeal response

23 that his reason for denying the appeal is that the validation items “clearly meet [CDCR departmental]

24

25

18 On July 29, 1998, Piland filled out a fax cover sheet addressed to SSU (Ex. 53), and although

Piland wrote “C + 10” on the cover sheet, he testified that he did not remember what 10 pages were sent

26 with the cover sheet. The message on the cover sheet – which Piland testified was not in his

handwriting – states “Re Lira, H-36693: One of the sources used for validation has been rescinded by

27 the author . . . a new source has been sent with this Fax, see debrief page 4 (yellow tag) . . . note this

inmate has a 602 going.” (Ex. 53). What appears to be a reply message on the fax cover sheet reads:

28 “8-3-98 Old source still usable to show assoc[iation]. . . didn’t redo 128B 2 based on info. S/SW.” Id.

Although Piland denied knowledge of this message, he recognized the handwriting as that of SSU

Special Agent-in-charge Steve Wohlwend.

19

United States District Court For the Northern District of California

1 regulations.” (Ex. 52). Officer Piland reviewed each document to see if it met departmental criteria,

2 but he did not investigate the veracity of any of the documents.19 On September 21, 1998 plaintiff’s

3 appeal was denied at the Warden’s level.

4

5 J. April 2000 Inactive Status Review

6

50. On November 17, 1999 the ICC reviewed plaintiff’s case for inactive gang status. The

7 committee noted that plaintiff’s validation might be in question because the 1993 Merced County

8 incident report “appears to possibly be in conflict” with the March 3, 1998 letter sent by Officer

9 Romero. (Ex. 61). The ICC recommended that SSU/Law Enforcement and Investigations (LEIU)

10 “evaluate this information when S is being reviewed for inactive status,” but also noted in its

11 recommendation that plaintiff “contested being evaluated as an inactive prison gang associate stating,

12 ‘How can I be a non-active gang associate when I am not part of this gang?’” Id.

13

51. In March of 2000, Assistant IGI Brian Fielder was assigned plaintiff’s case as part of his

14 work for the Inactive Gang Task Force at Pelican Bay SHU. Fielder’s review consisted of looking at

15 plaintiff’s C-file to see if there was any evidence of gang activity within the last six years.20 Fielder also

16 interviewed plaintiff for approximately 30 minutes to one hour. During this interview, Fielder explained

17 the review process, and plaintiff stated that he was not a gang member. Fielder also conducted a cell

18 search, ran plaintiff’s name through the Cal-Gang database and the Western States Information Network

19 database, and contacted Merced County Jail authorities, the Merced County Parole Office, and SSU

20 Officer Olson. None of these efforts turned up any evidence of gang activity or affiliation.

21

52. However, during his investigation, Fielder discovered another item of evidence that

22 purportedly supported plaintiff’s gang validation. This evidence consisted of a confidential inmate

23

24

19 This is consistent with former Warden McGrath’s testimony. McGrath testified that even at

the first level, these appeals are “really a procedural review.” Even though officers had to look at the

25 evidence, they were primarily trying to determine whether “all the components are there as they should be.” (708:9-20)

26 20 This inactive review was the result of the settlement in Castillo v. Alameida, No. C 94-2847

27 (N.D. Cal. 1994). Prior to that settlement, the only way for an inmate to get out of the SHU was to debrief or to complete his sentence. After Castillo, IGIs reviewed inmates for inactive status once every

28 six years. If no record of gang activity was found, the IGI would validate the inmate as inactive and refer him to the Director’s Review Board for determination of whether he should be released from the

SHU.

20

United States District Court For the Northern District of California

1 debriefing report dated April 1, 1998, which described plaintiff attacking his cell-mate at the direction

2 of another non-validated Northern Structure affiliate, and recounted other gang related activity by

3 plaintiff, such as plaintiff teaching the Northern Structure “bonds” to other inmates and mailing a

4 threatening letter to the debriefing inmate’s mother. Fielder recommended that plaintiff be retained as

5 an active gang member based on the 1998 confidential debriefing report. (Ex. 63). Fielder testified that

6 he did not reevaluate or reassess the reliability of the source items used for plaintiff’s original validation

7 because that was not part of his job. Nor did Fielder investigate the truth of allegations in the April 1,

8 1998 debriefing report. Fielder’s goal in conducting inactive review of plaintiff was not to conduct an

9 independent review of plaintiff’s validation. Rather, it was to see if there was evidence of any gang

10 activity in the last six years. Officer Fielder informed plaintiff of his review and recommendation, and

11 on May 25, 2000, gave him a 1030 disclosure form for the April 1, 1998 confidential memorandum.

12 This was the first time plaintiff was made aware of the April 1, 1998 debriefing report.

13

53. In November 2001, a Northern Structure affiliate debriefed; the confidential debriefing

14 report mentions plaintiff’s name in the narrative and the “laundry list.” (Ex. 70). The narrative

15 identifies plaintiff as a Norteño, and states that the debriefing inmate was ordered to assault plaintiff

16 “due to Lira assaulting a NF member in the past.” Id. The narrative does not identify plaintiff as a

17 member of NS. In the “laundry list,” the “status” category next to plaintiff’s name is blank; most

18 individuals listed in the “laundry list” are identified as being a member of one of three prison gangs, and

19 are identified as “associate,” “member,” or “dropout.”

20

21 K. Plaintiff’s November 2002 602 Appeal

22

54. On November 18, 2002 plaintiff filed another 602 inmate appeal challenging his

23 validation and seeking release from the SHU. This appeal was denied at both the first and second levels. 24

25 L. Plaintiff’s Experience in the SHU

26

55. In the SHU, inmates are housed in small, barren cells, which plaintiff described as

27 “cement tombs.” The cells contained a hard cement bed with a two-inch mattress. There was no other

28 furniture and no windows. Meals were eaten alone inside the cell, served twice a day by guards on trays

21

United States District Court For the Northern District of California

1 pushed through a cell-door slot. Inmates were confined to their cells for about 22 1/2 hours every day.

2 They could leave their cells only to shower, go to a medical appointment or administrative hearing, or

3 go to the yard. Ten minute showers were allowed three times a week. The “yard” was a 9' by 48'

4 cement space, with eighteen-foot walls and no windows. The inmates were permitted to exercise, alone,

5 in the yard; plaintiff testified that he “walked in circles” in the yard.21 (927:13-929:25). Plaintiff also

6 testified that “[t]he only time you could [look] up and see some sky was when you were on the ‘yard’;

7 there were no windows in the cell or in the ‘pod.’” (936:13-18).

8

56. Inmates also were occasionally allowed access to the law library. They were allowed

9 to go about once a month, and were taken there by guards in a chain-gang fashion. Inmates were strip-

10 searched and handcuffed every time they left their cells. There were no work, education or drug

11 rehabilitation programs for inmates. Possessions were limited to six cubic feet, and books were allowed

12 but were strictly limited. Inmates could order them through a catalogue but would have to be approved

13 by prison officials and would take several months to arrive. Inmates were not allowed to use the

14 telephone, and visitation privileges were limited. Due to the remote location of Pelican Bay, it was

15 practically impossible for plaintiff’s family to visit him.

16

57. Plaintiff testified that he would wake up at 5:30 a.m. every morning and write in his

17 journal. He wrote in his journal for his children, so they would know he had not forgotten about them.

18 Plaintiff was housed near mentally ill patients in the SHU who often screamed or banged repeatedly on

19 things in their cells. Because of this noise, plaintiff had trouble sleeping. For plaintiff, the worst thing

20 about being in the SHU was that he had no communication with his family. As years passed, plaintiff

21 became less focused, and he started to worry that experiences would come back to haunt him.

22

58. Violence in the SHU was common. Former Pelican Bay Warden Joseph McGrath

23 testified that beginning in February 1997, there was “a rash of in-cell homicides” at Pelican Bay SHU.

24 In December 1997, plaintiff witnessed through the window in his cell door a deadly gang-directed

25 strangulation assault. Plaintiff testified, “[t]hat’s something I’m never going to forget . . . it’s going to

26 stay with me the rest of . . . whatever time I have left. . . . You wonder, are you next? . . . you live on

27 a tightrope, you know, there’s always the tension that your door is going to be popped open.” (952:11-

28

21 Plaintiff described the size of the yard as “three paces by sixteen paces.” (927:13-929:25).

22

United States District Court For the Northern District of California

1 25).

2

59. Plaintiff’s SHU confinement placed him in a concentrated population of prison gang

3 members and associates. In February 1999, plaintiff was the victim of a cellmate assault that had been

4 directed against him by a Northern Structure member because of plaintiff’s refusal to associate with the

5 gang. Following that incident, plaintiff was placed on permanent single-cell assignment, and for the last

6 five and a half years of his incarceration at Pelican Bay he served his time in solitary confinement.

7

60. In February 2003, prison officials notified plaintiff that his name appeared on a “bad

8 standing” or “hit list” with the Nuestra Familia and Northern Structure. (Ex. 70, 110). Individuals

9 appearing on such a list were subject to assault by NF and NS members.

10

11 M. 2004 Weapons Charge, Parole, and Return to Administrative Segregation

12

61. On January 20, 2004, Officer Morrison reported that plaintiff tampered with a shaving

13 razor by taking out the razor and replacing it with a thin foil. A strip search and cell search turned up

14 nothing, and plaintiff was placed on a 3 day “potty watch” surveillance, in which he was placed in a

15 plexiglass cubicle and allowed only water and food until he produced three stool samples for inspection;

16 no razor strip materialized. SHU staff referred the matter to the Del Norte County District Attorney,

17 who charged plaintiff with inmate possession of a deadly weapon. Plaintiff was given a plea offer of

18 eight more months in the SHU, and was advised that if the offer was rejected and plaintiff was convicted

19 at trial, he could face a sentence of 12 more years. Plaintiff rejected the plea offer, and testified that “I

20 couldn’t stand being there eight more months.” (988:2-13). Plaintiff was acquitted at a jury trial on

21 April 13, 2004.

22

62. On April 14, 2004, plaintiff paroled from the Pelican Bay SHU. Plaintiff went home to

23 live with his mother in Planada. His sister Lucy stayed at the house every other weekend and noticed 24 that her brother was very different. Once gregarious and fun, plaintiff now spent all his days alone in 25 his bedroom. Many people came to visit him but he did not want to see any of them. Instead, he 26 mumbled hello and then retreated to his bedroom. He refused to go to public places, such as out to 27 dinner, the movies, or the store. Moreover, plaintiff could not sleep; plaintiff’s sister Lucy testified that 28 she would often wake in the night to find him pacing around the house. Plaintiff’s sister Irma tried to

23

United States District Court For the Northern District of California

1 obtain sleep medication through the Merced parole office, but received no assistance.

2

63. In May of 2005 plaintiff’s parole was revoked and he returned to DVI where he was

3 placed in administrative segregation due to his gang validation. Over the next two and a half years

4 plaintiff was released on parole and reincarcerated for parole violations several times. On each

5 occasion, plaintiff was returned to administrative segregation because of his gang validation and was

6 issued a 114-D form notifying him of the reason for segregation. Plaintiff also appeared before the ICC

7 in 2005 and 2006.

8

64. Plaintiff’s disciplinary prison record for these reincarcerations continued to show no

9 history of any gang activity or gang affiliation, and in July of 2007, plaintiff was reviewed again for

10 “inactive” gang status. Following an investigation, which found that “the date of the last documented

11 gang activity was 04/01/98 and there is no evidence of recent Northern Structure gang activity,” a

12 change to inactive status was recommended and approved. (Ex. 97).

13

14 N. Plaintiff’s Mental Health

15

65. Plaintiff had numerous prison mental health screenings prior to his transfer to the SHU

16 at Pelican Bay; none of these screenings indicated that plaintiff suffered from mental illness.

17

66. Upon plaintiff’s return to DVI for a parole violation in August 2005, plaintiff was

18 examined by mental health personnel who diagnosed plaintiff with depression and post-traumatic stress

19 disorder (“PTSD”). During this psychiatric examination, plaintiff described certain traumatic events

20 that he had experienced while in the SHU which recurred to him as “flashbacks . . . nightmares . . .

21 voices calling” and he reported that “somebody was killed in front of me . . . gang was after me . . . they

22 wanted to kill me.” (770:10-25; 785:22-786:10).

23

67. Although plaintiff’s medications were adjusted periodically over the years, plaintiff

24 remained under the same anti-depressant drug regime and under the same clinical diagnosis and ongoing

25 treatment by CDCR mental health staff until his discharge in March 2008. Since then, plaintiff’s

26 treatment, including his prescribed medications, has been continued under private mental health care.

27

68. CDCR diagnoses of plaintiff’s depression and PTSD have been confirmed by more recent

28 assessments during the course of this litigation. Plaintiff’s designated expert, Paul Good, Ph.D., a

24

United States District Court For the Northern District of California

1 clinical psychologist, conducted an evaluation of plaintiff that included a medical records review, in-

2 depth interviews of plaintiff and his family and friends, and a battery of diagnostic tests. Dr. Good

3 concluded that plaintiff suffers both from PTSD and a dysthymic disorder (the intermediate level of

4 clinical depression identified in the DSM IV); Dr. Good has also concluded that plaintiff’s confinement

5 in the Pelican Bay SHU for eight years was the cause of these disorders. Dr. Good identifies two

6 traumatic “stressor” events as underlying plaintiff’s PTSD and “flashbacks”: the strangulation murder

7 that he witnessed outside his cell door in 1997, and the three day “potty watch” experience in 2004 when

8 plaintiff was suspected of tampering with the razor blade.

9

69. Dr. Good’s conclusion is also supported by the evaluation of plaintiff’s second mental

10 health expert, Craig Haney, Ph.D., a psychologist and nationally-recognized authority on the mental

11 health effects of prolonged confinement in the severely isolating conditions of SHU and other

12 “supermax” prisons. Dr. Haney’s evaluation was based on a large and developing body of

13 psychological research establishing that such conditions of confinement can cause symptoms of post-

14 traumatic stress disorder in prison inmates subjected to SHU confinement for extended periods. In Dr.

15 Haney’s opinion, this “SHU syndrome,” as it as come to be known, involves the same symptoms of

16 depression, anxiety, hyper-vigilance, auditory hallucination and agoraphobia that plaintiff has suffered

17 since his release from Pelican Bay SHU in 2004.

18

70. Both Dr. Good and Dr. Haney have opined that plaintiff’s mental state would

19 significantly benefit from a public finding by the Court that his gang validation was wrongful, and from

20 an order that CDCR expunge that gang validation from his records. It is both doctors’ opinion that a

21 judicial declaration and expungement would help plaintiff deal with his ongoing symptoms of

22 depression and PTSD. Both doctors based their opinions on their diagnostic evaluations of plaintiff, as

23 well as the literature on the beneficial psychological effect of exoneration following wrongful conviction 24 and studies on truth-and-reconciliation commissions over human rights abuses. 25

26 O. 27 28

Testimony and Expert Evaluation of CDCR’s Validating Evidence 1. The Drawing
71. CDCR regulations authorize as validating evidence gang “[t]attoos and symbols . . .

25

United States District Court For the Northern District of California

1 unique to a specific prison gang.” Cal. Code of Regs. Title 15 § 3378(c)(3)(B). (Ex. 121). The drawing

2 confiscated from plaintiff’s locker in December 1992 is supposed to include three Northern Structure

3 symbols: a “Northern Star,” the number “14,” and part of a “Huelga bird.” The chrono prepared for the

4 drawing identifies only two gang symbols hidden in the drawing: the number “14” and the “Northern

5 Star,” and does not mention the Huelga bird. (Ex. 8).

6

72. The chrono describing the search of plaintiff’s locker states that plaintiff “freely admitted

7 creating” the drawing. 22 However, the Court is persuaded by the testimony at trial that plaintiff did not

8 create the drawing, and that plaintiff only admitted to possessing the drawing, not creating it. Plaintiff

9 testified that he did not create the drawing, and indeed the “original” drawing taken from plaintiff’s

10 locker was itself a photocopy. This is consistent with inmate Freddie Leyba’s testimony, described

11 below, that he created the drawing and made copies of the drawing for various people. Former SCC

12 Officer Robert Gordon, who had confiscated the drawing from plaintiff’s locker, testified that plaintiff

13 asked for “his” drawing back. When asked whether plaintiff admitted creating the drawing, Officer

14 Gordon answered “no.” IGI Smith, who investigated plaintiff’s initial validation, did not independently

15 investigate whether plaintiff made the drawing. Inmate Freddie Leyba testified that he created the

16 drawing, and that he did not intend to put gang symbols in it. Leyba testified that he intended to put

17 the number “14” in the drawing to refer to the fourteenth letter of the alphabet, “N,” for Norteños, or

18 Northern California Mexicans, not as a gang-related symbol. He testified that he did not intend the

19 headband to say “Chino” and that he was not referring to plaintiff.23

20

73. Witnesses at trial were able to identify the purported “gang symbols” in the drawing with

21 varying degrees of success. IGI Smith, who investigated plaintiff’s initial validation, was able to locate

22 the Huelga bird and the letters “h-i-n” (from Chino) in the drawing at trial, but was unable to locate the

23 Northern Star. Smith testified that in 1993 he did not know that the Huelga bird was used as the logo

24

25

22 At trial no one could explain why the chrono for the drawing was created in May of 1993, five

months after the drawing had been confiscated, although Officer Smith testified that this delay was not

26 unusual nor did it cause him to question its accuracy. Because the chrono was created five months after

the locker search, it is possible that plaintiff’s admission that the drawing was “his” became mistakenly

27 remembered as an admission that plaintiff created the drawing.

28

23 It is not clear whether Leyba knew plaintiff at the time he made the drawing, because he

worked on it periodically from time to time, and thus different parts were made at different times.

(318:10-22).

26

United States District Court For the Northern District of California

1 of the United Farm Workers.

2

74. Officer Covello was able to locate the number “14” and “what appears to be the Northern

3 Star,” but – contrary to some other CDCR witnesses – he saw this symbol on “what appears to be a

4 man’s face . . . near his eye.” (146:12-147:10; 148:19-149:2, Ex. 115). SSU Analyst Olson, who

5 validated plaintiff in 1993 and again in 1996, and who testified about her extensive training “on

6 identifying gang symbols,” could not find any gang symbols in the drawing, even when presented with

7 a 30” by 40” blowup of the drawing. (85:1-15). Olson testified that she could see a “h” “i” and “n” in

8 the headband. Finally, Special Agent Ruff saw a part of a Huelga bird on the bandana, and the numbers

9 “1” and “4” in the drawing. After being shown a highlighted version of the drawing, Ruff also saw a

10 Northern Star on the elbow of the individual in the picture who is lying on his palms.

11

75. At some point during his incarceration, plaintiff discovered that another drawing had

12 mistakenly been placed in his C-file. This drawing contains the name of the prison gang “Nuestra Raza”

13 printed prominently at the top of the drawing, and a clearly identifiable Huelga bird, and appears to have

14 come from a cell-search of inmate Juan Morales, a validated NS member. (Ex. 120). The evidence at

15 trial established that there was a handwritten notation that appears to have been made originally on the

16 back of the drawing as confiscated, but was then photocopied on a separate page as later forwarded to

17 CDCR. The notation reads: “This is a copy of a drawing that was confiscated from Morales, Juan

18 property during a cell search 16/6/91. Romero, R. 5340.” (Ex. 120). Although this drawing was

19 purportedly not used in plaintiff’s original validation, there is evidence suggesting that this drawing

20 might have been confused for the drawing confiscated from plaintiff’s locker. There is a handwritten

21 notation in the lower righthand corner of the drawing that states “See 128B dated 5-10-93”; that chrono

22 is the chrono created for the drawing by Leyba. (Ex. 120). At trial, no one from CDCR could explain 23 who made the notation, or when or why. Moreover, while it is CDCR’s position that this drawing was 24 not used to validate plaintiff, no one at CDCR could explain why a picture containing obvious gang 25 symbols and mistakenly believed to be plaintiff’s and contained in his C-file was not used to validate 26 him.24 27

28 24 Indeed, CDCR took the position at trial that the Nuestra Raza picture was plaintiff’s. (1027-
1034).

27

United States District Court For the Northern District of California

1

76. Plaintiff’s expert on California prison gangs, California prison administration, and the

2 validation process, Daniel Vasquez, testified about the value and reliability of the evidence items used

3 to validate plaintiff. Mr. Vasquez is the former warden of San Quentin State Prison, and has spent over

4 36 years in various investigative and management positions at a number of facilities throughout the

5 CDCR system, as well as county jail and federal facilities. It is Vasquez’s opinion that the “gang

6 symbols” in the drawing are either ambiguous or not gang symbols at all. Mr. Vasquez noted that the

7 number “14” represents the 14th letter of the alphabet and stands for the letter “N” or “Norte,” Spanish

8 for the North. Mr. Vasquez stated that he symbol ?14” is not used exclusively by the Northern Structure

9 or other prison gangs, or even street gangs, but is instead frequently used to refer to Norteños, or

10 Northern California Hispanics generally. Mr. Vasquez stated that the “14” symbol is commonly found

11 as graffiti in playgrounds and elsewhere in the community. Similarly, Mr. Vasquez stated that the

12 “Huelga bird” is a popular symbol widely used in Hispanic culture and by California farm workers. Mr.

13 Vasquez also could not find a “Northern Star” in the drawing. Mr. Vasquez opined that due to the

14 absence of the Northern Star, and the fact that the Huelga bird and the number “14” are symbols

15 associated with Mexican-Americans and not exclusive to the Northern Structure, the drawing was not

16 a reliable validation source.25 The Court finds Mr. Vasquez’s expert testimony credible and persuasive.

17

77. Based upon all of the evidence and testimony at trial, the Court finds that the drawing

18 does not contain a Northern Star, and that the other symbols – the “14” and the Huelga bird – are

19 obscure and of ambiguous meaning. The Court finds that the drawing is not reliable evidence of

20 plaintiff’s affiliation with the Northern Structure prison gang.

21

22

2. Reports about April 24, 1994 Merced County Jail Yard Incident

23

78. As discussed above, Officer Romero prepared two versions of the report of the April 24,

24 1992 incident. The handwritten report, written the same day as the incident, identifies two other inmates

25 – Morales and Hernandez – as the primary participants, and merely lists plaintiff as one of eight inmates

26 involved. (Ex. 1). The handwritten version does not record that plaintiff made any statements to

27

28 25 CDCR regulations authorize as validating evidence gang “[t]attoos and symbols . . . unique
to a specific prison gang.” Calif. Code of Regs. Title 15, § 3378(c)(3)(B), Ex. 121.

28

United States District Court For the Northern District of California

1 Romero during the incident. The typewritten version, prepared almost a year after the incident and in

2 response to IGI Officer Smith’s telephone request for any information about plaintiff, identifies plaintiff

3 and Morales as the two inmates “that were doing the most,” and quotes plaintiff as commenting to

4 Officer Romero as the altercation was broken up, “Come on Romero. All we wanted to do was play

5 with them a little while. You know when we go to the ‘pen’ they (meaning Surenos) rush us from the

6 gate.” (Ex. 6).

7

79. When IGI Smith was investigating plaintiff’s gang validation and received Officer

8 Romero’s typewritten April 13, 1993 report, he was not aware of the handwritten version. At trial,

9 Smith testified that he had not seen the handwritten report until “just recently,” and that because the

10 incident in the typed report is “described totally different” than the handwritten report, Smith wondered

11 if the two reports described “two separate incidents.” (262:22-263:11). Despite remarking on the

12 differences between the two reports, Smith also testified that if, in 1993, he had seen the

13 contemporaneous handwritten report, it would not have caused him to question the accuracy or

14 reliability of the typed version prepared a year later. Smith also testified that he had been trained to do

15 further investigation of any item of potentially validating evidence that might have implausibilities or

16 other issues about its reliability.

17

80. Mr. Vasquez testified that it was his expert opinion that even the typed Romero report

18 was not a reliable indicator of gang activity sufficient to be part of a validation package because “there

19 was really no incident that took place . . . it was just some bad looks maybe being given . . . and there

20 was really no confrontation.” (1053:24-1055:1). Mr. Vasquez testified that the reliability of the typed

21 report was further brought into question because it was created nearly a year after the yard incident, and

22 because of the significant differences between the original handwritten report, which did not identify

23 plaintiff as a main participant in the incident, and the typed report, which does identify plaintiff as one

24 of two main participants.

25

81. The Court finds that the typed report is not a reliable piece of evidence supporting

26 plaintiff’s gang validation. First and foremost, the Court finds it important that the author of the report,

27 Officer Romero, testified that when he prepared the reports, he did not intend to indicate that plaintiff

28 was a member of a prison gang. The Court also finds it significant that after Officer Romero learned

29

United States District Court For the Northern District of California

1 that plaintiff was validated as a gang member and housed in Ad-Seg in part due to his April 13, 1993

2 report, Officer Romero wrote a letter to inform CDCR that “we cannot find any gang validation on

3 Ernesto Lira in Merced County Jail. Lira was always housed in general population with other Northern

4 Hispanics, which is the majority of our jail. I hope this letter will clarify any misunderstandings you

5 might have.” (Ex. 49). In addition, the significant differences between the handwritten

6 contemporaneous report and the typed report, which was prepared almost a year after the incident,

7 remain unexplained.

8

9

3. The September 1992 Confidential Inmate Debriefing Report

10

82. The September 25, 1992 inmate debriefing report is the third original item of validating

11 evidence. Plaintiff’s name appears in a long “laundry list” of alleged prison-gang affiliates; plaintiff

12 is not mentioned or described anywhere in the narrative portion of the report. A different inmate named

13 Lira, however, is mentioned in the narrative portion of the report, and does not appear in the “laundry

14 list.”

15

83. This kind of “laundry list” identification is no longer used by CDCR, following the

16 Castillo settlement.

17

84. The debriefing IGI officer, Reyes Hernandez, testified that he determined that the

18 debriefing inmate responsible for the “laundry list” was a reliable source in part because he incriminated

19 himself in criminal activity. However, IGI Hernandez also testified that, consistent with CDCR practice,

20 he did not give the debriefing inmate a Miranda warning. IGI Hernandez also found the debriefing

21 inmate reliable because thirteen pieces of information provided by the inmate were corroborated. None

22 of the thirteen pieces of information related to plaintiff. All of the thirteen pieces of information were

23 corroborated by written CDCR reports of past incidents: four of the incidents involved the debriefing

24 inmate, and eleven of the thirteen incidents dated from 1981 and 1982.

25

85. In the laundry list, plaintiff is identified as being “Cat 3,” which according to defense

26 expert Robert Marquez, meant that plaintiff was the equivalent of a “commanding officer” in the

27 Northern Structure. Mr. Marquez testified that Category 3 individuals “have overall authority . . .

28 they’re responsible for the overall security of the area, and they are the ones that are directly reporting

30

United States District Court For the Northern District of California

1 to the Nuestra Familia.” (1783:15-20). Marquez testified that he found the debriefing report reliable

2 with respect to the information provided about plaintiff because DVI housing records showed that the

3 debriefing inmate and plaintiff were both housed at DVI for several months in 1992. However, Marquez

4 also acknowledged that the debriefing inmate would have been in Ad-Seg at the time, while plaintiff

5 was housed in the reception area.

6

86. Vasquez opined that the “laundry list” identification of plaintiff as gang affiliated is of

7 no reliable evidentiary value because there was no corroboration of plaintiff’s inclusion in the laundry

8 list.

9

10

4. The 1998 Confidential Inmate Debriefing Report

11

87. The fourth item of evidence that CDCR has identified as validating plaintiff’s gang status

12 is the April 1, 1998 confidential inmate debriefing report, which describes how plaintiff allegedly

13 followed the direction of a Northern Structure gang member in carrying out an assault on a new cellmate

14 while housed in Pelican Bay SHU. The 1998 report was relied on during the April 2000 “inactive

15 status” review as the basis for finding plaintiff was still an active Northern Structure associate.

16

88. The debriefing report does not name the inmate victim or provide the date or time frame

17 of the assault. During discovery in this case, CDCR produced Pelican Bay SHU cellblock activity logs

18 for October 7, 1997, which include references to plaintiff “fighting” with a newly-assigned cellmate,

19 Anthony Ramirez. (Ex. 44). CDCR records, however, suggest that there was no assault. According

20 to the form 115 Rules Violation Report, plaintiff was accused of slapping Ramirez when Ramirez was

21 moving his things into plaintiff’s cell. (Ex. 45). Plaintiff denied striking Ramirez, and after an

22 investigation and a hearing, the disciplinary charge against plaintiff was dismissed. Id. The findings

23 state that “Reports do not contain any evidence that physical contact was made by either inmate” and

24 that “Reports do not mention an argument or any sign of hostility between LIRA and RAMIREZ.” Id.

25

89. There was no evidence at trial supporting the debriefing report’s account of plaintiff

26 assaulting a cellmate.

27

28

31

United States District Court For the Northern District of California

1

CONCLUSIONS OF LAW

2 I. Mootness

3

Defendant contends that regardless of whether plaintiff was deprived of due process while he

4 was incarcerated, his claims for declaratory and injunctive relief are moot because he is no longer in

5 prison.26 Under Article III, section 2 of the Constitution, federal courts have jurisdiction of matters only

6 if they present an actual “case or controversy.” This “case-or-controversy requirement subsists through

7 all stages of federal judicial proceedings, trial and appellate. . . . The parties must continue to have a

8 personal stake in the outcome of the lawsuit.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990)

9 (internal quotations omitted). “This means that, throughout the litigation, the plaintiff ‘must have

10 suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by

11 a favorable judicial decision.’” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis, 494 U.S. at

12 477).

13

A released inmate may avoid mootness if “some concrete and continuing injury”– some

14 “collateral consequence” of his confinement – exists. Spencer, 523 U.S. at 7. Plaintiff’s claims for

15 declaratory and injunctive relief, therefore, will not be moot if plaintiff has demonstrated some

16 “collateral consequence” that continues beyond his release from confinement and is likely to be

17 remedied by a favorable judicial decision. See id. at 7. Plaintiff argues that declaratory judgment and

18 expungement are proper (and, therefore, that the case is not moot), because these remedies will mitigate

19 the danger of retaliatory gang violence, and because they will have a favorable impact on his mental

20 health.

21

The Court concludes that plaintiff’s claims are not moot because a judicial declaration and

22 expungement will mitigate plaintiff’s risk of gang reprisal. Plaintiff was placed on the NF prison gang 23 “no good” list, which as CDCR recognizes, placed him at risk of assault by gang members while he was 24 incarcerated. Indeed, plaintiff was the victim of a gang-directed assault by a cellmate. McGrath 25 testified that any inmate who is improperly validated as a gang member would be at risk of reprisal. 26

27 26 As stated earlier, prior to trial, plaintiff dismissed the individual defendants and his claim for
28 monetary damages. In addition, plaintiff’s March 2008 discharge from CDCR confinement mooted any claim for institution-wide injunctive relief. Thus, the only injunctive relief plaintiff currently seeks is expungement of the validation, and removal of any validation-related documents from his prison files.

32

United States District Court For the Northern District of California

1 There was also testimony about the communication network between prison gangs and street gangs, and

2 thus the fact that plaintiff is not currently incarcerated does not mean that he is not in danger.27

3

More importantly, the Court finds that the continued adverse impact on plaintiff’s mental health

4 is a collateral consequence of plaintiff’s gang validation and thus his claims for declaratory and

5 injunctive relief are not moot. The entry of declaratory or injunctive relief in plaintiff’s favor would be

6 inappropriate if it amounted to “nothing more than a declaration that he was wronged.” Green v.

7 Branson, 108 F.3d 1296, 1299 (10th Cir. 1997). However, plaintiff has proved that much more is at

8 stake here. Plaintiff continues to suffer serious mental health problems as a result of the deprivation of

9 due process that he allegedly suffered at the hands of defendant. Experts have testified that declaratory

10 and injunctive relief would have a significant mitigating impact on this continuing adverse impact to

11 plaintiff. Therefore, the Court finds that plaintiff has demonstrated sufficient collateral consequences

12 as a result of defendant’s actions, and that therefore the case is not moot.

13

14 II. Due Process

15

Having determined that the case is not moot, the Court will now consider the merits of plaintiff’s

16 due process claim. The Due Process Clause of the Fourteenth Amendment to the United States

17 Constitution mandates that no State may “deprive any person of life, liberty, or property without due

18 process of law.” The “touchstone of due process is protection of the individual against arbitrary action

19 of the government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974). However, the Due Process Clause

20 protects only a limited range of interests; liberty interests protected by the Fourteenth Amendment arise

21 from two sources–the Due Process Clause itself and State law. Meachum v. Fano, 427 U.S. 215, 223-27

22 (1976). The threshold inquiry in any due process case, therefore, is whether plaintiff has a protected

23 liberty interest. If so, the Court must decide what process is constitutionally due to plaintiff, and

24 whether the plaintiff was deprived of his liberty interest without due process of law. See Zimmerlee v.

25 Keeney, 831 F.2d 183, 186 (9th Cir. 1987).

26

27

27 Indeed, the Court notes that CDCR has consistently taken the position, in order to justify

extreme confidentiality restrictions in discovery and at trial, that prison gang retaliatory violence is

28 pervasive and not confined to the prison walls. Specifically, CDCR strenuously argued that confidential

informant identities – even from confidential information dating back 10 and 17 years – must be kept

confidential in order to prevent retaliation against the informants or their families.

33

United States District Court For the Northern District of California

1

A. Protected Liberty Interest

2

Although the parties do not focus on this aspect of the due process analysis, the Court finds as

3 a threshold matter that plaintiff had a protected liberty interest in remaining free from administrative

4 segregation. Changes to an inmate’s confinement conditions may amount to a deprivation of a

5 constitutionally protected liberty interest, provided that the liberty interest in question is one of real

6 substance. Sandin v. Conner, 515 U.S. 472, 477-87 (1995). The relevant inquiry under Sandin is thus

7 whether administrative segregation at DVI and Pelican Bay’s SHU “impose[d] atypical and significant

8 hardship on the inmate in relation to the ordinary incidents of prison life.” Wilkinson, 545 U.S. at 223

9 (quoting Sandin, 515 U.S. at 484).

10

In Wilkinson, the Supreme Court held that indefinite retention in an Ohio prison’s “supermax”

11 facility, where inmates are generally not eligible for parole, imposes an “atypical and significant

12 hardship within the correctional context.” Wilkinson, 545 U.S. at 223-25. The Wilkinson court

13 attributed significant weight to the facts that inmates were not eligible for parole, and that “[u]nlike the

14 30-day placement in Sandin, placement at [Ohio’s supermax facility] is indefinite.” Wilkinson, 545 U.S.

15 at 224. Administrative segregation for gang affiliates Pelican Bay’s SHU is similar. It is undisputed

16 that the SHU is designed to segregate a prisoner on a long-term basis, and here plaintiff’s placement in

17 SHU was indefinite. As the Wilkinson court noted, “[w]hile any of these conditions standing alone

18 might not be sufficient to create a liberty interest, taken together they impose an atypical and significant

19 hardship within the correctional context. It follows that [plaintiff has] a liberty interest in avoiding

20 assignment to [the SHU].” Wilkinson, 545 U.S. at 224. Therefore, the Court finds that plaintiff had a

21 protected liberty interest in avoiding confinement in administrative segregation.

22

23

B. Process Due

24

Having found that plaintiff had a protected liberty interest in remaining in the general prison

25 population, the Court must now determine what process was constitutionally due when defendant placed

26 and retained plaintiff in administrative segregation and whether that process was provided here. See

27 Madrid, 889 F. Supp. at 1271. The nature of due process “negates any concept of inflexible procedures

28 universally applicable to every imaginable situation.” Cafeteria & Restaurant Workers Union, Local

34

United States District Court For the Northern District of California

1 473, AFL-CIO v. McElroy, 367 U.S. 886, 895 (1961). Particularly in the prison setting, administrators

2 “should be accorded wide-ranging deference in the adoption and execution of policies and practices that

3 in their judgment are needed to preserve internal order and discipline and to maintain institutional

4 security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). In identifying the procedural and substantive

5 safeguards required by due process in the prison context, the Court recognizes the “legitimate

6 institutional needs of assuring the safety of inmates and prisoners, avoiding burdensome administrative

7 requirements that might be susceptible to manipulation, and preserving the disciplinary process as a

8 means of rehabilitation.” Superintendent, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 454-55

9 (1985).

10

In determining what process is due to plaintiff, the Court considers three distinct factors: the

11 private interest that is affected by the government action, the risk of erroneous deprivation of that

12 interest through the procedures used, and the government’s interest. Mathews v. Eldridge, 424 U.S. 319,

13 335 (1976). Clearly, plaintiff has a substantial interest in remaining free from the harsh conditions

14 imposed by administrative segregation and the SHU. The State also has a substantial interest in swift

15 administrative segregation of suspected gang members. “The State’s first obligation must be to ensure

16 the safety of the guards and prison personnel, the public, and the prisoners themselves.” Wilkinson, 545

17 U.S. at 227. Prison gangs pose a serious threat to prison security: “[c]landestine, organized, fueled by

18 race-based hostility, and committed to fear and violence as a means of disciplining their own members

19 and their rivals, gangs seek nothing less than to control prison life and to extend their power outside

20 prison walls.” Id. at 227. Finally, the risk of erroneous deprivation is high, but may not be cured by

21 more formality of procedure. Because the decision to place an inmate in administrative segregation

22 draws on the experience of prison administrators and the State’s interest implicates the safety of prison

23 personnel and other inmates, “informal, nonadversary procedures” are appropriate. Id. at 229.

24

Moreover, the “quantum of process that is constitutionally due to segregated inmates depends

25 upon whether the segregation is punitive or administrative in nature.” Stewart v. Alameida, 418 F. Supp.

26 2d 1154, 1165 (N.D. Cal. 2006). Administrative segregation occurs when prison officials segregate an

27 inmate “to further the need of the prison,” for example to protect an inmate’s safety or to keep an inmate

28 isolated pending classification or transfer. Taylor v. Koon, 682 F. Supp. 475, 477 (D. Nev. 1988).

35

United States District Court For the Northern District of California

1 Administrative segregation does not necessarily brand an inmate with the stigma of wrongdoing. Hewitt

2 v. Helms, 459 U.S. 460, 468 (1983). Disciplinary detention, in contrast, is used to punish inmates. Id.

3 The procedural requirements that attach to administrative segregation are far less stringent than those

4 that are required in a disciplinary proceeding. Hewitt, 459 U.S. at 473-76; Farr v. Blodgett, 810 F.

5 Supp. 1485, 1496 (E. D. Wa. 1993). Thus, the procedural requirements that attach when prison officials

6 segregate inmates on the basis of gang affiliation are lower than those that attach when inmates are

7 segregated for disciplinary reasons.

8

9

1. Validation as Gang Member and Initial Transfer to Administrative

Segregation (DVI Ad-Seg)

10

Many courts have considered the balance of the Mathews factors and analyzed the process due 11

to inmates in connection with transfer to administrative segregation. The Supreme Court has held that 12

the level of process due to inmates before being transferred to administrative segregation includes some 13
notice of the charges against the inmate, and an opportunity to be heard. Hewitt, 459 U.S. at 473-76.28 14

In Toussaint v. McCarthy the Ninth Circuit clarified this standard and held that when prison officials 15

initially decide to place an inmate in administrative segregation, due process requires only the following 16

procedures: “[p]rison officials must hold an informal nonadversary hearing within a reasonable time 17

after the prisoner is segregated. The prison officials must inform the prisoner of the charges against the 18

prisoner or their reasons for considering segregation. Prison officials must allow the prisoner to present 19

his views.” Toussaint, 801 F.2d 1080, 1100 (9th Cir. 1986), abrogated in part on other grounds by 20

Sandin, 515 U.S. 472). The Toussaint court found that due process in the administrative segregation 21

context does not require detailed written notice of charges, representation by counsel or a substitute 22

therefor, an opportunity to present witnesses, or a written description of the reasons for placing the 23

prisoner in administrative segregation. Toussaint, 801 F.2d at 1100-01. 24

To satisfy the constitutional requirement than an inmate be provided “an opportunity to be 25

heard,” the inmate must have an opportunity to present his views to the official who decides whether 26

27

28

28 Although Sandin v. Conner abrogated “Hewitt’s methodology for establishing the liberty

interest, [the case] remain[s] instructive for [its] discussion of the appropriate level of procedural

safeguards.” Wilkinson, 545 U.S. at 229.

36

United States District Court For the Northern District of California

1 to transfer the inmate to administrative segregation. Hewitt, 459 U.S. at 476; Toussaint, 801 F.2d at

2 1100, 1102 (due process requires more than “meaningless gestures”). “In the case of administrative

3 segregation founded upon positive gang validation, the official charged with deciding whether to

4 transfer or retain an inmate in administrative segregation is the IGI.”29 Stewart, 418 F. Supp. 2d at 1165

5 (citing Toussaint, 926 F.2d at 803, and Madrid, 889 F. Supp. at 1276). It is this official to whom

6 plaintiff must be allowed to present his views. See Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir.

7 1990). Thus, “prior to validation as a gang member, [an inmate is] entitled to an ‘informal nonadversary

8 hearing’ with an IGI.” Stewart, 418 F. Supp. 2d at 1165. Because the ICC “is predisposed to transfer

9 any validated inmate to the SHU,” an inmate’s meeting with the IGI, who prepares the gang validation

10 packet and forwards his determination that the prisoner is associated with a gang to the SSU, is the

11 critical point. Madrid, 889 F. Supp. at 1277; see also Juarez v. Alameida, No. 1:04-cv-05668, 2008 U.S.

12 Dist. LEXIS 66083, at *16-17 (E.D. Cal. Aug. 4, 2008) (“Because validation itself is the critical

13 decision in the process, Plaintiff was entitled to notice and an opportunity to be heard on the issue of

14 his validation prior to his validation.” (emphasis original)). The inmate may present his views via

15 written statement or by oral presentation if prison officials believe a written statement would not be

16 effective. Hewitt, 459 U.S. at 476. “So long as this occurs, and the decisionmaker reviews the charges

17 and then-available evidence against the prisoner, the Due Process Clause is satisfied.” Hewitt, 459 U.S.

18 at 476.

19

20

2. Retention in Administration Segregation (Pelican Bay SHU)

21

Administrative segregation “may not be used as a pretext for indefinite commitment of an

22 inmate. Prison officials must engage in some sort of periodic review of the confinement of such 23

24

25

26 29 Although the ICC is the “designated decision-maker” as to segregation, the actual decision
27 to segregate is clearly made by the IGI. Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir. 1990) (noting that the “the actual decision to segregate is made by the Criminal Activities Coordinator,” which
28 is now called the IGI). Because the IGI is the critical decision-maker, an inmate is not entitled to the opportunity to present his views to the SSU agent, the agent who formally approves the gang validation. Madrid, 889 F. Supp. at 449; Stewart, 418 F. Supp. 2d at 1167.

37

United States District Court For the Northern District of California

1 inmates.” Hewitt, 459 U.S. at 477 n.9.30 The impact on an inmate’s liberty interest is likely to be greater

2 when he is administratively segregated for an indefinite period of time based upon gang membership

3 than when he is confined to segregation for a definite and short period of time. See Ramirez v. Galaza,

4 334 F.3d 850, 861 (9th Cir. 2003) (noting that plaintiff was segregated for two years, and that “the

5 length of confinement cannot be ignored in deciding whether the confinement meets constitutional

6 standards”) (quoting Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996)). Likewise, the need for prison

7 administrators to act swiftly is significantly lessened when the inmate is already segregated. Id. Thus,

8 the decision to confine an inmate to segregated housing indefinitely requires more process than does the

9 initial decision to place the inmate there. Id. In deciding to retain an inmate indefinitely in

10 administrative segregation, due process requires that the inmate be given periodic reviews of his

11 confinement that amount to more than “meaningless gestures.” Toussaint, 801 F.2d at 1101-02.

12

Specifically, if prison officials want to retain an inmate in administrative segregation indefinitely

13 based on gang validation, due process requires the following: (1) that the inmate be afforded the

14 opportunity to present his views to the IGI prior to any decision to retain him in segregation for an

15 indeterminate period, or for any period exceeding 30 days, based on positive gang validation; (2) the

16 IGI must designate the prisoner as being a current active member of the prison gang prior to an ICC

17 decision to retain the inmate in segregation for an indeterminate period, or for any period exceeding 30

18 days; and (3) the IGI must reevaluate the designation that the inmate is a member of a prison gang every

19 120 days. Madrid, 889 F. Supp. at 1273; see also Toussaint v. Rowland, 711 F. Supp. 536, 541 (N.D.

20 Cal. 1989). Although an inmate is entitled to a hearing before the ICC prior to its decision to retain him

21 in segregated housing based on his gang validation, Stewart, 418 F. Supp. 2d at 1165, the requirement

22 that an inmate be given periodic reviews is not satisfied simply because an inmate routinely appears 23 before the ICC during his segregation; if the ICC officials consistently deny an inmate’s requests for 24 an opportunity to refute his gang validation, due process is not satisfied. See Guizar v. Woodford, 282 25 Fed. Appx. 551, 553 (9th Cir. 2008). 26

27 30 As noted above, California regulations mandate that ICC may not retain an inmate in
28 administrative segregation beyond 30 days without the approval of a CSR. At least in the context of assignments to SHU for gang association, the CSR’s approval “is routine.” Madrid, 889 F. Supp. at 1244.

38

United States District Court For the Northern District of California

1

2

C. Process Afforded to Plaintiff

3

Having determined that defendant was constitutionally required to provide plaintiff with the

4 process outlined above, the Court must now consider whether the procedures provided by defendant

5 comported with this standard.

6

7

1. Initial Gang Validation and Placement in DVI Ad-Seg

8

Prison officials initiated the gang validation of plaintiff in December 1992. Plaintiff was not

9 notified. By May of 1993, officials had collected three pieces of evidence in support of plaintiff’s

10 validation. Plaintiff paroled on May 14, 1993. On May 18, 1993, the IGI completed its investigation

11 and submitted plaintiff’s gang validation package to SSU. On July 2, 1993, SSU validated plaintiff as

12 an associate of the Northern Structure prison gang. All of this was done totally in secret from plaintiff.

13 Plaintiff was not provided with notice that he was being validated for gang membership, nor was he

14 provided with notice that he had been positively validated. When he returned to prison for a parole

15 violation in December 1995, he was immediately placed in administrative segregation due to his gang

16 validation status. (Ex. 14).

17

Plaintiff was not provided with a non-adversary hearing with the IGI prior to his gang validation,

18 and therefore he was not provided with notice and a meaningful opportunity to be heard. Indeed,

19 plaintiff’s appearances before the ICC between the time he was initially placed in DVI Ad-seg and the

20 date on which he was transferred to Pelican Bay to serve his indefinite SHU term can hardly be

21 characterized as meaningful. To the contrary, ICC spent six months telling plaintiff they couldn’t

22 consider his gang status until his C-file arrived, although it provided no explanation for the delay. Once

23 the file did arrive, ICC told plaintiff that his chrono had not arrived, and thus they still could not 24 consider his validation status. Finally, once the Committee had both the C-file and the chrono, it 25 immediately decided to transfer plaintiff to Pelican Bay SHU based on the IGI’s validation. At no point 26 did prison officials allow plaintiff to refute the gang validation, for example by meeting with the IGI 27 who had actually validated him, even though he continually requested that he be afforded the 28 opportunity to do so. Nor was plaintiff ever given the opportunity to present his views to either of the

39

United States District Court For the Northern District of California

1 IGIs who worked on his case.

2

This clearly does not satisfy even the minimal requirements of due process. The “fundamental

3 requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful

4 manner.” Mathews, 424 U.S. at 333 (emphasis added). In the context of administrative segregation

5 based upon gang validation, this clearly requires an informal hearing with the IGI. Because the ICC is

6 predisposed to administratively segregate any validated inmate, the inmate’s meeting with the IGI is

7 critical. See Madrid, 889 F. Supp. at 1277; see also Hewitt, 459 U.S. at 476 (due process requires that

8 an inmate be allowed to present his views to the official charged with deciding whether to confine him

9 to administrative segregation); accord Toussaint, 801 F.2d at 1100. As the Ninth Circuit has noted, due

10 process “cannot be satisfied simply because it is undisputed that [plaintiff] routinely appeared before

11 the ICC during his segregation. Under [plaintiff’s] version of the facts . . . during these appearances the

12 ICC-defendants consistently denied [plaintiff’s] multiple requests for an opportunity to refute the gang

13 validation.” Guizar, 282 Fed. Appx. at 553.

14

Indeed, testimony at trial underscored the critical importance of the initial meeting with the IGI

15 and conclusively established that due process cannot be afforded without it. Because so many levels

16 of review after the validation decision rely on the IGI’s findings and assume that the IGI did his job

17 correctly, it is crucial that the IGI fully investigate an inmate before endorsing his validation. If the IGI

18 does not meet with the inmate before validating him, an integral part of the story, the inmate’s side, is

19 missing from the IGI’s version of the facts.

20

For example, the ICC does not reassess the credibility of or investigate the documents used to

21 validate an inmate. Instead, the Committee simply notes whether the documents meet gang validation

22 requirements. The committee does not do a substantive review of the documents because it is not their

23 job; rather, it is the original validating IGI’s job. Likewise, Officer Fielder, who conducted plaintiff’s 24 inactive review, testified that he did not reevaluate or reassess the reliability of the source items used 25 for plaintiff’s original validation because that was not part of his job. (610:19-611:1). Fielder explained 26 that the purpose of his investigation was not to provide plaintiff with an independent review of his 27 original validation. Rather, he was just looking for gang activity within the last six years. (610:1928 611:1). Fielder simply assumed that the original validation had been proper.

40

United States District Court For the Northern District of California

1

Nor was plaintiff able to obtain any substantive review of his validation through the appeal

2 process. Former Warden McGrath explained that appeals, at all levels, are procedural reviews. Officers

3 do not reevaluate the evidence, but simply look to see if all of the components are properly in place.

4 (708:14-709:3). McGrath explained that in reviewing inmate appeals, he would not investigate

5 something like plaintiff’s claim that he did not create the “gang” drawing. Rather, McGrath would

6 assume the truth of whatever was written in the chrono. (706:1-8).

7

McGrath conceded that there is essentially no recourse for an inmate who is mistakenly

8 validated. The inmate cannot debrief, because in order to debrief you have to be an actual gang member.

9 The inmate can appeal, but, as explained above, appeals are only procedural reviews; officers reviewing

10 appeals do not make independent judgments of the evidence. Moreover, the institutional expectation

11 is that every validated inmate appeals, and that all validated inmates claim that they are not in a gang.

12 McGrath testified that he has never met a gang members who said “I’m a gang member.” Rather, “every

13 one of them denies it.” Given this extremely high number of appeals, it is unlikely that any inmate

14 could hope to get a meaningful review even if it weren’t merely procedural.

15

Thus, given the fact that it is effectively impossible to undo a wrongful validation, it is absolutely

16 crucial that the IGI meet with the inmate before formally validating him. Defendant makes much of the

17 fact that plaintiff was on parole when he was formally validated as a gang member, as though this

18 provides ample and reasonable explanation why plaintiff was never afforded an opportunity to meet with

19 the IGI. It does not. IGI Smith’s investigation into plaintiff’s gang involvement began at least in

20 December of 1992. Plaintiff remained incarcerated until May 14, 1993. Defendant has provided no

21 explanation for the fact that IGI Smith failed to meet with plaintiff during these six months, and there

22 does not appear to be any. The simple fact is that plaintiff was not afforded an opportunity to meet with

23 the critical decision-maker in the validation process before the process was complete, and therefore 24 plaintiff was deprived of due process of law. 25

26

2. Retention in Administrative Segregation at Pelican Bay SHU

27

On September 24, 1996, prison officials decided to transfer plaintiff to the Security Housing Unit

28 (“SHU”) at Pelican Bay for indefinite administrative segregation. Plaintiff remained in the SHU for the

41

United States District Court For the Northern District of California

1 remainder of his sentence. During plaintiff’s confinement in the SHU, he regularly appeared before the

2 ICC and engaged in several inmate appeals. Defendant argues that these procedures provided plaintiff

3 with sufficient due process, and that they cured any violation of plaintiff’s due process rights that may

4 have occurred when he was initially validated as a gang member and placed in administrative

5 segregation. The Court disagrees with both contentions.

6

It is of course settled that a “violation of procedural rights requires only a procedural correction,

7 not reinstatement of a substantive right to which the claimant may not be entitled on the merits.”

8 Raditch v. United States, 929 F.2d 478, 481 (9th Cir. 1991). But plaintiff was not provided with

9 sufficient meaningful periodic review of his SHU confinement to constitute even a procedural

10 correction. Although he appeared regularly before the ICC, that evidence shows that those hearings

11 were largely perfunctory and generally lasted no more than five minutes. Moreover, the purpose of the

12 ICC reviews was merely to verify that plaintiff’s validation was procedurally proper. The ICC reviews

13 provided no substantive review of the propriety of plaintiff’s retention in administrative segregation.

14 Plaintiff was not afforded any kind of meeting with an IGI until1998, and even then the meeting was

15 in the context of his 602 inmate appeal. As former Warden McGrath testified, such appeals involve only

16 procedural review. But because plaintiff was denied the opportunity to present his views to the original

17 validating IGI, the critical decision-maker, before the IGI decided to validate him as a gang member,

18 the periodic procedural reviews of that decision were meaningless. In order for periodic review to be

19 meaningful to plaintiff, it had to be substantive; in essence, it needed to make up for the fact that he was

20 never afforded an opportunity to meet with the IGI prior to his validation. However, the evidence and

21 testimony at trial established that no one ever re-investigated or re-evaluated the validation evidence.

22 The Court therefore finds that plaintiff did not receive meaningful periodic reviews of his SHU

23 confinement and that his due process rights were violated. The Court further concludes that because 24 the periodic reviews were not meaningful, those reviews did not cure the initial violation of plaintiff’s 25 due process rights. 26

27

3. Evidence Used to Validate Inmate as Gang Member

28

Due process also requires that when prison officials decide to deprive an inmate of the liberty

42

United States District Court For the Northern District of California

1 interest of remaining free from administrative segregation, they do so on the basis of “some evidence

2 on the record.” Cato v. Rushen, 824 F.2d 703, 706 (9th Cir. 1987) (articulating the standard adopted

3 by the Supreme Court in Hill, 472 U.S. at 455). Under the Hill standard, the Court asks whether there

4 is “any evidence in the record that could support the conclusion” reached by prison officials. Hill, 472

5 U.S. at 455-56. Because prison officials may properly rely on their “experience and awareness of

6 general prison conditions” when making segregation decisions, Toussaint, 801 F.2d at 1105, the Hill

7 standard is minimally stringent. Nevertheless, there must be “some indicia of reliability of the

8 information” that prison officials use to place inmates in administrative segregation. Cato, 824 F.2d at

9 705.

10

While “due process does not require disclosure of the identity of any person providing

11 information leading to the placement of a prisoner in administrative segregation,” Toussaint, 801 F.2d

12 at 1101, “the use of confidential information in segregation proceedings is still subject to a

13 determination as to its reliability.” Farr, 810 F. Supp. at 1491. Even in the administrative segregation

14 context, confidential information must meet “certain standards for reliability.” Id. at 1497.

15

After careful consideration of the testimony and evidence at trial, the Court concludes that the

16 evidence used to validate plaintiff as a Northern Structure affiliate does not meet the “some evidence”

17 standard because each item lacks some indicia of reliability. The Court emphasizes that if any single

18 piece of evidence was reliable, that would be sufficient to meet the “some evidence” standard,

19 notwithstanding the weaknesses of the other evidence. However, the problem here is that all of the

20 validating evidence suffered from reliability problems: the evidence was either uncorroborated, as with

21 the 1992 “laundry list” and the 1998 debriefing report claiming that plaintiff assaulted a cellmate, or

22 equivocal and marked with inconsistencies, as with the drawing and Romero’s reports about the Merced

23 County Jail yard incident. 24

25

a. The drawing

26

The Court finds that there are a number of problems with CDCR’s reliance on the drawing as

27 evidence of plaintiff’s prison gang affiliation. At trial the purported “gang symbols” were not visible

28 even to many of defendant’s witnesses, all of whom testified about their extensive training in

43

United States District Court For the Northern District of California

1 investigating prison gangs and identifying prison gang symbols. Almost nobody could identify the

2 “Northern Star,” and the two witnesses who could find it located it in different places on the drawing,

3 and one witness only after being shown a highlighted version. Further undermining the reliability of

4 the drawing as evidence of prison gang affiliation is the equivocal nature of the Huelga bird and the

5 number “14.” The evidence at trial established that the Huelga bird is a used by the United Farm

6 Workers as their union symbol, and that it has become a symbol of Hispanic American culture.

7 Similarly, the number “14” refers to “N,” the fourteenth letter of the alphabet, and in turn stands for

8 “Norteno” or Northern California Hispanic.

9

The value of the drawing as a validation item is further called into question by the evidence

10 demonstrating that plaintiff did not draw it. As stated above, the Court is persuaded by the testimony

11 at trial that plaintiff only admitted that the photocopied drawing was his, not that he created it, and that

12 instead another inmate, Freddie Leyba, made the drawing. Mr. Leyba testified that there is no Northern

13 Star in the drawing, that he did not intend to put any hidden gang symbols in the drawing, and that the

14 number “14” was intended to signify “Norteno.” Defendant contends that it is irrelevant whether

15 plaintiff or another inmate created the drawing because what is important is the fact that plaintiff

16 possessed the drawing. This position is somewhat inconsistent with the importance attributed in the

17 chrono to plaintiff purportedly “freely admitting” that he created the drawing. Moreover, given the

18 inscrutability of the symbols – as demonstrated by defendant’s own witnesses at trial – the fact that

19 plaintiff did not make the drawing is relevant; if plaintiff was not connected to the Northern Structure

20 prison gang, he presumably would have as much difficulty, if not more, locating hidden gang symbols

21 in the picture than the trained gang investigators.

22

Moreover, the Court is troubled by evidence suggesting that CDCR personnel may have

23 confused the Leyba drawing confiscated from plaintiff’s locker with the “Nuestra Raza” picture 24 confiscated from validated Northern Structure inmate Juan Morales. The Morales drawing was 25 mistakenly placed in plaintiff’s C-file, and contains the handwritten notation “See 128B dated 5/10/93” 26 – the date of the chrono prepared for the Leyba drawing. Unlike the Lebya drawing, in the Morales 27 drawing the Huelga bird is clearly identifiable, and contains the obvious gang reference to “Nuestra 28 Raza.”

44

United States District Court For the Northern District of California

1

b. Officer Romero’s Merced County Jail Incident Report

2

The Court concludes that Officer Romero’s April 13, 1993 incident report is problematic as

3 prison gang validation evidence in many ways. As a threshold matter, the Court is troubled by the

4 differences between the two versions of the report. Officer Romero testified that the contemporaneous

5 handwritten report was accurate, and that when he wrote that report he recorded everything that he

6 thought was significant to document regarding the incident. No explanation was provided as to why the

7 contemporaneous handwritten report does not identify plaintiff as being one of the two main participants

8 in the incident, while the typed report, made a year later, names plaintiff as one of the instigators.

9

In any event, under both versions of the report, the incident was brief and did not result in any

10 violence or physical contact, and plaintiff’s gang validation expert Dan Vasquez testified that this

11 incident was too inconsequential to have any prison gang significance. Moreover, Officer Romero

12 testified that he did not intend to indicate that plaintiff was affiliated with a prison gang, and indeed

13 Romero wrote a letter to CDCR in 1998 to “clarify any misunderstandings” that CDCR might have as

14 to whether Merced County Jail had any gang validation on plaintiff. (Ex. 49). Particularly when CDCR

15 received Romero’s 1998 letter, CDCR should have questioned the reliability of the April 13, 1993 typed

16 report as a basis for plaintiff’s gang validation.

17

The Court is also very troubled by the fact that IGI Smith mistakenly interpreted Romero’s April

18 13, 1993 report as stating that plaintiff was affiliated with the Northern Structure. As noted above,

19 Smith mistakenly read the “/” in that report that punctuated the descriptions of plaintiff and validated

20 NS member Juan Morales, and assumed that the information about Morales pertained to plaintiff. Smith

21 memorialized that factual error in the May 10, 1993 chrono, stating “On April 13, 1993 I received

22 information from Officer R. Romero, of the Merced County Sheriffs Department, who identifies Inmate

23 Lira H-36693 AKA “CHINO” to be an associate of the NORTHERN STRUCTURE Prison Gang . . . 24 .” (Ex. 10). That chrono was part of the official validation package. Defendant contends that this error 25 was inconsequential because what really matters is the fact that the incident report shows plaintiff 26 associating with a validated Northern Structure member, Morales. However, on this record the Court 27 cannot conclude that this error – which goes to the heart of the validation matter – did not infect the 28 validation process.

45

United States District Court For the Northern District of California

1

c. 1992 Confidential Inmate Debriefing Report

2

The 1992 confidential debriefing report also does not satisfy the “some evidence” standard. The

3 report, which is dated September 25, 1992, does not mention plaintiff anywhere in its narrative portion.

4 Plaintiff’s name appears only in the “laundry list” at the end of the report, where he is identified as a

5 Category III Northern Structure member. The evidence at trial established that there was never any

6 investigation into or attempt to independently corroborate this information. Thus, the record is devoid

7 of any information explaining how plaintiff’s name came to be included in the “laundry list.”

8

However, there is evidence as to how these laundry lists are typically compiled. Several CDCR

9 personnel testified that all Northern Structure members are required to memorize lists of other member

10 names and identifying information. These lists, sometimes referred to as “filter lists,” are passed around

11 within the prison system among Northern Structure members. The inherent unreliability of such lists,

12 based entirely on hearsay, is obvious. There is no way to determine when such a list was compiled,

13 from what sources, or by whom. The Ninth Circuit has recognized in a similar context that an inmate

14 statement relayed to correctional officials by a confidential informant with no firsthand knowledge of

15 the statement was insufficient to constitute “some evidence” supporting gang validation. See Cato v.

16 Rushen, 824 F.2d 703, 705 (9th Cir. 1987). Here, there was no independent assessment or corroboration

17 of plaintiff’s inclusion on the laundry list, and thus this piece of evidence is inherently unreliable.31

18

Defendant contends that the debriefing report is reliable because the debriefing inmate

19 incriminated himself, and because the information contained in the report was independently shown to

20 be true. However, as Officer Hernandez testified, he did not give the debriefing inmate a Miranda

21 warning (consistent with CDCR practice), and in reality the debriefing process involved no risk of self-

22 incrimination. See Medina v. Gomez, No. C 93-1774 THE, 1997 WL 488588, at *5 (N.D. Cal. Aug. 14,

23

24

31 The inherent unreliability of laundry list identifications is reflected by the fact that CDCR

changed its regulations on acceptable validation evidence items in January 2006 pursuant to its

25 settlement of Castillo v. Alameida, No. C 94-2847 (N.D. Cal. 1994). Under the regulations as amended,

laundry list identifications in debriefing reports are no longer acceptable. Instead, debriefing reports

26 must both name an inmate as gang-affiliated, and in addition “Staff shall articulate how the information

specifically relates to the inmate’s involvement with the gang as a member or associate. The

27 information may be used as a source of validation if the informant provides specific knowledge of how

he/she knew the inmate to be involved with the gang as a member or associate.” 15 Cal. Code Regs.

28 § 3378 (c)(7)(H). CDCR emphasizes the fact that these regulations as amended are only prospective

in effect. The Court recognizes that these amended regulations do not apply to plaintiff’s validation.

46

United States District Court For the Northern District of California

1 1997) (“existing procedural safeguards preclude the possibility that a debriefing interview will later be

2 used as a basis for a criminal proceeding and thus adequately serve the policy underlying the Fifth

3 Amendment”). As to the contention that the report was reliable because information provided by the

4 debriefing inmate had been proven to be true, none of the 13 incident reports related to plaintiff. In

5 addition, 4 of the 13 involved the debriefing inmate himself, for matters upon which a CDCR written

6 report had been generated, thus calling into question the “independent” nature of this corroboration.

7 Further, 11 of the 13 incidents dated from 1981 and 1982, and thus were 10 years old at the time of the

8 debriefing.

9

Another troubling aspect of the report is that a different inmate named Lira was mentioned in

10 the narrative portion of the report. This Lira, however, did not appear in the laundry list at the end of

11 the report. Because sometimes the informant simply provides the names for the laundry list and the

12 debriefing officer fills in the other information (such as CDC number), it is possible that the informant

13 might have been referring to the other Lira when naming names for the laundry list, and that when the

14 debriefing officer went to fill in the details, he looked up the name “Lira” and wrote down plaintiff’s

15 CDC number by mistake.32 Because of these serious problems, the Court finds that this validation item

16 therefore did not meet even Hill’s minimally stringent “some evidence” standard.

17

18

d. 1998 Confidential Inmate Debriefing Report

19

The final piece of evidence is the April 1, 1998 confidential inmate debriefing report, which was

20 used to continue plaintiff’s validation on active status. The report includes several accounts of gang

21 activity by plaintiff, the most serious of which is the account of plaintiff assaulting and “beating” a new

22 cellmate at the direction of a non-validated gang member. However, the evidence at trial established

23 that CDCR’s own records do not contain any record of such a beating. Plaintiff’s housing logs showed

24 that he had two cellmates during the time period possibly covered by the debriefing report: Anthony

25 Montoya and Anthony Ramirez. As discussed above, the only “fight” between plaintiff and a cellmate

26

27

32 The Court also finds it notable that in the laundry list, plaintiff is identified as “CAT III.” As

defendant’s gang expert Marquez testified, Category III signifies a position of highest rank or leadership

28 within the Northern Structure. This designation of plaintiff as a high ranking Northern Structure

member is inconsistent with his validation as a Northern Structure associate, and was unexplained at

trial.

47

United States District Court For the Northern District of California

1 occurred on October 7, 1997 between plaintiff and Anthony Ramirez. That incident was investigated,

2 and the disciplinary charges were dropped, with findings that there was no evidence of physical contact

3 between plaintiff and Ramirez. In the face of this evidence, defendant contends that the assault

4 described in the debriefing report was undetected. However, this is pure speculation on the part of

5 CDCR, and the evidence in the record is to the contrary. Moreover, the evidence at trial established that

6 no investigation was conducted as to the cellmate assault allegation. If CDCR staff had investigated this

7 allegation, they would have located the dismissed disciplinary charge regarding the incident between

8 plaintiff and Ramirez, which seriously calls into question the reliability of the debriefing report.

9

In sum, none of the evidence used to validate plaintiff was meaningful or reliable, and thus does

10 not meet the “some evidence” standard. The record is riddled with unexplained inconsistencies and

11 numerous indications that critical errors may have infected the validation process, such as Smith’s

12 misreading of Romero’s report as mistakenly identifying plaintiff as a Northern Structure associate.

13

14 III. Remedy

15

A. Declaratory relief

16

“Granting declaratory relief is committed to the sound discretion of the trial court.” Bilbrey v.

17 Brown, 738 F.2d 1462, 1470 (9th Cir. 1984). “Courts have generally recognized two criteria for

18 determining whether declaratory relief is appropriate; ‘(1) when the judgment will serve a useful

19 purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford

20 relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.’” Id. (quoting

21 McGraw-Edison Co. v. Preformed Line Prods. Co., 362 F.2d 339, 342 (9th Cir. 1966)). Here, there can

22 be no doubt that declaratory relief will “terminate and afford relief from the uncertainty, insecurity and

23 controversy” giving rise to this lawsuit. See id. Plaintiff has presented significant evidence that the 24 denial of due process he suffered at the hands of defendant has had a significant impact on his mental 25 and emotional health. Plaintiff’s experts have testified that a declaration would have a significant 26 mitigating impact on plaintiff’s condition. Therefore, the Court finds that declaratory relief is 27 appropriate here. 28

48

United States District Court For the Northern District of California

1

B. Expungement

2

Because plaintiff’s due process rights were violated when he was validated as a gang member

3 without notice and opportunity to present his views, expungement of the gang records is an appropriate

4 remedy. See Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1275 (9th Cir. 1998) (“Even

5 if the continued storage, against plaintiffs’ wishes, of intimate medical information that was allegedly

6 taken from them by unconstitutional means does not itself constitute a violation of law, it is clearly an

7 ongoing ‘effect’ of the allegedly unconstitutional and discriminatory testing, and expungement of the

8 test results would be an appropriate remedy for the alleged violation.”); cf. Fendler v. U.S. Parole

9 Comm’n, 774 F.2d 975, 979 (9th Cir. 1985) (“Federal courts have the equitable power ‘to order the

10 expungement of Government records where necessary to vindicate rights secured by the Constitution.’”

11 (quoting Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C. Cir. 1975)).

12

Expungement is appropriate when “the maintenance of such records would be fundamentally

13 unfair.” United States v. Sweeney, 914 F.2d 1260, 1264 (9th Cir. 1990); see also Burnsworth v.

14 Gunderson, 179 F.3d 771, 772, 775 (9th Cir. 1999) (expungement of disciplinary records proper where

15 prison convicted inmate of escape attempt based on “no evidence whatsoever”). The fact that the

16 records are “state records” does not “put them beyond federal control, even though the area is a sensitive

17 one involving delicate policy considerations.” Wilson v. Webster, 467 F.2d 1282, 1284 (9th Cir. 1972).

18 Therefore, the Court finds that expungement of plaintiff’s gang validation records is appropriate here.

19

20

IT IS SO ORDERED.

21

22 Dated: September 30, 2009 23 24

SUSAN ILLSTON United States District Judge

25

26

27

28

49

 
 Case 3:00-cv-00905-SI Document 524 Filed 04/08/10 Page 1 of 2

EDMUND G. BROWN JR. Attorney General

April 7, 2010

State of California
DEPARTMENT OF JUSTICE
455 GOLDEN GATE AVENUE, SUITE 11000 SAN FRANCISCO, CA 94102-7004
Public: (415) 703-5500 Telephone: (415) 703-5871 Facsimile: (415) 703-5843 E-Mail: Scott.Feudale@doj.ca.gov

The Honorable Susan Illston United State District Court, Northern District of California 450 Golden Gate Ave. San Francisco, CA 94102

RE: Lira v. Director of Corrections, et al. United States District Court, Northern District of California, Case No. C-00-0905

Dear Judge Illston:

I write to advise the Court of Mr. Lira's current custody status. On April 2, 2010, the court held a conference call with all parties to inquire into Mr. Lira's custody status at Merced County jail. According to a letter Mr. Lira sent the Court, he was incarcerated in Merced County jail pending criminal charges. In his letter, Mr. Lira alleged that he was being housed at the jail in administrative segregation (ad/seg) solely because ofhis CDCR gang validation. During the conference, I advised the Court that Mr. Lira was principally being retained in ad/seg, not on the basis of his now expunged prison gang validation, but because ofhis long-standing history of violence within the county jail. Nevertheless, the Court requested that I write the jail's classification officer, Officer Middleton, and notify him that Mr. Lira's validation has been expunged and must not be acted on. As the Court is aware, I sent such a letter to Officer Middleton on April 2, 2010.

On April 6, 2010, Officer Middleton contacted me and informed me that Mr. Lira has been released from jail. According to Officer Middleton, Mr. Lira pleaded guilty to driving under the influence of alcohol and received a two-day jail sentence but was credited for time served and released from custody. Officer Middleton informed me, however, that should Mr. Lira return to Merced County jail in the future, he will not consider CDCR's gang validation in determining Mr. Lira's housing assignment. I hope this information is helpful. If the Court has any further questions, please contact me. Thank you.

cc: Mark White, Esq.

Deputy Attorney General
For EDMUND G. BROWN JR. Attorney General

I----~~
Case 3:00-cv-00905-SI Document 524 Filed 04/08/10 Page 2 of 2
I i
1
I
CERTIFICATE OF SERVICE

Case Name: Lira v. Director of Corrections, et al.

No. C-00-090S

I hereby certify that on AprilS, 2010, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system:
LETTER TO THE COURT DATED APRIL 7, 2010 RE: LIRA'S CUSTODY STATUS
I certify that all participants in the case are registered CMlECF users and that service will be accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on AprilS, 2010, at San Francisco, California.

M. Luna Declarant
40449989.doc

Signature

 
 Case 3:00-cv-00905-SI Document 547 Filed 06/22/12 Page 1 of 4

.1. KAMALA D. HARRIS

.

Attorney General of California

2 WilLIAM C. KWONG

.

Supervising Peputy Attorney General

'3 ScoTTJ.FEUDALE

Deputy Attorney General .

4 State Bar No. 242671

.

455 Golden Gate Avenue, Suite 11000

5. San Francisco, CA 94102w7004

Telephone: (415) 703-5871

6 Fax: (415) 703-5843

~-mail: Scott.Feudale@doj.ca.gov

7 Attorneys for Defenc!ant Cate ·

8

9

JOHN G. HELLER1
ROGERS, JOSEPH O'DONNELL
311·Califomia Street, 10th Floor San Francisco, CA 94104 Telephone: (415) 956-2828 Fax: (415) 956-6457 ·E-Mail: JHeller@rjo.com
.A_ttorneysfor PlaintiffLira ·

ROBERT D. HALLMAN2

ARNOLD & PORTER LLP

3 Embarcadero Center, 7th Floor

San Francisco, CA 94111

Telephone: (415) 471-3114

Fax: (415) 471-3400 ·

.

· E-mail: Robert.Hallman@aporter.com

Attorneysfor PlaintiffLira

.

10 IN THE UNITED.STATES DISTRJCT COURT
11 FOR THE NORTHERN DISTRICT OF CALIFORNIA ·
12 SAN FR.A.NCISCO DIVISION
.13

14 . 15 ERNESTO LIRA,·

Case ;No. C-00-0905

16

Pla.Uitlff, .STIPirLATION AND ORDER

·.

CONFIRMING SATISFACTION OF

··17

v.

ORDERS AWARDING ATTORNEYS'

FEES AND COSTS

18

. DIRECTOR OF CORRECTIONS, et al.,

19

Defendants.

20

21

22

Ori September 29, 2009, the Court issued its Findings of Fact and Conclusions qfLaw and

as .

.

. 23 .:fudgment ~nding that Plaintiff's due-process. rights were violated when he was validated a

24
1 Chapman, Popik & White LLP (CPW) is clirrently in dissolution. (See
25 www.chapop.com.) Nam~d partners and attorneys assigned to this case, Mark White and Bill Chapman, have retired from practice. Former CPW partD:er John Heller, now a shareholder at
26 Rogers, Joseph O'Donnell, i~ authorized to sign this stipulation on behalfof CPW; · 2 Effective January 1, 2012, the firms Howard,'Rice, Neiherovski, Canady, Falk & Rabkin
27 PC and Arnold & Porter LLP merged. See www.howardrice.com. Former Howard Rice
associate, Robert Hallman, is authorized to sign this stipulation on behalf ofthe ne~ partnership. 28
1
Stip. &:?~der Gqnfinning Satis~ag~on Orders Awarding Att'ys Fees & Costs (C~00-0905) ·

Case 3:00-cv-00905-SI Document 547 Filed 06/22/12 Page 2 of 4

1 prison-gang member, and ordered injunctive and declaratory relief. (Docket. No. 456.) On

2 Februl:}cy 26, 2010, the Court granted :in part and denied in part Plaintiff's motion for attorneys'

3 fees and costs and awarded fees and; costs in the following amounts: $281,878.50 in attorneys' . 4· fees and $20,450.52 in costs to·Howard Rice and, $762,22~.60 in att~meys' fees and $26,330.60

·5 in costs to Chapman, Popik & \Yhlte.· (Docket No. 513.) Subsequently, the CoUrt stayed its order

6 pending resolution ofDefendants' appeal from tl:i.e Court's September 30,2009 Order, pro:vided 7 Defendants post a $1.2 million dollar supersed~as b~nd. (Docket No 5i7). Defendants posted a

8 . bond :in thls amount on June 25, 20io. (See DocketNo.-540.) On October 21,2010, the clerk of

9 the court taXed separate costs, awardable under 28 U.S.C. § 1920, against"Defendants in the 10 amounts of $24,220.34 for Chapman, Popik~ White and$ 1,422.00 for Howard Rice. (Docket

11 Nos. 541 & 542.)

12

On August 23,2011, the Ninth Circuit affirmed this Court's judgment and issued its

13 mandate approximately three weeks later. (See Docket Nos. 543 & "544.) On October 19, 2011,

14 Plai.ntiff!ecei:ved payment in the amol.mt of$1,154,093.15 to satisfy the February 26, 2010 ~.s· attorneys' ~ee and costs.~ward and stipulated fees ·and costs on appeal, but not the October 21,

16 2010 costs award or statutory interest. Following negotiations among the parties, on January 24, '17 2012, Plaintiffreceived payment in t:p.e agr~ed~upon arnoim.t of$32~266.1.8 ($30,780.88 to
18 Chapman,' Popik, & White and $1,425:30 to Howard Rice) to.cover the remaining court-awarded·

19 costs plus statutory interest. .

· 20

In light oft.he foregoing,. the parties .stipulate that all co.urt-ordered. fee and c.osts awards .

21 issued in this. case have been fully satisfied and request that the Court so acknowledge by signing

22 /Ill

23 Ill

24 ///

25 Ill

26 Iff.

27 Ill

28 ///

2
Stip. & .Order C.onfinnin•g' Satisfaction Orders Awarding Att'ys Fees & Costs (C-00~0905)

Case 3:00-cv-00905-SI Document 547 Filed 06/22/12 Page 3 of 4 6/21/12

Case 3:00-cv-00905-SI Document 547 Filed 06/22/12 Page 4 of 4

CERTIFICATE OF SERVICE

Case Name: Lira v. Director of Corrections, et al.

No. C-00-0905

I hereby certify that on June 20, 2012, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system:
· STIPULATION AND ORDER CONFIRMING SATISFACTION OF ORDERS AWARDING ATTORNEYS' FEES AND COSTS

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on June 20, 2012, at San Francisco, California.

M. Luna Declarant
20620382.doc

Is/ M Luna Signature

 
 Case3:00-cv-00905-SI Document500 Filed01/28/10 Page1 of 3

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

. 10

SAN FRANCISCO DIVISION

11

12 ERNESTO LiRA,
13

14

v.

15

Case No. C-00-'0905
Plaintiff, [PROPOSED] ORDER DENYING DEFENDANT'S MOTION TO STAY

16 MATTHEW CATE, SECRETARY OF THE CALIFORNIA DEPARTMENT OF
17 CORRECTIONS AND
. REHABILITATION,
18 Defendant.
19

20

On September 30, 2009, following a ten-day bench trial, this Court found that Plaintiffs ·

21 . constitutional rights had been violated in connection with his prison-gang validation and .

22 · subsequent placement in secured housing. The Court ordered Defendant, Secretary of the

23 California Department of Corrections and Rehabilitation (CDCR), to expunge Plaintiffs prison

24 gang records and report the expungement to all gang-related law enforcement databases and

25 clearing houses. Defendant timely appealed the Court's judgment and moved for a stay of the

26 order pending appeal. After carefully considering the argwnents from both parties, the Court

27 DENIES Defendant'smotion to stay, but orders certain accommodations to address the potential

28 the administrative consequences to CDCR arising from the judgment.

[Proposed] Order Den. De£ 's Mot. Stay (C-00-0905)
\ .
I

Case3:00-cv-00905-SI Document500 Filed01/28/10 Page2 of 3

·1.

. DISCUSSION

2

In issuing a stay a court must employ two interrelated tests representing the outer reaches of

3 a single ~ontinuum. Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983). At one end of the

4 continuum, the court must consider the moving party's probability of success on the merits and

· 5 . the possibility of irreparable injury. 1d. At the other end, the court must consider whether the

6 moving party raises serious legal questions and whether the balance of hardships tips sharply in

7 its favor. !d. In addition, the court must consider where the public interest lies. Golden Gate

8 Restaurant Ass 'n v. City and County ofSF., 512 F.3d 1112, 1116 (9th Cir. 2008.)

9

In this instance, the Court is not persuaded that it will likely be reversed on appeal. The

10 · Court further ·finds that Plaintiffs interest in avoiding further delay· in expungement, including the

11 protection ofhis safety should he return to prison, outweighs Defendant's interest iri maintaining . 12 Plaintiffs prison-gang records pending appeal. In addition, the Court finds that the public 13 interest would be best served by leaving the judgment in effect. Accordingly, Defendant's

14 request for a stay is denied.

15

The Court recognizes, however, .that its judgment may create significant administrative

· 16 . consequences. · California state regulations require that all inmate gang-validations be supported

17 by a "direct link" of association (e.g., the inmate's validation must be supported by one piece of

18 evidence showing association between that imnate and a previously-validated prison gang

19 member or associate). See Cal. Code Regs. tit. 15, § 3378(c)(3) & (4). Defendant has

20 represented to the Court that its judgment will require the California Department of Corrections

21 . and Rehabilitation (CDCR) to revisit the validations of potentially hundreds of inmates who may

22 have been validated in part based on their documented association with Plaintiff. This process 23 would require the devotion of substantial resource$ that could prove to be very costly to the state 24 taxpayers. In order to avoid this potential administrative burden pending appeal, the Court finds 25 it appropriate to waive state law as it pertains to inmate gang validations based in any part on 26 association with Plaintiff. See Plata v. Schwarzenegger, No. C01-1351 TEH, 2007 WL 1624495, 27 at *3, 7-8 (N.D. Cal. Jun. 4, 2007) (waiving numerous. state laws and administrative regulations

28
2
[Proposed]Order Den. Def. 's Mot. Stay (C-00-0905)

Case3:00-cv-00905-SI Document500 Filed01/28/10 Page3 of 3 1/27/10

 
 CCaassee:30:080--7c5v1-01069051-2S/I24D/2o0c0u8menPt a4g1e7: 1Foilfe3d 12/D29k/t0E8ntryP:a6g7e4194o3f13
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DEC 24 2008
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

In re: MATTHEW CATE.
MATTHEW CATE, Petitioner,
v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,
Respondent, ERNESTO G. LIRA,
Real Party in Interest.

No. 08-75116 D.C. No. 3:00-cv-00905-SI Northern District of California, San Francisco
ORDER

Before: GOODWIN, CLIFTON and BEA, Circuit Judges. The Petitioner’s Emergency Petition for Writ of Mandamus filed December
19, 2008, supporting papers and opposition thereto filed December 22, 2008 were reviewed by the motions panel. After consideration of the said filings and the record on file herein, the court issues the following orders:

KB/MOATT

CCaassee:30:080--7c5v1-01069051-2S/I24D/2o0c0u8menPt a4g1e7: 2Foilfe3d 12/D29k/t0E8ntryP:a6g7e4294o3f13

1. Real Party in Interest Plaintiff Ernesto Lira’s motion to strike is granted. 2. The Emergency Petition for Writ of Mandamus is granted in part, as set forth in this order. 3. The district court is ordered to prevent disclosure to plaintiff Lira of (a) those certain materials compiled by California Department of Corrections and Rehabilitation (“CDCR”) in the course of its gang “validation” process that have been produced to plaintiff’s counsel on an attorneys’-eyes-only basis or (b) the identities and records of confidential informants used by CDCR in its gang validation process of plaintiff. 4. If and when said materials are to be used or referred to at trial so that the identities of the confidential informants would be disclosed, the district court will clear the courtroom of the public, and of plaintiff Lira, and proceed in the presence of only those persons which the district court has previously authorized to know such identities, through its Stipulated Protective Order filed May 21, 2007. 5. If there is a proffer by plaintiff which establishes the need for plaintiff to learn of the identities of the confidential informants with respect to a material issue of fact, which issue is specifically identified by plaintiff in such proffer, the district court may, in camera, consider said proffer and any evidence and argument offered in support thereof, and any opposition thereto, and subject to the district court

KB/MOATT

2

08-75116

CCaassee:30:080--7c5v1-01069051-2S/I24D/2o0c0u8menPt a4g1e7: 3Foilfe3d 12/D29k/t0E8ntryP:a6g7e4394o3f13
making a finding on the record that such need exists, may at that point authorize plaintiff’s counsel to inform plaintiff of the identities of said confidential informants. Any such information regarding the identities of the confidential informants to plaintiff shall take place outside the hearing of the public.
6. Any ruling by the district court which authorizes plaintiff’s counsel to inform plaintiff of the identities of the confidential informants shall be subject to a renewed Emergency Petition for Mandamus; the district court will allow the State of California, should it so choose, a reasonable time in which to file such Emergency Petition for Mandamus.
So ordered.

KB/MOATT

3

08-75116

 
 Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 1 of 69

1 CHAPMAN, POPIK & WHITE LLP William B. Chapman, State Bar No. 88079
2 Mark A. White, State Bar No. 88332 650 California Street, Suite 1900
3 San Francisco, CA 94108 Telephone: (415) 352-3000
4 Facsimile: (415) 352-3030

5 Attorneys for Plaintiff Emesto Lira
6

7

8

IN THE UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11

12 ERNESTO LIRA,

)

)

13

Plaintiff,

)

)

14 V.

)

)

15 DIRECTOR OF CORRECTIONS, et al.

)

)

16

____D_e_fe_nd_an_ts_. _____________

)
)

17

18

No. C-00-0905 SI (pr)

PLAINTIFF'S POST-TRIAL BRIEF

Closing Arg.: Feb. 12,2009

Time:

10:00 a.m.

Courtroom: 10

Judge:

The Honorable Susan Illston

Trial Date: Jan. 12,2009

Complaint Filed: March 14,2000

19

20

21

22

23

24

25

26

No. C-00-0905 SI (pr) Plaintiff's Post-Trial Brief

Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 2 of 69

1 2 3 I. 4 II. 5 6 7 III. 8 9 10
11
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

TABLE OF CONTENTS
INTRODUCTION .......................................................... 1 LEGAL TEMPLATE ........................................................ 3 A. The Procedural Component ............................................. 3 B. The Substantive Component ............................................ 4 THE VALIDATION EVIDENCE .............................................. 5 A. The Drawing With Hidden Gang Symbols ................................. 5
1. The Obscurity of the Hidden Gang Symbols .......................... 6 2. The Ambiguity ofthe Hidden Symbols .............................. 6 3. The Mistaken Imputation of the Drawing to Lira ...................... 8 4. The Other Drawing ............................................. 9 B. The September 1992 Laundry List Debriefing Report ........................ 10 1. The Likely "Filter List" Source of the Laundry List
Identification ................................................. 11 2. The Need for Independent Verification of Informant
Reliability .................................................... 12 3. CDCR' s Indicia of Reliability .................................... !3 4. The Conflicted Meaning of the Laundry List Identification ............. 15 5. CDCR's Amended Regulation Disallowing Laundry List
Identification as Inherently Unreliable ............................... 15 C. The April1993 Merced County Jail Yard Incident Report .................... 16
1. The Two Versions of the Report .................................. 16 2. The Mistaken Chrono Reference to Lira as a
Northern Structure Associate ..................................... 18 3. Sgt. Romero's March 8, 1998 Letter ............................... 19 4. Sgt. Romero's Declaration and Trial Testimony ...................... 20

i

Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 3 of 69

1 2 3 4 5 6 7 IV. 8 9 10 11 12 13 14 15
v.
16 17 18 19
VI. 20 21 22 23 24 25 26

D. The April!, 1998 Confidential Inmate Debriefing Report .................... 20 1. The False Cellmate Assault Account ............................... 20 2. The Other Implausible and Discredited Accounts of Gang Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
E. The Validation Evidence in Overview .................................... 23 F. CDCR's Investigation and Evaluation of the Validation
Evidence ........................................................... 27 THE PRISON GANG VALIDATION PROCESS ................................ 30 A. The Secret 1993 Validation at SCC ...................................... 30 B. The 1996 Revalidation at DVI .......................................... 31 C. The Failure of Any Meaningful Periodic Review ........................... 33 D. The Continued Failure of Meaningful Review at
Pelican Bay ........................................................ 33 E. Lira's April 1998 602 Appeal .......................................... 34 F. Lira's April2000 Inactive Gang Review .................................. 35 G. The Validation Process in Overview ..................................... 36 LIRA'S PELICAN BAY SHU EXPERIENCE ................................... 41 A. The SHU Confinement Regime ......................................... 41 B. Lira's ''No Good" Status and Deteriorating Mental Health .................... 44 C. The Groundless Deadly Weapon Charge .................................. 45 LIRA'S POST-PELICAN BAY SHU CONTINUING CONFINEMENT AND MENTAL HEALTH HISTORY ........................... 46 A. Emotional Problems on Release from Pelican Bay .......................... 46 B. Lira's Diagnosis and Treatment by CDCR Mental Health
Personnel .......................................................... 47 C. Dr. Haney's Evaluation and SHU Syndrome ............................... 49 D. Dr. Good's Diagnosis and Opinion as to Cause ............................. 50 E. Dr. Goldyne's Expert Testimony ........................................ 52

ii

Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 4 of 69

1 VII. REMEDIES-- DECLARATORY JUDGMENT AND EXPUNGEMENT ............. 56

2

A. Declaratory Judgment and Expungement as Authorized

Remedies .......................................................... 56

3

B. Declaratory Relief and Expungement as Beneficial to

4

Lira's Mental Health ................................................. 58

5

C. Declaratory Relief and Expungement as a Mitigation of

Lira's Risk of Gang Reprisal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

6

VIII. CONCLUSION ........................................................... 61

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

iii

Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 5 of 69

1

TABLE OF AUTHORITIES

2 Federal Cases:

3 Baker v. Lyles, 904 F.2d 925 (4th Cir. 1990) .................................................. 12

4

Barnett v. Centoni,

5

31 F.3d, 813 (9th Cir. 1994) ................................................... 4

6 Broussard v. Johnson, 253 F.3d 874 (5'h Cir. 2001) .................................................. 23

7

Burnsworth v. Gunderson,

8

179 F.3d 771 (9th Cir. 1999) ............................................... 24, 53

9 Cato v. Rushen, 824 F.2d 703 (9th Cir. 1987) ................................................ 4, 11

10

Dawkins v. Peterson,

11

2007 WL 333818 (E.D. Cal.) ................................................. 35

12 Fendler v. United States Parole Comm., 774 F.2d 975 (9'h Cir. 1985) .................................................. 54

13

Giano v. Kelly,

14

2000 WL 876855 (S.D.N.Y.) ........................................... 25, 38, 39

15 Gomez, 1993 WL 341282 (N.D. Cal. 1993) ............................................ 11

16

Guizar v. Woodford,

17

2008 WL 2403000 (9th Cir.) ............................................ 34, 36, 37

18 Hewitt v. Helms, 459 U.S. 460, 473-76 ..................................................... 3, 36

19

Hyson v. Neubert,

20

820 F. Supp. 184 (D.N.J. 1993) ............................................... 22

21 Jackson v. Carey, 2006 WL 2827319 (E.D. Cal.) ................................................ 36

22

Johnson v. Greiner,

23

2007 WL 2844905 (S.D.N.Y.) ............................................. 25, 38

24 Jones v. Clemente, 2004 WL 2624723 (D.Or.) ................................................... 23

25

Kyle v. Hanberry,

26

677 F.2d 1386 (11th Cir. 1982) ................................................. 5

i

Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 6 of 69

1

Lenea v. Lane,

2

882 F.2d 1171 (7'h Cir. 1989) ............................................ 4, 21,23

3 Lopez v. Valdez,

2007 WL 137801 (N.D. Cal. 2007) ......................................... 34,35

4

Madrid,

5

889 F.Supp. At 1228-37 ................................................ passim

6 Madrigal v. Ryder,

20097 WL 1686994 (W.D. Wash.) ............................................ 23

7

Maurer v. Los Angeles County Sheriff's Dept.,

8

691 F.2d 434 (9'h Cir. 1982) .................................................. 54

9 Medina v. Gomez,

1997 WL 488588 (N.D. Cal. 1997) ............................................ 13

10

Norman-Bloodsaw v. Lawrence Berkeley Laboratory,

11

153 F.3d 1260 (9th Cir. 1998) ................................................. 53

12 Pina v. Tilton, 2008 WL 47773564 (N.D. Cal.) .............................................. 36

13

Sandin v. Conner,

14

515 U.S. 472 (1995) ......................................................... 3

15 Sass v. Calif Bd. OfPrison Terms, 461 F.3d 1123 (9th Cir. 2006) ................................................. 25

16

Shipp v. Todd,

17

568 F.2d 133 (9th Cir. 1978) .................................................. 54

18 Sira v. Morton, 380 F.3d 57 (2d Cir. 2004) ............................................. 11, 24, 25

19

Smith v. McCaughtry,

20

1996 WL 137869 (7" Cir.) ................................................... 21

21 Smith v. Menifee, 2003 WL 1872668 (S.D.N.Y. 2003) ........................................... 22

22

Tapia v. Alameida,

23

2006 WL 842470 (E.D. Cal. 2006) .......................................... 5, 22

24 Taylor v. Rodriguez,

238 F.3d 188 (2d Cir. 2001) ................................................... 5

25

Tellier v. Scott,

26

2004 WL 224499 (S.D.N.Y.) ................................................. 38

ii

Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 7 of 69

I Tellez v. Peters,

1997 WL 51441 (N.D. Ill.) ....................................... 24

2

Thomas v. Mendoza,

3

2008WL1702501(E.D.Cal.) .................................... 11

4 Toussaint IV, 801 F.2d 1080 (9th Cir. 1986)

3,4,36,37

5

United States v. SweeneJ;',

6

914 F.2d 1260 (9 Cir. 1990) ..................................... 53

7

Walpole v. 472

uH.isl.l, 445

(1985)

.............................................

4

8

9

Wilkinson 545

vu. .As.us2t0in9,,

224

(2005)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

10 Zavaro v. Coughlin,

970 F.2d 1148 (2d Cir. 1992)

4,20,24

11

Zimmerlee v. Keeney,

.

12

813 F.2d 183 (9th Cir. 1987) .................................... 5, 37

13
Statutes:
14
§ 1983 ......................................................... passim
15 Cal. Code of Regs. Title 15, § 3341.5(c)(3) ............................................. 3
16 15 CCR §.3321· ................................................................. 13
17 3335(d)(2) ..................................................................... 35
18 3335(e) ........................................................................ 35
19 3341.5(c)(3) ................................................................. 37,41
20 15 CCR § 3378(c)(3)(B) ........................................................... 7
21

22

23

24

25

26

iii

Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 8 of 69

1 I. INTRODUCTION

2

Almost nine years ago now, in March 2000, Ernesto Lira sat in his solitary confinement cell

3 in Pelican Bay SHU and wrote out in his own hand the complaint that began this prison-inmate

4 §1983 civil rights action. Mr. Lira grieved many things, but the thrust of his complaint was that he

5 had been improperly validated by the California Department of Corrections and Rehabilitation

6 (CDCR) as a prison gang associate and on that basis had been wrongfully committed to indefinite

7 SHU confmement. Mr. Lira alleged that his confmement imposed severe hardship in deprivation of

8 his liberty interest under the Fourteenth Amendment, without affording him constitutionally required

9 due process and without a reliable evidentiary basis. Mr. Lira sought release from Pelican Bay SHU,

10 damages, and expungement of the validation from CDCR records.

11

By March 2000, Mr. Lira already had spent four and a half years in DVI Ad-Seg and Pelican

12 Bay SHU, and had spent all of those same years fruitlessly seeking basic information on what had

13 been his secret validation at Sierra Conservation Center (SCC) in 1993. Before ICC hearing panels

14 and in 602 appeals, Mr. Lira had repeatedly requested access to and investigation ofthe validation

15 evidence and a hearing to reevaluate his continued validation status.

16

Mr. Lira at that time had been in and out of prison several times over the past 15 years, but

17 his criminal history included only a series of theft offenses and drug possession. His entire criminal

18 and prison disciplinary record showed no violence or gang activity. Mr. Lira had never been a

19 member of any gang, including any prison gang, nor an associate of one.

20

Mr. Lira's most recent prison term had been spent at Sierra Conservation Center in 1992-

21 1993, a two-year sentence for shoplifting. He was assigned to the Calaveras yard at this Level I

22 facility, which had security much like a military base, including regular jobs for inmates in and out of

23 the facility, ample recreation and visitation privileges, and dormitory living.

24

When Mr. Lira returned to the system in 1995 on parole violation for drug possession, he was

25 processed through DVI and expected to return to SCC or some similar Level I facility. Instead,

26 Mr. Lira was confined to DVI's Ad-Seg on a lock-up order in December 1995, based on a record

No. C-00-0905 SI (pr) Plaintiffs Post-Trial Brief

l

Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 9 of 69

1 report that he was a validated Northern Structure associate and pending further investigation of his

2 status. As Mr. Lira only learned in the months following, he had been secretly validated by SSU in

3 July 1993, based on three evidence items collected by the IGI's office at SCC. Those items consisted

4 of a drawing with attributed gang symbols, a Merced County Jail yard incident report, and a laundry-

5 list debriefmg report. They were collected in a proactive gang investigation of Mr. Lira that was

6 initiated for reasons no one could explain and involved no real investigation of anything, including

7 the evidence items themselves, despite obvious and significant ambiguities and reliability concerns .

8 with each of them.

9

Following the December 1995 lock-up order, Mr. Lira remained in DVI Ad-Seg for nine

I 0 months while ICC officials confirmed his validation through his C-file, which finally arrived, and

II had the validation redocurnented by SSU with a new 128B-2 chrono. Then, in September 1996,

12 Mr. Lira was transferred to Pelican Bay SHU for indefinite confinement.

13

Pelican Bay SHU conditions have been the subject of prior civil rights litigation in this

14 District, and those conditions are well known, if not notorious. Madrid, 889 F.Supp. 1146, 1228-37

15 (N.D. Cal. 1995). Mr. Lira suffered from the extreme confinement, isolation and deprivation of SHU

16 imprisomnent for eight years, finally paroling in April 2004. His experience there included not only

17 all of the hardships institutionally imposed, but also special hardships, both from the anguish of his

18 wrongful confmenient and from the danger of violent Northern Structure reprisal he constantly faced

19 as a "no good" imnate who refused to affiliate with the gang.

20

Mr. Lira's SHU experience has caused him mental disorders since his release, and he has

21 suffered from their often disabling effects. Mr. Lira has been diagnosed with depression and PTSD,

22 and since 2005 has been under prescribed medication and treatment by CDCR mental health staff

23 and, more recently, by a private psychiatrist. Nevertheless, during the several times that Mr. Lira

24 carne back into the system for parole violation during 2005-2007, his continued gang validation

25 status returned him each time to either DVI Ad-Seg or Corcoran SHU.

26

No. C-00-0905 SI (pr) Plaintiffs Post-Trial Brief

2

Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 10 of 69

1

Mr. Lira's civil action has outlasted his Pelican Bay SHU imprisonment, and even his

2 discharge of sentence in March 2008. He has had to wage a litigation battle over many years just to

3 secure a trial, as CDCR has defended with serial motions for dismissal and serial motions for

4 summary judgment. Mr. Lira has even endured two prior appeals, one lasting three and a half years.

5

Along the way, Mr. Lira's release from custody has foreclosed his standing to seek

6 institution-wide injunctive relief as originally requested, and he was compelled to abandon his claim

7 for damages and dismiss all of the CDCR personnel originally joined as individual defendants in

8 order to moot CDCR's most recent interim appeal. The remedies he seeks now by way of

9 individualized injunctive and declaratory relief are limited but important: specifically, a declaration

10 that his validation and SHU/Ad-Seg confinement violated his Fourteenth Amendment rights, and an

11 expungement of the validation from CDCR records.

12 II. LEGAL TEMPLATE

13

It is now well established that prison inmates have a liberty interest under the Fourteenth

14 Amendment in avoiding the "significant and atypical hardship" of SHU confinement, that accords

15 them both substantive and procedural protections. Hewitt v. Helms, 459 U.S. 460,473-76 (1983),

16 rejected on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); Touissant v. McCarthy

17 (Toussaint IV), 801 F.2d 1080, 1099 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987), Wilkinson v.

18 Austin, 545 U.S. 209,224 (2005). This liberty interest derives in part from California state law and

19 regulation that substantively limits CDCR authority to impose administrative segregation, including

20 such confinement based on prison-gang affiliation. Toussaint IV, 801 F.2d at 1097-98; (fmding such

21 limitation in 15 Cal. Code Regs.§§ 3335(a), 3336 and 3339(a)); Madrid, 889 F. Supp. at 1271

22 (finding such limitation also in 15 Cal. Code Regs.§ 3341.5(c)(3)).

23

A. The Procedural Component

24

The procedural component of protection for this constitutional liberty interest has been held

25 to require that prison officials "provide the inmate with some notice of the charges against him and

26 an opportunity to present [the inmate's] view to the prison official charged with deciding whether to

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 11 of 69

1 transfer [the inmateJto administrative segregation." Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir.

2 1994). As applied to CDCR's gang validation process, these procedural protections have been

3 construed to specifically mandate the following:

4

(1) the inmate must be afforded the opportunity to present his views to the IGI prior to

5

any validation decision to commit him to Ad-Seg or SHU for an indeterminate period;

6

(2) the IGI must designate the inmate as being a current active member or associate of a

7

prison gang prior to any ICC decision to transfer or retain the inmate in Ad-Seg or

8

SHU indefinitely; and

9

(3) the validation and indefinite confinement must be re-evaluated periodically thereafter

10

through the annual ICC panel hearing process.

11 Toussaint v. McCarthy (Toussaint V), 711 F.Supp. 536, 540, 541-42, fu. 15, 543 (N.D. Cal.1984),

12 affd. in pt., rev'd. in pt. on other gds., 926 F.2d 801 (9th Cir. 1990); Madrid, 889 F. Supp. at 1273;

13 Jackson v. Carrey, 2006 WL 2827319, at *8 (E.D. Cal.)

14

B. The Substantive Component

15

The substantive component of protection for an inmate's liberty interest involved in

16 indefinite Ad-Seg/SHU confinement addresses the quantum and quality of gang validation evidence

17 relied on to support the confinement. Superintendent, Massachusetts Correctional Institution,

18 Walpole v. Hill, 472 U.S. 445,455 (1985). Specifically, the standard requires that any gang

19 validation be supported by "some evidence." !d.. Although this standard has been recognized as

20 only "minimally stringent," Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987), the evidence relied

21 on must be sufficiently unambiguous and meaningful to legitimately support the determination to

22 validate. Toussaint IV, 801 F.2d at 1103-06; Lenea v. Lane, 882 F.2d 1171, 1175 (7th Cir. 1989)

23 ("Although 'some evidence' is not much ... it still must point to the accused's guilt."); Zavaro v.

24 Coughlin, 970 F.2d 1148, 1152 (2d Cir. 1992) ("Notwithstanding such deference to the institutional

25 needs of prison officials, the Supreme Court has made it clear that those officials may not infringe on

26

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 12 of 69

1 prisoners' protected liberty interests through disciplinary proceedings without a certain quantum of

2 evidence to support their determinations.").

3

In addition, the Ninth Circuit has held that the evidence relied upon must have at least "some

4 indicia of reliability." Cato, 824 F.2d at 705. Tapia v. Alameida, 2006 WL 842470, at* 9 (E.D.

5 Cal.) (to support gang validation, supporting evidence must constitute '"some evidence' with an

6 indicia ofreliability." (emphasis in original)). When the evidence derives from confidential

7 informant reports, the record must contain "some factual information from which the committee can

8 reasonably conclude that the information was reliable." Zimmerlee v. Keeney, 831 F.2d 183, 186

9 (9th Cir. 1987), cert denied, 487 U.S. 1207 (1988); Taylor v. Rodriguez, 238 F.3d 188, 194 (2d Cir.

10 2001) (decision that prisoner was "safety threat" because of his association with prison gang was not

11 supported by "some evidence" where hearing officer made no independent assessment of

12 confidential informants' credibility). The importance of this specific protection was observed in

13 Madrid:

14

"[I]n a prison environment, where authorities must depend heavily upon informers to

report violations of regulations, an inmate can seek to harm a disliked fellow inmate

15

by accusing that inmate of wrongdoing. Since the accuser is usually protected by a

veil of confidentiality that will not be pierced through confrontation or cross-

16

examination, an accuser may easily concoct the allegations of wrongdoing. Without a

bona fide evaluation of the credibility and reliability of the evidence presented, a

17

prison committee's hearing would thus be reduced to a sham, which would

improperly subject an inmate accused of wrongdoing to an arbitrary determination."

18 889 F.Supp. at 1274 {quoting Kyle v. Hanberry, 677 F.2d 1386, 1390 (11th Cir. 1982)).

19

III. THE VALIDATION EVIDENCE

20

A. The Drawing With Hidden Gang Symbols

21

This photocopy of a prison drawing was taken from Mr. Lira's locker at Sierra

22

Conservation Center on December II, 1992 by Officer Robert Gordon, at the request of Assistant

23 IGI Milo Smith. (Ex. 9; Smith RT 225:6-226:7) It was one of a collection of photocopied drawings

24

that Mr. Lira had. The 128 chrono for this validation item, however, was not done until five months

25

later, on May 10, 1993. (Ex. 8) No one at trial, including Gordon and Smith, could explain the

26

delay, or where the drawing was during those five months, or why no one documented the purported

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 13 of 69

1 gang significance of the drawing when originally confiscated. (Smith, RT 226:24-ss7:21, 228:18-

2 229:10)

3

The chrono identifies only two gang symbols hidden in the drawing, the number "14" and the

4 "Northern Star." (Ex. 8) The Department during discovery and trial testimony identified a third

5 symbol, a Hue1ga bird. In addition, the chrono states that Mr. Lira "freely admitted" making the

6 drawing himself at the time of the locker search, and that his nickname "Chino" appears in the

7 drawing as well. (!d.)

8

1. The Obscurity of the Hidden Gang Symbols

9

There are obvious problems with the gang significance imputed to this drawing. Primary

10 among them is the inscrutability of these hidden symbols. The Huelga bird is shown in only partial,

11 fragmentary form, as what may be a stylized wing on the headband on one of the drawing's faces. 12 The purported name "Chino" is depicted also in the most fragmentary form on part of another 13 headband on a different face, showing what may be an "h," followed by an "i," followed by what 14 may be an "n." And almost no one at trial could find the "Northern Star." The search for it, through 15 a parade of CDCR witnesses, became increasingly creative, and even ludicrous, as trained prison16 gang investigators searched over copies of the drawing, some of them billboard-sized enlargements, 17 some of them shaded in advance to highlight the purported symbols, all in a vain effort to find this 18 one. (Ruff, RT 1423:25-1425:7; Smith, RT 242:5-11, Covello, RT 146:12-147: 10; Olson, 58:6-61:7. 19 89:5-(6)) This correctional version ofWhere's Waldo said much more about the obscurity of these

20 alleged gang symbols, and about CDCR's institutional mindset in perceiving gang significance in 21 cryptic, even impenetrable, validation items, than it said about anything else.

22

2. The Ambiguity of the Hidden Symbols

23

But the even larger problem with these imputed gang symbols is their thoroughly equivocal

24 character. The Huelga bird was originally created by the United Farm Workers as their union

25 symbol. (Smith, RT 236:24-237:1) It has become an icon in modem Hispanic American culture,

26 with deeper roots in the Aztec eagle of Mexican culture. Its presence in the social life of agricultural

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1 communities in California, including the Central Valley, has become familiar, even pervasive.

2 (Vasquez, Rule 26 Rept. and Witness Strut., 4: 11-19)

3

Likewise, the number "14," according to a number of CDCR personnel, refers to the letter

4 "N," the fourteenth letter of the alphabet, which in turn stands for "Norteno," or Northern California

5 Hispanic. (Smith, RT 231:7-232:14) Both the number "14" and the term "Norteno" are commonly

6 used for this general reference, with no necessary gang significance at all. (Vasquez, Ru1e 26 Rept.

7 And Witness Stmt., 4: 11-19) In addition, the number "14" is also used by innumerable street gangs

8 in Northern California, which a number ofCDCR witnesses also acknowledged.' (Smith, RT

9 233:15-19)

10

The Department repeatedly sought to support the gang significance of these perceived

11 symbols with testimony that the Huelga bird, the number "14," and the "Northern Star" are all

12 "associated with" the Northern Structure, since, despite their origination and continued currency in

13 popu1ar culture, they have been adopted by members of that gang as part oftheir insignia. (Ruff, RT

14 1425:9-17)

15

The problem with this analysis is that mere "association" between these symbols and

16 Northern Structure affiliation is wholly insufficient to establish any meaningful gang significance to

17 the drawing. CDCR's own regulations in effect in 1993, when this drawing was being evaluated by

18 Smith and Covello at SCC, required that tattoos or other symbols, in order to be acceptable as

19 validation items, had to be "used by and unique to specific prison gangs." 15 Cal. Code Regs.

20 § 3378(c)(3)(B)(emphasis added). (Smith, RT 243:1-244:25) The symbols imputed to this drawing

21 by CDCR unquestionably were not unique to the Northern Structure.

22

Despite this regulatory requirement, and relying solely on the drawing and accompanying

23 chrono without any further investigation, Smith decided to make it a validation "point" against Mr.

24

25

The Court need look no further than Exhibit 1 for illustration. This original,

handwritten version of the Merced County Jail yard incident report lists six different Nortenos as 26 involved, including Mr. Lira, and records their street gang affiliations as: "Norte 14 " (Lira and

Morales); "Visa 14 "(Hernandez); "NSW14" (Rivera); and "M14 er West Side" (Duran).

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 15 of 69

1 Lira. (Smith, RT 240:5-22) Smith made no effort to confirm whether Mr. Lira had in fact made the

2 drawing himself, or was even capable of making it, and made no effort to independently confirm that

3 these hidden symbols really had the gang significance ascribed to them. (Smith, RT 252:3-16)

4

3. The Mistaken Imputation of the Drawing to Lira

5

The value of this drawing as a validation item is made even more problematic by the

6 evidence at trial demonstrating that Mr. Lira did not draw it. It was drawn instead by another inmate

7 and former acquaintance of Mr. Lira's, Freddie Leyba, currently confined at Corcoran State Prison.

8 Leyba appeared and testified that he had made the drawing in the early 1990's and had given copies

9 of it to a number of other irunates, including Mr. Lira. (Leyba, RT 314:19-315:21) Leyba further

10 testified, consistent with his prior declaration from October 2007, that he had never intended to put

11 any hidden gang symbols in the drawing and did not believe that he had, (RT 316:17-317:5)

12 explaining that the drawing was "just a sketch of everything that I was thinking about at the time,

13 you know, doing time, thinking about my freedom ... getting out one day ... just prison life." (RT

14 316:6-13) The number "14" in the lower middle of the drawing was ')ust intended to mean

15 'Norteno' a Northern Hispanic. (RT 317:6-25) Leyba also confirmed that there is no "Northern

16 Star" in the drawing, (Ex. 113, 15), and that he made the drawing before he first met Mr. Lira, so that

17 the letters on the headband on the left of the drawing, which do not say "Chino" in any event, could 18 not refer to Mr. Lira.2 (RT 318:2-9; Ex. 113, 17)

19

As this evidence was developed at trial, CDCR shifted position, arguing that although

20 Mr. Lira's alleged creation ofthe drawing is noted as a point of special sigoificance in the chrono,

21 the drawing's actual creator- now that it is known to be Leyba's drawing- is entirely unimportant.

22 As CDCR personnel testified, there is no difference for gang validation purposes between an inmate

23

24

2

Leyba also confirmed that "during the time that I knew Ernesto Lira at ·sierra

Camp and after, he was not, to my knowledge, a member or associate of any prison gang,

25 including the Northern Structure." (Trial Ex. 113, 1 8) This confirmation of Mr. Lira's non-

affiliation with the Northern Structure is made all the more sigoificant by the disclosure through 26 CDCR's defense counsel at trial that Leyba himself, in years following his confinement at SCC

with Mr. Lira, became a validated member of the Northern Structure.

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 16 of 69

1 making the drawing and merely having the drawing in his possession. (Smith, RT 248:17-249:9,

2 253:19-254:14)

3

But of course that makes all the difference in the world, especially with a drawing as

4 hopelessly ambiguous as this one. If Mr. Lira made the drawing, and if indeed these are hidden gang.

5 symbols, then he was the one who did the hiding. If not, then Mr. Lira was likely to have had the

6 same difficulty as everyone else. in this trial even discerning these hidden symbols, let alone

7 regarding them as some cryptic prison-gang insignia.

8

CDCR's efforts to perceive validation significance in this drawing reached remarkable

9 lengths during trial. The Department adduced testimony from IGI Covello (and sought to

10 demonstrate this in questioning of Mr. Lira as well) that the face below the headband with "Chino"

11 supposedly on it looks in physical appearance just like Mr. Lira. (Covello, RT 447:11-24) Apart

12 from the fact that it does not (especially the photo of Mr. Lira from 1992 in Trial Ex. 298) that

13 defense counsel confronted him with in questioning), this simply cannot be so in view of Leyba's

14 testimony that the drawing could not refer to Mr. Lira because it was made before the two of them

15 met. Covello also testified that the design around the numeral "1" in the drawing was a four-leaf

16 clover, accounting for the "4" to go with the "1" to make up a "14." (Covello, RT 447:111-24)

17 The Rorschach quality of this whole exercise was probably best demonstrated by Covello's

18 testimony from deposition in which he identified the shapes of the noses on two of the faces at the

19 bottom of the drawing as somehow hiding even more gang symbols. (Ex. 115)

20

4. The Other Drawing

21

And then there is the issue of the other drawing, the Sombrero Hat Lady drawing. (Ex. 120,

22 p. 2) It is unclear when or how this drawing was first placed in Mr. Lira's C-file, but it appears to

23 have originated from Merced County Jail, where it was confiscated from a different inmate, Juan

24 Morales. This comes from a handwritten notation that appears to have been made originally on the

25 back of the drawing as confiscated but was then photocopied on a separate page as later forwarded to

26 CDCR. The notation reads: "This is a copy of a drawing that was confiscated from Morales, Juan

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 17 of 69

1 property during a cell search 12/6/91. Romero, R. 5340"3 (/d)

2

The obvious question raised here is whether this drawing was ever confused with Leyba's

3 drawing in the course oflater, periodic ICC reviews of Mr. Lira's validation, such as they were, at 4 DVI and Pelican Bay. This concern is made more palpable by the handwritten notation in the lower 5 right comer of the drawing, "See 128 B dated 5/10/93," which is a direct reference to the chrono for 6 the drawing by Leyba. (Ex. 8) No one from the Department could explain by whom, when, or why

7 that notation was made.

8

Mr. Lira discovered this Sombrero Hat Lady drawing during an Olsen review of his C-file at

9 Pelican Bay, and a related file memorandum states that the drawing was not used as support for his 10 validation. (Lira, RT 1025:16-1031 :12) But this review process went on at least annually for Mr. 11 Lira's entire confinement at Pelican Bay through April2004. The Department is in no position to 12 assure the Court that this drawing was not at some point, or possibly more often than that, confused

13 with Leyba's drawing and mistakenly relied on as part of the validation evidence. After all, the

14 Department's own gang expert Robert Marquez mistakenly seized on the Sombrero Hat Lady

15 drawing in his Rule 26 report as sufficient by itself to establish Mr. Lira's Northern Structure 16 affiliation, and not just as an associate but as a full member of the gang. (Marquez, RT 1840:19-

17 184:1)

18

B. The September 1992 Laundry List Debriefing Report

19

This informant inmate report was originally generated at DVI by Assistant IGI

20 RJ Hernandez, and a copy was sent to Mr. Lira's C-file at SCC by early 1993. (Ex. 4) The report is 21 a classic laundry list identification of Mr. Lira, who is merely named in a table listing some 30 22 inmates as gang affiliated according to the informant. Mr. Lira's own line entry in this laundry list

23 reads:

24

25

3

Unlike Leyba's drawing, this is a real prison gang drawing, with nothing at all

26 hidden about the gang symbols or insignia in it. The name of the prison gang, "Nuestra Raza," is

printed in the size of a barmer headline at the top. (Ex. 120)

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I

NUMBER

HOMETOWN STATUS

2

*

*

*

3

LIRA, ERNESTO

H-36693

CHINO

MERCED

NS CAT III

4 (Ex. 4, p.ll) Nothing else in the entire debriefing report, including its extended narrative text

5 detailing every gang-significant experience and aspect of the informant's prison career, makes any

6 mention of Mr. Lira or how the informant may have personal knowledge of his Northern Structure

7 affiliation.' (Hernandez, RT 334:9-235:2) According to Hernandez, any such information, if

8 provided by the informant, would have been in the text of the report and, if it involved actual gang

9 activity by Mr. Lira, would also have been separately documented in Mr. Lira's C-file. (Hernandez,

10 RT 370:19-373:15)

11

1. The Likely "Filter List" Source of the Laundry List Identification

12

That is not to say however, that the record is devoid of evidence as to how these laundry lists ·

13 are typically compiled. According to the testimony of several CDCR personnel, all Northern

14 Structure members are required to memorize lists of other member names and identifYing

15 information. (Marquez, RT 1786:2-24; Piland, RT 475:13-478:21) Such lists, sometimes referred

16 to as "filter lists," are passed around hand to hand within the prison system among Northern

17 Structure members for this purpose. (!d.)

18

It is hard to imagine a ranker form of hearsay than this. There is no way of knowing when

19 such a list was initially compiled, or from what source or sources, or by whom. There is also no way

20 of knowing whether or how a list was added to or changed in serial circulation, as it "filtered"

21

22

4

During direct examination ofCDCR's gang expert Marquez, an effort was made

to compare Mr. Lira's CDCR confinement history with that of the informant's, as detailed in his

23 debriefing report, to show at least some concurrent confinement in the same facility. The closest that Tristan could come to such an overlap was the period of several months in mid-1995 when

24 Mr. Lira had come back into the system on parole violation at DVI, and the informant was

housed there at the same time. However, Mr. Lira was in the reception part of the mainline at the

25 facility, and the informant, as a validated gang member, was housed there in Ad-Seg. Tristan

conceded that the two of them never would have had any direct contact, as the informant was 26 only allowed out of his Ad-Seg cell in the custody oftwo guards. (Marquez, RT 1855:15-

1857:9, 1865:11-1866:24)

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I through who-knows-how-many other hands before it would have purportedly reached this informant.

2 The Ninth Circuit has spoken directly to this issue in Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.

3 1987), in which the Court ruled that an inmate statement relayed to correctional officials by a

4 confidential informant with no firsthand knowledge of the statement was deemed necessarily

5 insufficient to constitute "some evidence" supporting gang validation. Subsequent decisions have

6 followed this basic rule consistently, reaffirming that a confidential informant's reliability is

7 necessarily dependent upon the reliability of the information conveyed, and with no means of

8 verifying its accuracy - or in this case, even its source - no evidentiary significance can be

9 recognized. Thomas v. Mendoza-Powers, 2008 WL 1702501, at* 4 (E.D. Cal.); Sira v. Morton, 380

10 F.3d 57, 78 (2d Cir. 2004) (hearsay statement reported by confidential informant cannot constitute

II "some evidence" without independent assessment of statement's reliability; "[c]redible informants,

12 may, after all, unwittingly pass along suspect information from unreliable sources.").

13

2. The Need for Independent Verification of Informant Reliability

14

The reliability of confidential informants in the context of prison gang validation is a specific

15 requirement of the Fourteenth Amendment. Cato, 824 F.2d at 705. The reliability concerns that

16 support and inform this rule are reflected in past decisions of this District. Madrid, 899 F. Supp. at

17 1273-74. The potential for unreliability derives in substantial part from the debriefing process itself,

18 which inherently involves pressures on the debriefing inmate to overstate and falsely report his gang

19 involvement and broader knowledge, including the naming of other inmates as gang affiliated. As

20 the district court in Jones v. Gomez, 1993 WL 341282 (N.D. Cal. 1993) observed:

21

When ... prison officials base decisions to segregate for

administrative reasons on statements by unidentified informants, an

22

inquiry into the reliability of such statements is necessary for several

reasons. First, such statements often are gathered during "debriefing

23

interviews." Because producing information that appears useful to the

interviewer is often perceived by inmates as the only way to secure

24

release from segregation, there is high risk that the information may be

false.

25 Second, given the differences that arise between prisoners due to

26

jealousies, gang loyalties and petty grievances, and the unfortunate

discrete instances where guards seek to retaliate against prisoners, to

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1

rely on statements by unidentified informants without anything more to

establish reliability is worse than relying on no evidence: 'it is an open

2

invitation for clandestine settlement of personal grievances.'

3 1993 WL 341282, at *4 (quoting Baker v. Lyles, 904 F.2d 925, 934-34 (4th Cir. 1990), rehearing

4 denied en bane (Sprouse, J. dissenting).

5

Such hidden agendas and incentives for false identification of laundry-listed inmates were

6 frankly acknowledged by Officer Hernandez. As he explained, inmate informants are advised that

7 they must demonstrate their "sincerity" in electing to debrief by fully disclosing everything and

8 everybody they know from their own gang history. And informants are rejected for debriefing if they

9 do not recount enough gang involvement, and name enough other inmates, to satisfY their debriefers.

10 (Hernandez, RT 349:22-350:11, 352:11-20)

11

Among all the other pressures on a debriefing inmate, his most obvious inducement to relate

12 whatever he believes his debriefers want to hear is the continued indefinite SHU confinement that he

13 otherwise faces if he does not debrief. This inducement must be regarded as powerful for any

14 validated inmate, and overwhelming for at least some, since SHU confinement conditions are so

15 brutal, the continued confinement for many inmates is measured in years, even decades, and the

16 debriefmg process represents the only way out, short of death or parole. This pressure was also 17 frankly acknowledged by Hernandez as a dynamic in this informant's debriefing.5 (Hernandez, RT

18 350:12-20)

19

3. CDCR's Indicia of Reliability

20

By regulation, CDCR has established its own "indicia of reliability" for confidential inmate

21 debriefing reports, 15 Cal. Code Regs. §3321, and the September 1992 report cites three of them as

22 supporting the reliability of this informant. (Ex. 4, p.12) 15 Cal. Code Regs.§ 33321 (c)(2)(3) and

23

24

5

Curiously, and though the September 1992 debriefing report lists the informant

inmate's reasons for wanting to debrief- e.g. to devote more time to his family, to make a better

25 citizen of himself- the opportunity to be free of the grueling confinement and isolation of SHU

imprisonment is nowhere mentioned. (Ex. 4, p. 1) This follows a consistent and equally curious 26 pattern throughout the set of debriefing reports in the trial record. (Trial Exs. 51, p.l and 70, pp.

1-2)

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1 (4). Each of these, however, is of negligible; if any, value in demonstrating the reliability of Mr.

2 Lira's laundry-list identification.

3

The first indicia of reliability noted, i.e., that the inmate "incriminated himself in the course

4 of the debriefing process," is entirely imaginary. Official CDCR policy in 1992 mandated that

5 debriefing informants were not to be given Miranda warnings, for the specific purpose of precluding

6 any possibility of self-incrimination. This was admitted by Hernandez in his testimony, (Hernandez, 7 342:21-344:4) and was independently confirmed by the declaration of Lt. J. Briddle submitted by 8 CDCR in Medina v. Gomez, 1997 WL 488588 (N.D. Cal. 1997). (Ex. 102) In that case, the

9 Department successfully defended its inmate debriefing process against challenges on Fifth 10 Amendment grounds by affirmatively asserting that the process involves no risk of self11 incrimination. Medina, 1997 WL 488588 *5 ("existing procedural safeguards preclude the 12 possibility that a debriefing interview will later be used as a basis for a criminal proceeding and thus

13 adequately serve the policy underlying the Fifth Amendment").

14

The other two regulatory indicia of reliability noted in this debriefing report, i.e., that some of

15 the information in the report "has already proven to be true," or "has independently shown to be

16 true," also provide no meaningful assurance of reliability here. The only "information" identifiable 17 for either reliability factor, included at the end of the debriefing report, is a list of some 13 CDCR 18 incident reports regarding different gang activities and experiences related by the informant. (Ex. 4,

19 pp. 11-12; Hernandez, RT 344:10"345:9) But 11 of these 13 incident reports date from 1981 and 20 1982, and thus were already 10 years old at the time of the debriefing. (Hernandez, RT 345:10-14) 21 Moreover, 4 of the 13 reports concern incidents in which the informant himself was directly 22 involved, and for which the informant presumably was aware that incident reports had been 23 generated, rendering their "independent" quality questionable and their demonstration of reliability 24 questionable as well. (Hernandez, RT 345:17-349:3) But most importantly, 13 ofthese 13 incident 25 reports involve incidents that did not have anything to do with Mr. Lira. (Hernandez, RT 349:4-7)

26

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1

4. The Conflicted Meaning of the Laundry List Identification

2

The laundry list identification of Mr. Lira in the 1992 debriefing report is not only

3 unsubstantiated and likely sourced in unreliable hearsay, if sourced in anything at all, it is also

4 conflicting in its meaning according to the testimony of Department personnel. Thus, Officer

5 Hernandez and Sgt, Mark Piland (333:8-13; Piland, RT 478:24-479:6) testified that the "CAT Ill"

6 designation assigned to Mr. Lira in the laundry list, for which there is no explanatory key or legend,

7 identified Mr. Lira as a member of the Northern Structure prison gang. (Hernandez, RT) According

8 to CDCR' s gang expert Marquez, Mr. Lira's "CAT III" designation signifies a member of the

9 Northern Structure, but beyond that, a member ofthe highest rank or position ofauthority within the

10 gang. (Marquez, RT 1283:3-20) According to Lieutenant Michael Ruff, Mr. Lira's "CAT III"

11 designation means a high-ranking member of a prison gang, but a different gang, namely, the

12 Nuestra Familia. (Ruff, RT 380:3-381:22)

13

Needless to say, this menu of imputed gang membership roles and ranks offers much more in

14 the way of variety than coherence. How is the cryptic "CAT III" laundry list identification, coupled

15 with this explanatory testimony, supposed to be meaningful evidence that Mr. Lira was an associate

16 of the Northern Structure? Is that supposed to be some sort oflesser-included validation status?

17

5. CDCR's Amended Regulation Disallowing Laundry List Identifications as

Inherently Unreliable

18 CDCR changed its regulations on acceptable validation evidence items in January 2006,

19 pursuant to its settlement of Castillo v. Alameida, No. C-94-2847 (N.D. Cal. 1994), and under the

20 regulations as amended, laundry list identifications in debriefing reports are no longer acceptable.

21 Instead, debriefing reports now must not only name an inmate as gang-affiliated, but in addition:

22

Staff shall articulate how the information specifically relates to the

23

inmate's involvement with the gang as a member or associate. The

information may be used as a source ofvalidation if the informant

24

provides specific knowledge of how he/she knew the inmate to be

involved with the gang as a member or associate.

25

15 Cal. Code Regs. §3378 (c)(7)(H).

26

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 23 of 69

1 This was done out of recognition that laundry list identifications are inherently unreliable.6 CDCR

2 witnesses throughout trial were grudging in their acknowledgment of this, but the record evidence

3 developed during discovery in Castillo leading to settlement leaves no doubt of it. CDCR personnel 4 also noted in their testimony that the regulation as amended is only prospective in effect, (Marquez,

5 RT 1813:18-24) but there is nothing merely prospective about the inherent unreliability of laundry

6 list identifications that underlies this change in official CDCR validation policy.

7

c. The Aprill993 Merced County Jail Yard Incident Report

8

The report from the Merced County Sheriff Department of an April12, 1992 incident in the

9 yard ofthe Merced County Jail involved a fire-alarm evacuation of a cellblock which inadvertently

I 0 resulted in two Southern Hispanic or Sureno inmates released to the same jail yard as a number of

II Northern Hispanic or Norteno inmates. (Ex. 6) According to the report written by Sgt. Randolph

12 Romero who witnessed the incident, a group ofNorenos, including Mr. Lira, approached the Surenos

13 and questioned them about their tattoos and gang affiliation in a challenging manner. No violence

14 ensued, and the group was shortly dispersed by the guards and led back to their cells. CDCR relies
15 on the report as evidence that Mr. Lira associated with a validated gang member who was also in the

16 Nortenol inmate group. The report also quotes Mr. Lira as commenting to

17 Sgt. Romero as the altercation was broken up, "Come on Romero. All we wanted to do was play

18 with them a little awhile. You know when we go to the 'pen' they (meaning Surenos) rushes from

19 the gate." (Ex. 6) CDCR relies on this as a self-admission by Mr. Lira of gang affiliation.

20

1. The Two Versions of the Report

21

This incident report is problematic as prison gang validation evidence in many ways. As a

22 threshold problem, there are two versions of the report, and they are very different. The report relied

23 on by CDCR, the typed version dated April 23, 1993, was prepared by Sgt. Randolph Romero a full

24 year after the incident, and in response to a phone call from Milo Smith at SCC soliciting any gang

25

26

6

See Declaration ofM. White re: Opp. to Def.'s in Limine Motion No.2, Ex. A

(deposition of Ernest Madrid, Nov. 7, 2003, Vol. I, 64:6-70:25).

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 24 of 69

1 information Merced County Jail may have had on Mr. Lira. (Romero, RT 388:7-25)The typed report

2 highlights Mr. Lira's role as a leader of the Nortefto inmate group, his threats and intimidation of two

3 Surefto inmates, and also quotes Mr. Lira as speaking to Romero purportedly in some gang

4 leadership role as the incident was broken up.

5

The other version of the report, also authored by Romero, was a handwritten account of the

6 yard incident prepared that day or the day following. (Ex. 1) This contemporaneous version has

7 none of the high-profile description of Mr. Lira as an organizer of the confrontation and gang

8 spokesman that was added to the typed version a year later. Mr. Lira is instead merely listed as one

9 of six Nortefto inmates involved, described as a member of two purported street gangs, "VPX" and

10 "Norte 14." (!d.) The original handwritten version names inmate Daniel Hernandez and validated

11 Northern Structure member Juan Morales as the two instigators of the encounter with the Sureftos. 12 The typed version instead names Lira and Morales as the instigators.7

13

Romero testified at trial regarding the two versions of his report and the yard incident itself.

14 He confirmed that he put down in his original handwritten report everything he thought was

15 significant to document regarding the incident, making the year-later description of Lira's allegedly

16 central role even more conspicuous in its absence. (Romero, RT 378:3-380:10) Under either

17 version of the report, this incident was brief, even momentary, did not result in any violence or even

18 physical contact, and was quickly broken up by the guards when Romero noticed it developing and

19 radioed for backup. (Romero, RT 386:24-388:1) As plaintiffs gang validation expert Dan Vasquez

20 testified, this was too inconsequential to have any prison gang significance, and does not constitute

21

22

23

7

Mr. Lira's own account was that he was let out into the yard along with the other

inmates in his cellblock when smoke intruded from the electrical fire in the adjacent block. After

24 milling around for a few minutes, he began playing pickup basketball with several other inmates.

Mr. Lira was not part of any group ofNorteftos who confronted the two Surefto inmates, and after

25 awhile he was led along with everyone else back to the cell block. (Lira, RT 507:15-512:11)

Questioned at trial about his alleged association with inmate Morales, Mr. Lira testified that he 26 knew of him from being housed in the same cellblock for months, but never associated with him

at the county jail or otherwise. (Lira, RT 553:6-558:2)

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 25 of 69

1 any evidence that Mr. Lira was an associate of the Northem Structure. (Vasquez, RT 1053:24-

2 1055:1)

3

2. The Mistaken Chrono Reference to Lira as a Northern Structure

Associate

4

There is also an issue about what the typed version of the report actually says about that. The

5

128 chrono for the report, prepared by Smith on May 10, 1993, begins by stating:

6

"On April 13, 1993 I received information from Officer Romero of the

7

Merced County Sheriffs Department, who identifies inmate Lira H-

36693 AKA 'Chino' 'to be an associate ofthe NORTHERN

8

STRUCTURE Prison Gang, and a member of the NORTE 14."

9 (Exh. 10, emphasis added)

10 This apparently comes from Smith's misreading of the typed report. (Smith, RT 265:9-25) The text

11 of the report includes a block of type listing serially the six Norteno inmates involved, including their

12 imputed gang affiliations. Romero used a slash mark as punctuation to separate each listed inmate

13 from the next, and Smith apparently read past that mark for Mr. Lira's listing:

14

"AS 3 BLOCK CAME INTO THEYARD THE FOLLOWING GANG

MEMBERS GROUPED TOGETHER AND STARTED TO SCAN THEYARD.

15

THE INMATES WERE, LIRA, ERNESTO, GEORGE, AKA 'CHINO' DOB 010664

CDC #C60918, NORTENO, M !4ASSOCIATE/NORTHERN STRUCTURE

16

MEMBER AND NF ASSOCIATE, MORALES, illAN AKA 'PULGA' DOB

021866 CDC# D02845....." (Exh. 6; emphasis added)

17

Thus, it now appears that Smith made a critical error in interpreting the typed report, which

18

he prominently recorded in the supporting 128 chrono he prepared for it, and which became a part of

19

Mr. Lira's validation package, along with the report itself. What is not known, and will never be

20

known, is the number of times over subsequent years that ICC hearing panels, inmate appeal

21

reviewers, and gang investigators have relied on this erroneous information in periodically

22

reconfirming Lira's validation. In this regard, it is significant to note that the Department's own

23

gang validation expert, Robert Tristan, acknowledged in his trial testimony that he made the same

24

mistake that Smith did when he himself first read the typed version of the report, and came to the

25

same erroneous understanding that it explicitly identified Mr. Lira as aNorthern Structure associate.

26

(Tristan, RT 1700:22-1701 :6)

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1

3. Sgt. Romero's March 8, 1998 Letter

2

The evidentiary value of the typed incident report as a validation item is made even more

3 doubtful by Sergeant Romero's subsequent letter of March 8, 1998. (Ex. 49) This was a letter that

4 Mr. Lira was able to secure when he rotated from Pelican Bay SHU back to Merced County Jail at

5 that time for re-sentencing on his conviction. By then, he had finally discovered that the typed yard

6 incident report was part of the validation evidence relied on by CDCR. Romero, when he learned of

7 this from Mr. Lira, agreed to write an explanatory letter to CDCR, which he then did and gave to Mr.

8 Lira. Written on Merced County Jail letterhead, and addressed "To Whomever It May Concern," the

9 letter read in full:

10

In checking with the Classification Department, we cannot fmd any

gang validation on Ernesto Lira in Merced County Jail. Lira is always

11

housed in general population with other Northern Hispanics, which is

the majority of our jail. I hope this letter will help clarify any

12

misunderstanding you might have. Thank you.

R. Romero, C.O.

13

(Ex. 49) Despite Mr. Lira's repeated efforts, the Department has never officially regarded this

14

Romero letter as having any significance to the yard incident report or the incident itself.

15

Departmental personnel at trial all sought to extenuate the letter as merely reporting that Merced

16

County Jail's own gang validation files did not record Mr. Lira as gang affiliated, while at the same

17

time leaving unaddressed the yard incident and its purported gang significance as described in the

18

typed report. (Tristan, RT 1706:15-1708:19)

19

But this is a strangely literalist reading of Romero's March 1998 letter. Clearly, Romero was

20

attempting to convey to CDCR that his typed report had been mistaken- or the subject of a

21

"misunderstanding" in Romero's words - in its import as evidence of Mr. Lira's prison gang

22

affiliation. As will be seen, the Department's myopic indifference to Romero's letter led subsequent

23

IGI investigators to conduct no investigation into the matter.

24

25

26

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1

4. Sgt. Romero's Declaration and Trial Testimony

2

This is all the more regrettable in view of Romero's declaration in this litigation, secured in

3 October 2007, as well as his testimony during trial, in which he explained that Mr. Lira was known

4. to the Merced County Jail as a Nortefio, and that at the time of the yard incident in April1992,

5 authorities there had no evidence that he was a prison gang member or associate. (Romero, RT

6 417: 18-24) As to the yard incident itself, Romero testified that it involved a brief encounter between

7 Nortefio and Surefio inmates that was quickly broken up, with no difficulty in avoiding any trouble,

8 and no fights started. (Romero, RT 399:3-8) Romero also testified that there was nothing he saw

9 Mr. Lira do that indicated he was trying to instigate a fight, that he could not say that Mr. Lira was

10 trying to start trouble, nor could he say that Mr. Lira was a problem maker at the incident. (Romero,

11 RT 417:8-17) Turning to his March 1998letter to the Department, Romero testified that he didn't

12 think Lira was a gang-hanger and had no reason to believe he was a prison gang member or

13 associate. (Romero, RT 417:18-24)

14

D. The April I, 1998 Confidential Inmate Debriefing Report

15

This informant debriefing report was generated at Pelican Bay in March 1998, but was not

16 used to continue Mr. Lira's validation on active status until April2000. (Ex. 51) The report

17 includes several accounts of gang activity by Mr. Lira. The most serious, as Assistant IGI Brian

18 Fielder acknowledged, is the account of Mr. Lira assaulting and "beating" a new cellmate at the

19 direction of a non-validated gang inember. The account includes other details, confidential but

20 known to the Court, regarding the somewhat elaborate circumstances and planning interactions

21 leading to the directed assault, as well as its gang-significant aftermath.

22

1. The False Cellmate Assault Account

23

This entire account, however, has now been shown to be a fabrication. Exhibit 44 includes a

24 chronology of Mr. Lira's cellmate history at Pelican Bay SHU, generated by CDCR. (Ex. 44, p. 3) It

25 shows that, during the timeframe for the assault as described in the debriefing report, Mr. Lira had

26 only two cellmates. The frrst, Anthony Montoya, became Mr. Lira's cellmate on the first day he

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 28 of 69

1 arrived at Pelican Bay on September 25, 1996, and so could not have been the assault victim as

2 described in the report. The second, Anthony Ramirez, was Mr. Lira's cellmate for just one day, on

3 October 7, 1997. Guard activity logs for that date, maintained both for Mr. Lira's isolation pod and

4 unit, include entries that Mr. Lira and Ramirez were engaged in a "fight" in cell124 at 11 :20 a.m..

5 (Ex. 44, pp. 6 and 8)

6

It is now known what exactly did and did not occur in this incident, because SHU staff

7 initiated the 115 disciplinary charge and proceeding against Mr. Lira and Ramirez over it. Exhibit 45

8 is the 115 investigation hearing report dated October 31, 1997, which shows that what actually

9 occurred was nothing more than a loud argument over move-in space between the two. The incident

10 began when guards came to Mr. Lira's pod and tried to convince him to take on a new cellmate,

11 Ramirez, from an adjoining pod. (Ex. 45) Mr. Lira was reluctant but tentatively agreed. Ramirez'

12 property cart was brought in, and as Ramirez was unloading it, an argument began, and Mr. Lira told

13 Ramirez to get out of his cell. A minute later, the guards returned and led Ramirez and his cart

14 away. (Jd.)

15

This actual account of the incident is documented in the 115 record, developed following a

16 full investigation, including interviews of the involved guards, Ramirez and Mr. Lira, and a formal

17 hearing at which all of them testified. The final determination of the 115 hearing panel included

18 specific findings that the record did "not contain any evidence that physical contact was made by

19 either inmate," nor any evidence of "an argument or any sign of hostility between LIRA and

20 RAMIREZ." (Ex. 45, p. 4) On this basis, the charges of mutual combat were dismissed entirely and

21 the matter closed. (Ex. 45, p. 4)

22

Now that this evidence has emerged to show that the principal charge against Mr. Lira in the

23 April 1998 debriefing report is fictional, CDCR has once again sought to shift ground, adducing

24 testimony from its own personnel that all manner of cellmate assaults occur that are never detected

25 by guards at the time. (Fielder, RT 642:7-24) From this, the Department now implies that such an

26 undetected assault likely occurred here, and this. likely explains the debriefing report account of one

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 29 of 69

1 as some incident separate from Mr. Lira's October 7, 1997 altercation with Ramirez. But this is

2 nothing but wishful speculation by CDCR- an attempt to conjure an undetected cellmate assault on

3 an undetected cellmate, which is not only unsupported but plainly refuted by the trial record.

4

2. The Other Implausible and Discredited Accounts of Gang Activity

5

The Aprill998 debriefing report includes other charges against Mr. Lira, i.e., that he taught

6 the Northern Structure "bonds" to other inmates and that he wrote a threatening letter to the

7 informant's mother. (Ex. 51, pp. 4-6) But these are implausible on their face,' and more

8 importantly, the demonstrated falsity of the cellmate assault account vitiates any credibility these

9 further accounts from the same informant could otherwise have. Here is an informant who related

10 what turns out to be a made-up and rather elaborate story about Mr. Lira attacking and beating a new

11 cellmate, a story the informant either passed on from others or invented himself. How can anything

12 else he relates against Mr. Lira in this same report be given any credence?

13

Diana Crandall, the Assistant IGI who prepared the debriefing report, testified that she always

14 investigated every allegation by an informant involving any other inmate, and would only include it

15 in the report if it could be independently verified. (Crandall, RT 92:12-93:4) But while this may

16 have been Crandall's usual procedure- and certainly reflects the way such allegations ought to be

17 addressed in this debriefing process - it is clear that no such investigation was conducted here as to

18 the cellmate assault allegation. Fielder testified that 115 documentation for disciplinary proceedings

19 that result in a dismissal of charges are permanently archived in Sacramento at CDCR's registry.

20

8

The account of Mr. Lira's mailing of a threatening letter to the debriefing inmate's

21 mother is particularly strange. Inmate mail at Pelican Bay during this period was screened

closely for gang-related communications, including threats. (Fielder, RT 646:20-648:6) 22 According to the debriefmg account, this letter would have been screened twice, first when Mr.

23

Lira inexplicably mailed it to the mother, and then a second time when the mother inexplicably mailed it back. Searching for a way to explain how this could have happened, the Department

24 presented testimony from its own personnel at trial regarding the prison gang practice of sending

messages in secret (even invisible) code, though there was no explanation provided as to why

25 Mr. Lira or anyone would mail a threat in indecipherable form. Zavaro v. Coughlin, 970 F.2d

1148, 1152-53 (2d Cir. 1992) (disciplinary finding based on "blatantly implausible" statements

26 by guard do not constitute "some evidence.")

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 30 of 69

I (Fielder, RT 624:4-625:15) Crandall apparently never checked this source. It is fair to wonder how

2 much investigation she conducted into these other allegations as we!U

3

E. The Validation Evidence in Overview

4

In summary then, what CDCR's 17-years' worth of collected gang evidence on Mr. Lira

5 amounts to is just these four items:

6

I. A drawing by another inmate with no intended and no apparent gang insignia, let

7

alone any "unique to" the Northern Structure.

8

2. A yard incident report from Merced County Jail regarding a momentary encounter

9

between inmates that involved no violence or even physical contact, a report which turns out

I 0

to be a recreated and substantially altered version of the original report from a year before,

11

and for which the author of both reports has repeatedly disclaimed any prison-gang

12

significance regarding Mr. Lira's own involvement in the incident.

13

3. A laundry list debriefmg report with no corroborating information as to Mr. Lira's

14

cryptically identified gang affiliation- however that may be construed- which was likely

15

sourced in some "filter list" if sourced in anything at all.

16

4.

A later debriefing report from Pelican Bay in which Mr. Lira is related to have beaten

17

a new cellmate as a gang-directed assault, an account that has now been shown by CDCR' s

18

own contemporaneous records to have been a fiction.

19

As earlier discussed, the "some evidence" standard requires that the information offered must

20 satisfy the two basic criteria that all evidence must satisfy to be evidence. First, it must be 21 meaningful, i.e., it must have probative significance by making more likely some fact in issue.10

22

23

9

The inmate debriefing report reflects that Crandall conducted a cell search for the

alleged threatening letter and other "gang materials" that Mr. Lira allegedly kept hidden in his

24 books and other possessions. The search turned up nothing. Crandall admitted in her testimony

that verifying allegations about threatening letters and teaching other inmates the Northem

25 Structure bonds "is difficult to do." (Crandall, RT 96: 14-18)

26

10

See Smith v. McCaughtry, 1996 WL 137869, at* 4-5 (7th Cir.) (unpub.)

(continued ... )

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 31 of 69

I Second, it must be reliable, i.e., it must have some demonstrated basis for believing that the 2 information is accurate and derives from some source that can be regarded as trustworthy for this 3 purpose."

4

None of these four validation items satisfies either of these two basic requirements.

5

The drawing is not meaningful because it is thoroughly ambiguous in its significance, even

6 inscrutable, as a drawing with hidden gang symbols. Moreover, the drawing can hardly be

7 considered reliable evidence of something that Mr. Lira "freely admitted" making himself now that

8 imnate Leyba has testified that he made the drawing and that he intended no gang insignia in it.

9 Smith v. Menifee, 2003 WL 1872668, at* 2 (S.D.N.Y. 2003) ("'Some evidence' that is fantastical or

I 0 directly rebutted by exculpatory evidence is essentially no evidence at all.")

II

The yard incident report from Merced County Jail is not meaningful evidence of Mr. Lira's

12 prison gang association for several reasons. First and foremost, the author of the report, Sgt.

13 Romero, has repeatedly disclaimed any prison gang significance to Mr. Lira's involvement in the

14 incident, in both correspondence to CDCR ten years ago and more recently in his declaration and

15

16

10 (

•••

continued)

17

(discovery of concealed cancelled postage stamps in prisoner's cell did not constitute "some evidence" that prisoner violated disciplinary rule prohibiting "knowingly mail[ing] or

18 attempt[ing] to mail any letter" with canceled postage stamp; "a finding of guilt based upon no evidence is a substantive due process violation.");

19

See also Tapia v. Alameida, 2006 WL 842470, at* 9 (E.D. Cal.) (validation

evidence relied on, address book purportedly containing names and addresses of three Mexican 20 Mafia associates, did not constitute "some evidence" where defendants admitted in discovery that

21

two of the names were not written in address book and there was no other evidence that plaintiff ever corresponded with either, and third person was in book, but was not validated at time

22 plaintiff knew him).

23

11

See Gomez v Kaplan, 964 F. Supp. 830, 834-35 (S.D.N.Y. 1997) (disciplinary

conviction for stabbing another imnate not supported by "some evidence" where hearing officer

24 did not make independent assessment of confidential informant's credibility); Hyson v. Neubert,

820 F. Supp. 184, 189-90 (D.N.J. 1993) ("some evidence" did not support disciplinary finding

25 that plaintiff possessed knife when hearing officer relied on corrections officer's report which

recounted in "completely conclusory terms" accusations made by two confidential informants, 26 there was no evidence that they had past record of reliability, and hearing officer made no

independent evaluation of their credibility).

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 32 of 69

1 testimony at trial. The typed version of the report relied on by CDCR also presents serious issues of

2 reliability, given its year-later creation at the request of Assistant IGI Smith and its marked

3 differences from the original handwritten, contemporaneous version. Past cases have dealt with ·

4 similar situations in which the actual circumstances of an alleged incident are questionable in

5 significance and unreliably substantiated, and courts have consistently found the some evidence

6 standard unsatisfied on such a record. 12

7

The September 1992 laundry list debriefing report is not meaningful because it is not known

8 what this laundry list identification is actually supposed to denote, with three different versions of it

9 from CDCR witnesses, none of which involves an identification of Mr. Lira as a Northern Structure

10

11

12

See, e.g., Lenea v. Lane, 882 F.2d 1171, 1175-76 (7th Cir. 1989)(affrrming grant

of summary judgment to plaintiff and order requiring expungement of disciplinary conviction for 12 aiding and abetting other inmates' escape from prison chapel; fact that plaintiff was in chapel at

13

time of escape was not evidence of gnilt because he worked in chapel and his admission that he knew both escapees "is only marginally relevant since both had visited the chapel on earlier

14 occasions. Further, it is hardly incriminating for one prisoner to admit he knows another. ... If this 'evidence' proves anything, it proves only that Plaintiff had the opportunity to aid an escape.

15 It is not even a modicum of evidence that he did so.") (emphasis in original);

Broussard v. Johnson, 253 F.3d 874, (5th Cir. 2001) (disciplinary fmding of

16 attempted escape based on confidential informant's hearsay statement that inmate had hidden bolt

cutters in kitchen area to which one hundred other inmates had access did not satisfY "some 17 evidence" standard where no evidence supporting his reliability was presented to hearing officer).

18

Madrigal v. Ryder, 2007 WL 1686994, at *2-3 (W.D. Wash.) (granting inmate's

motion for summary judgment as to his claim that his disciplinary conviction for attempted

19 escape was not supported by "some evidence"; only evidence supporting charge was that plaintiff was in an unauthorized area (the prison hallway near visitors area) without his ID badge; but

20 defendants "also knew, and do not contest, that Plaintiff was told to go into the hallway by a

corrections officer, that the hallway was still within the security perimeter of the institution, that 21 Plaintiff had his toddler child with him, that Plaintiffs' wife remained in the visitor area, and that

22

Plaintiff immediately returned to the visitor area when asked to do so."); Jones v. Clemente, 2004 WL 2624723, at* 8 (D. Or.) (inmate's disciplinary

23 conviction for assaulting guard by injuring her hand was not supported by "some evidence" where guard's misbehavior report stated that inmate had "attempted to break our grip by kicking

24 and moving his body around" while he was being removed from his cell (for which he received other convictions), but mentioned no injury, and although guard was treated by prison nurse for

25 injury to her hand at approximately same time, guard never claimed that plaintiff had injured her

and none often witness statements said that plaintiff injured her hand). 26

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 33 of 69

I associate. This debriefing report identification is also unreliable, indeed, inherently unreliable, as

2 recognized by CDCR itself in amending its validation regulations effective January 2006 pursuant to

3 the Castillo settlement. Gilanian v. City ofBoston, 431 F. Supp. 2d 172, 177-178 (D.Mass. 2006).

4 See Sira v. Morton, 380 F.3d 57, 76, 81 (2d Cir. 2004) ("In a recent discussion of the 'some

5 evidence' standard, this court observed that only 'reliable' evidence can constitute 'some evidence.'

6 The principle is not new. A reliability inquiry has long been required when confidential source

7 information is relied on to satisfY the 'some evidence' standard."); Tellez v. Peters, 1997 WL 51441,

8 at* 9 (N.D. Ill.) (disciplinary conviction for attempted escape not supported by "some evidence"

9 where committee's finding of guilt was based on confidential informants whose reliability had not

I 0 been independently assessed).

II

Moreover, this laundry list identification is most likely grounded in "filter list" hearsay,

12 which necessarily fails the "some evidence" standard. Cato, 824 F.2d at 805; Sira v. Morton, 380

13 F.3d 57, 75-78 (2d Cir. 2004) (hearing officer's "failure to probe and assess the totality of the

14 circumstances in assessing the reliability of third-party hearsay information disclosed by confidential

15 informants," instead relying only on confidential informants' past record for credibility, meant that

16 "some evidence" standard was not satisfied as ~atter of!aw.)

17

The April1998 debriefing report is not meaningful evidence because it is not true. It has

18 been independently shown to report false information about a gang-directed cellmate assault that

19 never occurred. Johnson v. Greiner, 2007 WL 2844905, at* II (S.D.N.Y) ("some evidence"

20 standard not met where plaintiff "thoroughly undermined" one confidential informant's credibility by

21 proving that plaintiff had not attended any of meetings at which informant alleged he had committed

22 wrongful acts and other informant's allegations were merely conclusory). It is also unreliable for that

23 same reason , and also because there is no independent corroboration for the other implausible

24 charges against Mr. Lira in the report. 13

25

26

13

See Zavaro v. Coughlin, 970 F.2d 1148, 1152-53 (2d Cir. 1992) (affirming grant

(continued ... )

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1

F. CDCR's Investigation and Evaluation of the Validation Evidence

2

The "some evidence" standard is an objective one. Sass v. Calif Bd. OfPrison Terms, 461

3 F.3d 1123, 1129 (9th Cir. 2006) (to satisfY "some evidence" standard, decision must "have some basis

4 in fact"; without "some evidence" "the state could interfere with a liberty interest ... without support

5 or in an otherwise arbitrary manner."). Though sometimes cast in terms of what a responsible

6 correctional officer would make of the evidence as proof of gang affiliation, the some evidence

7 standard obliges the trial court to make its own evidentiary assessment, independent of any

8 assessment made by prison staff during the validation process. Their subjective view of the

9 validation items and their gang significance is, accordingly, oflimited if any probative value. !d.;

10 Giano v. Kelly, 2000 WL 876855, at* 19 (S.D.N.Y.).

11

Nevertheless, some note must be taken here ofthe subjective evaluations made by CDCR

12 personnel of the four validation items procured and used against Mr. Lira, as their evaluations reflect

13 a consistent pattern of institutional bias towards construing these items as meaningful and reliable

14 evidence of Mr. Lira's association with the Northern Structure, even in the face of conflicting

15 evidence demonstrating otherwise. Some examples from the trial record:

16

I. Assistant IGI Smith testified that Mr. Lira's criminal history would be highly significant if

17 it showed any prior convictions for violence or prison gang activity, and likewise Mr. Lira's prison

18 disciplinary history. (Smith, RT 212:17-213:11) However, the complete absence of any violence or

19 gang activity in Mr. Lira's entire criminal and prison disciplinary history, according to Smith, would

20

21

1 \

•• continued)

of summary judgment for inmate; disciplinary finding that plaintiff had participated in messhall 22 riot, based only on three guards' statements that "every inmate in the mess hall" had participated,

23 was not "some evidence"; such statements "are so blatantly implausible when taken literally that they do not constitute even 'some evidence' of a particular inmate's guilt."); See also Burnsworth

24 v. Gunderson, 179 F.3d 771, (9th Cir. 1999) (affirming order requiring Arizona DOC to expunge escape conviction from inmate's prison records; "some evidence" standard not met where only

25 evidence that plaintiff attempted to escape was plaintiffs statement to prison official that if he

were not placed in protective custody to protect him from some other inmates, he would be 26 forced to "hop the fence and run all the way to Tucson."; agreeing with district court that "there

was no evidence, much less 'some evidence"' supporting the charge of attempted escape.

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Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 35 of 69

1 have no significance at all. (Smith, RT 213:22-214:12); (Marquez, RT 1799:6-17)

2

2. According to the Department, the typed yard incident report from Merced County jail was

3 not called into question by the markedly different, contemporaneous handwritten version of the

4 report a year earlier. The glaring inconsistencies between them, according to both Department

5 personnel and experts, were not imprtant to their evaluation. (Smith, RT 273:2-11)

6

3. Department personnel testifYing on the September 1992 debriefing report acknowledged

7 that corroborating information for Mr. Lira's laundry list identification, either in the text of the report

8 itself or from any other source, would have been significant. At the same time, the actual absence of

9 any such corroborating evidence has no significance. (Hernandez, RT 362:2-363:2)

10

4. CDCR by regulation regards prison gang tattoos as important evidence of gang affiliation,

II and Marquez in his testimony presented graphic depictions of these as common and highly probative

12 of gang membership. (Marquez, RT 1774: 16-1778:9) Confronted with CDCR record evidence 13 reflecting that Mr. Lira has no tattoos of any kind, let alone gang tattoos, CDCR witnesses testified

14 that this is likewise insignificant. (Smith, RT 279:25-282:6)

15

5. The April 1998 debriefing report and its cellmate assault story have now been directly

16 refuted by CDCR's cellmate chronology and 115 disciplinary documentation of what turns out to

17 have been a shouting match. Yet, the Department's gang validation expert Marquez found no

18 inconsistency at all in these two accounts, heroically speculating that Mr. Lira may have decided to

19 fake an assault instead14 (Marquez, RT 1863:14-1864:12)

20

6. In what was possibly the most skewed construction of the record to shore up Mr. Lira's

21 validation, Marquez described the significance of one of the Northern Structure "bonds," no. 3,

22 which directs that "All Nortefio Soldados will strive for 'mainline' status." (Ex. 345) Marquez

23 explained that this means a Northern Structure member in SHU should resist debriefmg, but should

24 otherwise seek always to escape SHU confmement. In Marquez' expert opinion, Mr. Lira's 12-year-

25 14 Confronted with the specific statement in the debriefing report that Mr. Lira
26 "attacked him as soon as he came into the cell and beat him" (Ex. 51, emphasis added), Marquez explained that "it depends on what you mean by 'beat'."

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1 long inmate appeal and litigation struggle to challenge his gang validation as wrongful is actually,

2 though clandestinely, Mr. Lira's effort to follow this Northern Structure bond and thus proves that

3 his validation was proper. (Marquez, RT 1793:24-1797:1)

4

*

*

*

5

Overall, CDCR' s approach to collecting and evaluating evidence during its gang validation

6 process repeatedly reflects an institutional mindset that is skewed markedly, even aggressively,

7 towards imputing gang significance to validation evidence items on any perceived basis, real or

8 imagined. CDCR collects these items and prepares descriptive chronos for them with no real

9 investigation into any of the often patent inconsistencies and ambiguities in the items themselves,

10 and then doggedly resists any later effort to re-evaluate in the face of conflicting and even refuting

11 evidence.

12

This is all of a piece with the Department's overall approach to the basic concept of

13 validation. As explained by Assistant IGI Smith, his effort to process Mr. Lira's validation at SCC

14 in 1993 involved only a search for items that could be construed as validation "points," and once

15 three items or "points" were collected, they were made into a package and shipped off to SSU.

16 (Ruff, RT 1351:17-21) Smith testified that in this case, as was his practice, he never at any time

17 tried to take a step back and assess the three items he had gathered in terms of what, collectively,

18 they really demonstrated about Mr. Lira's possible association with the Northern Structure. (Smith,

19 RT 211:8-216:1) Was this really enough to justifY committing an inmate to Pelican Bay SHU for.

20 years of indefinite confinement? It never occurred to Smith to consider whether Mr. Lira, from a full

21 and fair view of his entire background, criminal history and prison experience, had the look and feel

22 of someone who was actually gang affiliated.

23

CDCR's implementation of its own gang validation policies and procedures is flawed by this

24 institutional mindset, and it readily explains how someone like Mr. Lira, an inmate with no record of

25 any violence or gang activity in his entire criminal and prison history, could be caught up in this

26

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1 process and validated with such spurious evidence, especially with the entire process conducted in

2 secret from him.

3 IV. THE PRISON-GANG VALIDATION PROCESS

4

A. The Secret 1993 Validation at SCC

5

Mr. Lira's prison gang validation was initiated in December 1992 at SCC with the search of

6 his locker and confiscation of the drawing. By May 1993, Assistant IGI Smith had collected three

7 evidence items against Mr. Lira, and these were made into a validation package along with a fourth

8 item, and sent with a transmittal chrono to SSU. 15 (Smith, RT 208:11-11 0:8) There, on July 2,

9 1993, Judy Olson reviewed the evidence items, found the three to satisfY Departmental requirements,

10 and endorsed Mr. Lira as a validated Northern Structure associate, generating a 128B validation

11 chrono to document the action. (Olson, RT 47:9-13) She made no further or independent

12 investigation ofthe evidence items, nor of Mr. Lira's alleged affiliation with this prison gang.

13 (Olson, RT 61:14-23)

14

All of this took place entirely in secret from Mr. Lira. The testimony at trial was unanimous

15 on this question as among Smith, Covello and Mr. Lira himself. (Smith, RT 211:5-7; Covello, RT

16 153:7-13; Lira, RT 316:20-317:6) No one ever advised Mr. Lira that the validation process had been

17 initiated or was ongoing. (Lira, RT 530:2-12) No one ever asked him any questions regarding any

18 of the evidence items as they were being collected and documented in 128 chronos. No one ever 19 granted Mr. Lira an interview with IGI Covello or any authorized representative, including Smith, to 20 show Mr. Lira the non-confidential evidence items, i.e. the drawing and yard incident report, and 21 advise him of the confidential debriefing report identification, so that Mr. Lira could provide his own 22 information about this evidence and request further investigation. Indeed, Mr. Lira paroled from

23

24

25 15 This fourth item was an April 1993 SCC informant report of alleged gang activity
26 at the facility which, according to the text of the report itself, was uncorroborated and unreliable. (Ex. 11, pp. 2-3) It was rejected as a validation item by SSU Olson, RT 68:11-69:13)

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1 SCC in May 1993, completely unaware that this validation already was well in progress.16

2 (Lira, RT 531:1-14)

3

Mr. Lira's first knowledge of this secret validation came two and a half years later, in

4 December 1995, when he returned to the system for parole violation on a charge of transporting three 5 grams of methamphetamine.17 (Lira, RT 531: 16-532:20) IGI staff at DVI turned up information on

6 the Department's data system that Mr. Lira had been validated as a Northern Structure associate.

7 That led directly to the December 28, 1995 114D lock-up order, placing Mr. Lira in Ad-Seg pending

8 further investigation and confirmation of his status. (Lira, RT 533:4-534:6)

9

Mr. Lira's reaction was direct and immediate. He protested that some mistake must have

10 been made, as he had never been affiliated with any prison gang and had never been validated as

11 such by CDCR. (Lira, RT 541: 1422) He protested his Ad-Seg confinement and requested some

12 access to or notice of the evidence that was being relied on for his reported validation.

13 (Lira, RT 536:5-18)

14

B. The 1996 Revalidation at DVI

15

Under both the Fourteenth Amendment and CDCR regulation, an imnate confined to Ad-Seg

16 for investigative reasons is to be given an ICC hearing promptly after initial confinement. 15 Cal.

17 Code Regs. § 3335(c) and § 3338(a); Toussaint IV, 801 F.2d at 1100. In this case, Mr. Lira's Ad-

18 Seg lock up was followed by months of non-hearings before one ICC panel after another, all of

19 whom informed Mr. Lira that his validation status could not be determined without his C-file and

20 that his C-file had not yet arrived at DVI, whereupon Mr. Lira would be led back to his cell after five

21 minutes. (Lira, RT 454:12-24, 536:20-537:13)

22

23 16 There is also no evidence that Mr. Lira was advised of the validation while on
24 parole following his May 1993 release. CDCR produced a copy of a March 21, 1994 parole
violation report as evidence of such notice, but the references to gang affiliation in the report do 25 not mention, or even fairly suggest, official gang validation by the Department. (Ex. 342)

26

17 This was to be Mr. Lira's. criminal charge and commitment offense, for which he

received a prison sentence in March 1996 of 11 years. (Lira, RT 532:20-533:7)

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1

This went on for six months, until June 1996, when Mr. Lira was informed at his monthly

2 ICC hearing that his C-file had finally arrived and was being reviewed. 18 (Ex. 25) Mr. Lira

3 continued to protest his confinement and demand access to the validation record and evidence items,

4 and DVI personnel continued to assure him that all of this would soon be cleared up. (Lira, RT

5 541:24-543:5; 544:18-545:2)

6

In the meantime, and once again in a process that was undisclosed to Mr. Lira, IGI staff at

7 DVI had re-sent Mr. Lira's original validation package back to Olson at SSU, not for the purpose of 8 conducting any re-investigation of Mr. Lira's validation status or its ~upporting evidence, but simply 9 and instead to fill out a new quarter-page chrono for the validation, now known as a 128B-2 chrono,

10 to replace the original. (Ex. 34) The only deficiency in the original validation addressed by this new

11 form was a purely technical record-keeping matter, specifically, the requirement from the intervening

12 decision in Madrid that validation records specifically identify each item of evidence relied on and

13 each, if any, rejected. Madrid, 889 F. Supp. At 1279. Olson was adamant in her trial testimony that

14 nothing more than that was done in her 1996 "re-validation" of Mr. Lira, and that she worked

15 entirely from the original validation package in performing this essentially clerical function. (Olson,

16 RT 66:2-68:10)

17

Once the new 128B-2 chrono came back from Olson to DVI, Mr. Lira's validation status

18 became certain and his Pelican Bay SHU confinement imminent. On September 17, 1996, Mr. Lira

19 appeared before an ICC panel at DVI for a fmal time. (JF 3:7-8) His continued protests and requests

20 for investigation and a hearing were once again rejected. Transfer to indefinite SHU confinement at

21 Pelican Bay was endorsed by the CSR on September 23, 1996, and Mr. Lira was transported the

22 following date to Pelican Bay SHU, where he would spend the next eight years. (JF 3:8-10)

23

24

25

18

Ad-Seg confinement at DVI was in someways worse than Pelican Bay SHU: Mr.

Lira's eight-foot-by six-foot cell was "filthy," and "it's just cement and a two-inch mattress ... 26 it's infested with mice, insects, cockroaches and the water is brackish brown." (Lira, RT 540:11-

541-12)

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I

c. The Failure of Any Meaningful Periodic Review

2

Nothing had been done by anyone at DVI in response to Mr. Lira's protests of wrongful

3 validation and requests for access to and re-evaluation of the evidence. The ICC hearings were

4 merely a series of empty formalities, with ICC panels spending six months telling Mr. Lira that they

5 had no means of even considering his grievances without his C-file, and then the next three months

6 secretly processing a new 128B chrono tore-document the validation. Mr. Lira filed two inmate 602

7 appeals at DVI, but they suffered the same one-two shuffle that played out before the ICC. Mr.

8 Lira's appeals were denied at the first level on the ground that the C-file was not yet available (Ex.

9 29, p.5), and then, once the new 128B-2 chrono was processed, appeals from that point on were

I 0 denied at higher levels on the ground that Mr. Lira's validation had been re-documented and nothing

II more was left to consider. (Ex. 29, pp. 7 and 9)

12

Lostin all of this was any consideration by anyone of Mr. Lira's complaints of secret

13 validation based on spurious evidence. Former Warden Edward Alameida testified that he denied

14 Mr. Lira's 602 appeals at the warden's level because he assumed that whatever grievances Mr. Lira

15 advanced had been addressed by SSU in there-documentation of the 128B-2 chrono. (Alameida, RT

16 580:7-581 :6) But that makes no sense at all. Olson at SSU was not even aware ofMr. Lira's 602

17 appeals, as Warden Alameida must have known.

18

D. The Continued Failure of Meaningful Review at Pelican Bay

19

The same history of meaningless ICC hearings and disregarded 602 appeals continued for

20 Mr. Lira at Pelican Bay. At Mr. Lira's very first ICC hearing following arrival there in September

21 1996, he once again protested his validation and SHU confinement and sought an investigation and

22 hearing into the supporting evidence. (Ex. 40) Mr. Lira was told in response that his only way out of

23 SHU confinement was to debrief, something Mr. Lira was in no position to do, as he repeatedly told

24 his ICC hearing panels, since he had never been gang affiliated to begin with. (!d.)

25

In October 1996, Mr. Lira was finally allowed during an Olsen review of his C-file to see and

26 obtain copies of the actual drawing and typed yard incident report. He was also finally provided with

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1 a 1030 disclosure form for the September 1992 debriefing report. (Ex. 41) This was the first time

2 Mr. Lira had obtained direct access to the non-confidential items or any information as to the

3 existence of the confidential third item -three and a half years after they had been used by CDCR to

4 covertly validate him as a Northern Structure associate.

5

In March 1998, as earlier discussed, Mr. Lira was rotated back to Merced County Jail for re-

6 sentencing and was able to speak with Sgt. Romero while there. When Mr. Lira explained that the

7 yard incident report was being used by CDCR as evidence of prison-gang affiliation and as a basis

8 for his SHU confinement, Romero wrote his March 8, 1998 letter. When Mr. Lira returned to

9 Pelican Bay and tried to present the letter to the next ICC panel he appeared before on March 13,

10 1998, the panel refused to consider it, advising Mr. Lira that he would have to file another 602

11 appeal to pursue the issue further. (Ex. 50)

12

E. Lira's April1998 602 Appeal

13

Mr. Lira then filed another 602 appeal in April 1998. (Ex. 52) It was assigned to Assistant

14 IGI Mark Piland at the first level. Piland testified at trial that he had no memory of the appeal.

15 However, a fax transmittal sheet sent by Piland to SSU for guidance on July 29, 1998 included this

16 handwritten notation:

17

One of the sources used for validation has been rescinded by the

author. A new source has been sent with this fax- see debrief page 4.

18 ·

[Yellow tag] Note this inmate has a 602 going!

19 (Ex. 53) This fax attached the Romero letter and the Aprill998 debriefing report. (Piland, RT

20 437:8-439:12) Evidently, Piland initially construed the Romero letter as disclaiming any prison gang

21 significance to the yard incident report, and he planned to withdraw that report and replace it with the 22 April1998 debriefing report, which apparently had been placed in Mr. Lira's C-file by that point. 19

23

But guidance came back from SSU in the form of a faxed response on August 3, 1998: "Old

24 source still usable to show assoc. Didn't redo 128B-2 based on in/d." (Ex. 53) Piland's report

25 19 That, at least, is what Piland told Mr. Lira was the plan at their only interview for
26 the appeal on July 30, 1998. (Ex. 52, EL 00698) Piland during that interview asked Mr. Lira no questions regarding the yard incident or the report.

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1 denying Mr. Lira's appeal at the first level four days later followed the same rationale, construing the

2 Romero letter as inconsequential since, although it reported no classification of Mr. Lira as gang-

3 validated at Merced County Jail, the letter did not deny the events of April24, 1992 as described in

4 the typed yard incident report a year later, and those events, in the Department's view if not in

5 Romero's, show gang association by Mr. Lira (Piland, RT 426:24-427:5)

6

Piland's only "investigation" of the Romero letter and the yard incident report involved

7 calling Romero, confirming that he had indeed written the letter, and hanging up. (Piland, RT 432:3-

8 16) It might have been thought that anyone in Piland's position, with or without special training as

9 an investigator, would have been curious enough to ask Romero to explain or reconcile the letter

I 0 with the typed incident report, given their apparent inconsistency. But that was not done, nor was

11 anything else done by Piland to investigate the matter. (Piland, RT 450:2-21) Mr. Lira appealed to

12 the warden's level, but this was denied by former Warden Joe McGrath on September 21, 1998, in a

13 statement of decision which noted that a"thorough investigation" of Mr. Lira's complaints and

14 concerns had been made. (Ex. 52, EL 00695)

15

F. Lira's April2000 Inactive Gang Review

16

Another year went by. Then, in November 1999, Mr. Lira's armual ICC hearing report

17 records that the hearing panel addressed again the issue of Romero's letter noting that it was

18 "potentially in conflict" with the yard incident report. (Ex. 61) The panel recommended to SSU that 19 the matter be investigated at Mr. Lira's next inactive gang status review.20 (!d.)

20

That review then followed in late March 2000, conducted by an Assistant IGI from DVI,

21 Brian Fielder, who testified at trial. Fielder related that he was part of a task force reviewing all six-

22 year-old validations ofSSU inmates at Pelican Bay for possible inactive status. (Fielder, RT 587:7-

23 590:4) His review of Mr. Lira's case consisted of a cell search, a check of criminal and prison

24 disciplinary records, and a check of various prison-gang control centers and databases, both state and

25

26

20

The ICC hearing report also notes that Mr. Lira protested this action, stating "how

can I be a non-active gang associate when I am not a part of this gang?" (Ex. 61)

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1 federal, none of which turned up any evidence of any gang activity by Mr. Lira over the past six

2 years. (Fielder, RT 594:9-597:9, Ex. 63) However, after reviewing Mr. Lira's C-file, Fielder noted

3 the April 1, 1998 debriefing report, and based on its allegation of a gang-directed cellmate assault,

4 recommended that Mr. Lira's validation be continued on active status. (Fielder, RT 593:8-594:5, Ex.

5 63) Fielder in his testimony made clear that he had no discussion with Mr. Lira regarding the April

6 1998 debriefing report or its allegations. (Fielder, RT 616:5-618:24) Fielder also made clear that his

7 review included no investigation or re-evaluation of the original three validation evidence items. He

8 made no attempt to address, and was not even aware of, Mr. Lira's complaints and concerns

9 regarding this evidence, including those based on the March 1998 Romero letter.

10

G. The Validation Process in Overview

11

The trial record has now detailed the history of Mr. Lira's validation and continued validation

12 by CDCR over many years, and reveals a complete failure to accord Mr. Lira any of the procedural

13 rights to which he was entitled as an inmate facing indefinite SHU confinement based only on his

14 validation status.

15

Mr. Lira was entitled to an informal hearing before the IGI at SCC in 1993 once the

16 validation process was initiated against him and before any decision to validate him as gang

17 affiliated was made. That informal hearing never occurred, and indeed, Mr. Lira was kept entirely

18 unaware of this validation process and did not discover his secret validation until two and a half

19 years later, upon his return to the system at DVI in December 1995. The importance of this basic

20 hearing right has been repeatedly recognized in past decisions. As this Court observed in Lopez v.

21 Valdez, 2007 WL !378017, at *3 (N.D. Cal. 2007):

22

The person to whom the prisoner presents his views must be the

critical decision-maker .... because classification committees might

23

be "predisposed to transfer any validated inmate to the SHU," the

prisoner's meeting with the investigator of his case, who prepares the

24

gang validation packet and forwards his determination that the prisoner

is involved with the gang to the LEIU [formerly SSU] is the critical

25

point.

26

Past federal courts have repeatedly held that denial of a CDCR inmate's right to informal

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1 hearing before an IGI prior to gang validation constitutes a violation of the inmate's Fourteenth

2 Amendment procedural rights. Guizar v. Woodford, 2008 WL 2403000 (9'• Cir.) (inmate who was

3 not provided IGI hearing prior to validation was denied due process); Lopez v. Cook, 2008 WL

4 4489898, at* 24 (E.D. Cal.) (citing Guizar' and denying summary judgment to defendants because

5 the inmate "apparently never received the opportunity to present his views to the gang investigators,

6 who, in effect, were deciding his status."); Lopez, 2007 WL 1378017 at *4 (CDCR inmate's

7 evidence that he was denied informal hearing before IGI prior to validation established "'a genuine

8 issue for trial' concerning whether he was afforded his due process right to present his views to the

9 decision-maker"); Dawkins v. Peterson, 2007 WL 333818, *3 (E.D. Cal.) (summary judgment

10 denied where inmate never informed of validation process "or otherwise given a hearing or a chance

11 to contest any of the information before the [validation] packet was sent to the LEIU"), adopted 2007

12 WL 954328 (E.D. Cal.).

13

In addition, the record demonstrates a consistent failure by CDCR over many years to make

14 any meaningful periodic review of Mr. Lira's validation or any reevaluation of the evidence items

15 relied on to support it. This was a further denial of Mr. Lira's Fourteenth Amendment procedural

16 rights, which was related in consequence to the denial of due process involved in the original 1993

17 secret validation at SCC, but also constitutes a separate violation of those rights under §1983.

18

Within the CDCR system, the primary responsibility for ensuring periodic, meaningful

19 review of an inmate's gang validation and SHU confinement is assigned to the ICC.22 Pina v. Tilton,

20

21

21

The court in Lopez, though noting that the Ninth Circuit's decision in Guizar was

unpublished, nevertheless found it "instructive" on this issue. !d. at* 24 and fu. 21 (noting that

22 Guizar properly may be cited under Ninth Circuit Local Rule 36-3 even though it is not considered "precedent.").

23

22

CDCR regulations provide that the review of indeterminate SHU status

24 (including for validated gang members) at least every 180 may be done by "a classification

committee," which covers both the ICC and the UCC. 15 Cal. Code Regs.§ 3341.5(c)(2)(A); § 25 3376. In practice, however, responsibility for the required periodic validation review is assigned

to the ICC, not the UCC. This is reinforced by 15 Cal. Code Regs. section 3335, "Administrative 26 Segregation," which appears to designate the ICC as the proper party to perform these reviews.

(continued ... )

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1 2008 WL 4773564, at *4, fu. 1 (N.D. Cal.) (Illston, J.),(describing periodic reviews at Pelican Bay 2 required by Hewitt and Toussaint: "The periodic reviews are done by the ICC, rather than the DRB 3 [Departmental Review Board]."); Jackson v. Carey, 2006 WL 2827319, at* 8. (listing as 4 "undisputed fact" that "the ICC is responsible for, among other things, reviewing all cases in Ad5 Seg. When an inmate is confmed in Ad-Seg, the ICC must review the case and make determinations

6 as to the inmate's housing and classification.")

7

The need for meaningful periodic review of prison gang validations has been discussed in

8 past decisions of this District, such as Guizar:

9

Here, defendants initially argue that ICC officials did not violate

plaintiffs right to due process because the ICC is not responsible for

10

validating plaintiff as a gang associate. Defendants point out, and

plaintiffdoes not dispute, that IGI and LEIU officials are responsible

11

for investigating and validating gang members, whereas ICC officials

are responsible only for deciding where prisoners are to be housed.

12

The procedural protections set forth in Toussaint I, however, apply

when a prison official places an inmate in Administration Segregation

13

or the SHU. As defendants recognize, and as the undisputed evidence

indicates, ICC officials, including those named as defendants herein,

14

were the individuals responsible for deciding whether plaintiff would

be placed in administrative segregation and the SHU and, as such, are

15

liable for any failure to meet the procedural requirements of due

process.

16 2007 WL 951294, at *4, a.ff'd. on that gd., rev'd on other gd., 2008 WL 2403000 (9'h Cir.).

17 Moreover, as the Ninth Circuit made clear in affirming the district court on that ground in

18 Guizar, the ICC hearing process cannot discharge this constitutional requirement of meaningful

19 periodic review merely with a schedule of annual hearings at which no serious consideration is given

20 to re-evaluation of the validation evidence items relied on, nor any attention paid to an inmate's

21

22

23

22 (

.

.

.

continued)

24 See also 15 Cal. Code Regs.§ 3335(d)(2) (after gang validation investigation complete, "an ICC

shall review the inmate's case within 14 calendar days." See also§ 3335(e) ("Inmate retention in

25 administrative segregation beyond the initial segregation ICC hearing shall be referred for CSR

review and approval within 30 days and then thereafter in accordance with subsection (d) above. 26 In initiating such reviews an ICC shall recommend one of the following possible outcomes: ...(2)

Transfer to a Segregated Program Housing Unit in accordance with section 3341.5....")

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I complaints and concerns regarding the evidence and need for its further investigation. As the Ninth

2 Circuit observed:

3

[E]ven if the ICC-defendants satisfied the notice requirement, taken in

a light most favorable to Guizar the facts establish that they failed to

4

provide him with an opportunity to present his views. This

requirement cannot be satisfied simply because it is undisputed that

5

Guizar routinely appeared before the ICC during its segregation.

'Under [Guizar's] version of the facts, which we must accept as true at

6

this stage of the litigation,' during these appearances the ICC-

defendants consistently denied Guizar's multiple requests for an

7

opportunity to refute the gang validation. [citation omitted.]. Both a

decade of case law and the language of the regulations in place at the

8

time made clear that the ICC-defendants had "fair warning" that they

needed to provide Guizar with such an opportunity, and any mistaken

9

assumption to the contrary was unreasonable.

10 Guizar, 2008 WL 2403000 at *I.

II

As to the specific procedural elements that must attend a meaningful periodic ICC review of

12 an inmate's validation status, at least one decision from this District has ruled that those elements are

13 the same as applicable to the required pre-validation informal hearing before an IGI, given their

14 related but independent importance:

15

Since the risk that inmates will be deprived oftheir rights erroneously

and the value of additional safeguards are identical in the context of an

16

initial decision to segregate and a decision to continue retention in the

Secured Housing Unit, the Court finds that the procedural protections

17

articulated in Toussaint IV are required in this situation. Accordingly,

the Hill/Toussaint IV evidentiary standards and the Zimmerlee

18

reliability and safety requirements apply when prison officials decide

whether to retain an inmate in the Secured Housing Unit under section

19

3341.5(c)(3).

20 Jones v. Gomez, 1993 WL 341282 at *5 (emphasis in original).

21

The failure of CDCR personnel to ever afford Mr. Lira a meaningful hearing on his validation

22 was not just some technical or inconsequential lapse in this case. Considering the implausibility and

23 unreliability of the evidence items relied on, there is every likelihood that had Mr. Lira been

24 provided with timely access to the evidence and a timely opportunity to be heard by the IGI at SCC,

25 then at least one if not more of the evidence items would have been critically reviewed and rejected,

26 which, under CDCR regulations, would have precluded validation. Similarly, had Mr. Lira been

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1 provided with a meaningful periodic review of his validation at any point during the subsequent 2 years of his SHU and Ad-Seg confinement, there is every likelihood that a similar result would have 3 ensued. Thus, Mr. Lira's claim for procedural violation of his Fourteenth Amendment rights through 4 denial of an informal IGI hearing prior to validation and denial of any meaningful periodic review 5 thereafter represents a basis for declaratory and injunctive relief sought here that is separate and 6 independent from his claim of substantive violation of Fourteenth Amendment rights based on the

7 lack of "some evidence" to support validation.

8

At trial, CDCR personnel repeatedly testified that even if Mr. Lira had been afforded the

9 opportunity to be heard, either initially or during later periodic reviews, and even if that had led them

10 to discover evidence undermining any significance or reliability the items otherwise may have had,

11 CDCR nonetheless would have continued to rely upon all three items. But courts have rejected 12 similar obdurate refusals to acknowledge that the provisions of due process protections would have 13 made a difference. See, e.g., Tellier v. Scott, 2004 WL 224499, at* 12 (S.D.N.Y.) (denying summary 14 judgment to defendants on their argument that even if they had provided inmate all due process 15 rights in their periodic reviews about whether to retain him in administrative segregation for 16 approximately one and a half years because he was escape risk, "they would have kept him in SHU 17 regardless of the procedures applied"; "the standard [for determining causation] is not what 18 defendants would have decided; it is what an objective, neutral decision-maker would have 19 decided.") (quoting Giano v. Kelly, 2000 WL 876855, at *19 (S.D.N.Y.) (emphasis and brackets in

20 original).

21

Similarly, in Giano, the court following a bench trial determined that, in conducting their

22 periodic reviews of whether plaintiff should be kept in administrative segregation as a security threat,

23 defendants' failure to consider new, "readily available" information that undermined the initial

24 grounds for plaintiff's Ad-Seg placement constituted a violation of his right to "meaningful" periodic

25 reviews over a ten-month period. 2000 WL 876855, at *18-19. In so doing, the court addressed an

26 argument similar to that advanced by CDCR here:

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1

Defendants argue that they wonld have continued [plaintiff] in AS

regardless of the information available to them. Tills may be true.

2

However, the standard is not what defendants would have decided; it is

what an objective, neutral decision-maker would have decided.

3

Defendants' adamant insistence that they would not have released

[plaintiff] regardless of what they knew, and the ease with which they

4

adjusted their after-the-fact rationale for [plaintiffs] confinement,

suggests that they were far from neutral decision makers....

5

The question, then, is whether an impartial decision-maker, reviewing

6

the facts "then available," would have determined that [plaintiffs]

release from AS would create a risk to the safety or security ofthe

7

facility .... [I]t was incumbent on defendants to verify that the facts

continued to support a finding that [plaintiff] was a security risk during

8

the time he remained confined in AS.

9 Id. Accordingly, the court awarded plaintiff monetary damages for the period he spent in "the very
10 harsh conditions" of Attica's SHU. Id. at * 26:

11 12 13 14 15
16 v.

It must be stressed that the constitutional claim in this case is not for a "technical" violation but implicates very serious and very real concerns. Giano spent over one year in Attica's SHU under very harsh conditions. His confinement was for an indefinite term, and his only hope for release from AS was premised on a meaningful review of the reasons for his AS confinement. ... In light of the circumstances in this action, the doctrine of due process reveals how important it is for prison officials to conduct periodic and meaningful reviews of the bases for inmates' confinement in AS.
LIRA'S PELICAN BAY SHU EXPERIENCE

17

A. The SHU Confinement Regime

18

Mr. Lira arrived at Pelican Bay State Prison on September 24, 1996. After initial processing,

19 he was placed in the Security Housing Unit, Cellblock C. Inside that cellblock were ten units, each

20 with six eight-cell "isolation pods." Mr. Lira was placed in D Pod, in a bare concrete 8-foot by 10-

21 foot windowless cell, with a toilet, sink and a concrete slab and two-inch mattress for a bed. (Lira,

22 RT 927:23-928:11; Ex. 100-3 and 100-6) Mr. Lira's only access to the outside world was a set of

23 perforated holes in the cell door, through whlch he could look out into a windowless pod area to a

24 bare concrete opposite-facing wall. (Id.) All of the cells in the pod were oriented the same way, so

25 that none of the inmates ever had visual contact with one another. All cell-door and pod-door access

26 was controlled remotely by guards from a cell block central control room, through video surveillance

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1 cameras located in the pod. (Haney, RT 849:3-22)

2

Mr. Lira was kept in this cell for 22 and a half hours a day, every day. All meals were eaten

3 alone inside the cell, served twice a day by guards on trays pushed through a cell-door slot.

4 Mr. Lira was allowed out of the cell for 10- minute showers alone in the pod shower room three

5 times a week. (Lira, RT 949:4-5) And once a day (every other day if double-celled), Mr. Lira was

6 allowed to go alone to an exercise "yard," a bare concrete interior courtyard 9 feet by 48 feet, with

7 18-foot walls, (Ex. 100-4 and 100-5), where Mr. Lira could walk in circles for an hour and a half.

8 (Lira, RT 928:22-929:17) Mr. Lira, like all SHU inmates, was allowed out of his isolation pod

9 infrequently, e.g., to attend annual ICC hearings, periodic medical or dental visits to the infirmary, or

10 visits to the law library every month or two. (Lira, RT 922:1 0-25) On each occasion, Mr. Lira was

11 first strip-searched, then shackled hands and feet, and escorted by two guards.

12 (Lira, RT 931:8-933:8; Ex. 100-7)

13

There was no work program of any kind. (Lira, RT 934:13-935:12) Nor was there any

14 education or drug rehabilitation program. No phone calls were allowed. Mail was restricted and

15 closely screened, both incoming and outgoing. Only a limited amount of personal possessions were

16 allowed, and those were constantly searched and sometimes confiscated or taken for examination and

17 never returned. Visitation privileges were limited, though with Pelican Bay located in the farthest

18 northern reaches of California, it was practically impossible for Mr. Lira's family to visit anyway. 23

19

These were the hardships officially imposed on Mr. Lira. Pelican Bay SHU was designed to

20 be confining, controlling, and isolating beyond any correctional safety need. (Haney, RT 911:15-

21 913 :20) The facility is CDCR' s "prison within a prison," where it commits not only gang-affiliated

22 inmates on an indefinite basis, but also inmates convicted of serious disciplinary violations, sent to

23

24

23

Moreover, Mr. Lira's sister Lucy Harville testified that he wrote from Pelican Bay

after a year or so discouraging visits from his family, explaining that they would likely be more 25 painful for him than anything else. (Harville, RT 1438:2-25) Mr. Lira's only visitors during his
years at Pelican Bay were local Jehovah's Witness lay ministers, who came four or five times 26 during the course of those eight years and were allowed to speak briefly with Mr. Lira through

the pod door. (Ex. 98)

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1 the SHU for definite terms, as punishment for their offenses?4

2

Mr. Lira described in his trial testimony the struggle he endured to cope with these SHU

3 confinement conditions, how he constructed a daily routine for himself, rising by 6:00 a.m., then

4 Bible readings and an entry in his prison journal, and then typically work on one of his 602 appeals,

5 and later his lawsuit, or writing letters to his family. (Lira, RT 938:6-11) But as the years of

6 isolation and monotony wore on, Mr. Lira's tiny, windowless concrete world began to take an

7 increasing emotional toll. He described some of this in his testimony, his emotional pain from

8 loneliness and separation from his family, and it is echoed in many of his journal entries, these, for

9 example:

10

"9/28/1997 ... I finally received some pies. And a letter de Lucy. It

was good to see my Lilo ones. I miss them so much. How is it that I

11

live without them.... How strange I can get used to this sadness these

4-walls that keep me locked in. As always, I think of all my familia.

12

4/2711999....here I am in this hole. Locked down in this cement cell

13

23 hours a day. I go out the yard which is a cement facing the walls 18

feet high-- 12 by 18 =it's called a dog walk= all I can see is the sky.

14

I have lost my skin color and I am pale.

15

Thu. 6-3-99... .I wonder how Mom & Lali y mi tia Santos are? I still

have not heard de tina and my children. Just another day here in this

16

cave. It would be nice if there was a window to look out - - I am

surrounded by cement and steel - - grinding the stone. I am in the

17

wind."

18 (Ex. 98)

19

.20

21

22

24 Notably, CDCR provides by regulation a schedule of SHU confinement terms as

23 punishment for 115 disciplinary violations, graduated in duration in accordance with the seriousness of the offense. The most severe disciplinary confinement term, specified for murder

24 of a correctional staff member, is five years. 15 Cal.Code Regs. § 3341.5 (SHU Term
Assessment Chart). See, Giano, 2000 WL 876855, at * 26 ("Ironically an inmate in disciplinary

25 SHU is confined for a defined period of time based on the finding that he violated the prison rule,

i.e., by assaulting another inmate. However, the same inmate could be placed in AS [Ad-Seg] 26 based on a mere suspicion that he violated a prison rule, so long as his presence in GP [General

Population] is deemed a threat to prison safety or security, and is kept in AS indefmitely.")

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I

B. Lira's "No Good" Status and Deteriorating Mental Health

2

In addition to the deprivations imposed by institutional design, Mr. Lira also faced additional

3 hardships, and even deadly danger, during his stay at Pelican Bay SHU. Mr. Lira's SHU

4 confinement placed him a concentrated population of actual prison gang members and associates,

5 and as an inmate who had no gang affiliation, he was exposed to threats and other pressures from

6 these fellow prisoners. When Mr. Lira rejected this pressure, he was initially shunned, and then

7 targeted by the Northern Structure as "no good." (Ex. 77, 110)

8

In December 1997, Mr. Lira became an eyewitness to what this targeted status could mean,

9 when one inmate in his pod attacked and strangled another in front of Mr. Lira's cell door.25 (Lira,

10 RT 952:11-957:25) Mr. Lira was aware through the prison grapevine that this was not an isolated

II gang-directed murder, but instead one of a rash of inmate killings that the gang had committed over

12 recent months. In February 1999, Mr. Lira was himself the victim of a gang-directed assault by his

13 cellmate.'6 (Lira, RT 962:2-964:21)

14

Mental health records for Mr. Lira for his Pelican Bay term are limited, but they include

15 entries reflecting that by 1999, he was beginning to suffer adverse mental effects from his prolonged

16 confinement An interdisciplinary progress note dated November 23, 1999 records that Mr. Lira

17 reported "having some times of feeling stressed....headaches....reports mild episodes of anxiety

18 but not disabling." (Ex. 99, MHR 227) Of more serious concern was a progress note dated October

19

25

Mr. Lira also later saw the same inmate victim in the infirmary, and his journal

20 records this experience in his entry of December 24, 1997:

21

"Wednesday, 12-24-97. Its X-mas eve here. I am in my lila cell alone which I

22

intend to be for the rest of my time. Well I went to the dentist and got some work

done. Last week when I did go while I was on the chair the K-9 wheeled some

23

young Chicano who was dying. I seen the M.T.A. try to revive him by giving him

·c.P.R. I could see the dudes face all purple. I was thinking to myself why do I

24

have to see all this B/S. It is something that will stay with me por siempre."

25 (Ex. 98, ELJ-009)

26

26

Mr. Lira lost double-ceiling privileges as a result of this attack, and spent his last

five and a half years at Pelican Bay SHU in solitary confinement. (Ex. 44)

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1 26, 2000, "Psychology Note: VM referred by officers because of signs of paranoid ideation (food

2 tampering) .. Mood appeared angry, strong entitlement sense.... Further assessment not possible

3 due to uncooperative attitude and lack of confidentiality." (Ex. 99, MHR 228) A third progress

4 note, dated January 19,2001, documents a similar referral by correctional staff, "CO referred for

5 lying and/or delusional." Mr. Lira once again refused to cooperate with this attempted intervention.

6 (Ex. 99, MHR 229)

7

Among all the other stresses of SHU confinement, the fear of being driven to mental illness

8 became at some point a daily reality.27 Mr. Lira in his trial testimony described repeated occasions

9 when other inmates in his pod would fall apart mentally, with some of them raving and pounding on

10 their cell doors incessantly for days before finally taken away by guards. (Lira, RT 974:8-975:7)

11 Once more, Mr. Lira's journal records some of this experience:

12

Wednesday (12-31-97) well here it is once again the last day of the

year. I can't believe how focused I am about this year's end....well

13

time sure flows like water. I got a tore-up neighbor who is 65 years

old and has 40 years in the system. Dude says he is dying. Also there

14

is a dude a few cells down who is trying to starve him selL. They

keep cell-astrackting him 4 K-9s in white suits. It is crazy what they

15

do to the inmates. These guys just give up on life. It's sad. (Ex.98,

ELK-009)

16

C. The Groundless Deadly Weapon Charge

17

In March 2004, with his parole date from Pelican Bay only weeks away, Mr. Lira was

18

accused by pod guards of taking a razor strip from a disposable razor during his shower. When a

19

strip search and cell search turned up nothing, Mr. Lira was subjected to a 3-day "potty watch"

20

surveillance, in which he was placed in a filthy, small plexiglass cubicle and allowed only water and

21

no food until he produced three stool samples for inspection. (Ex. 81, Lira, RT 985: 17-987: 18)

22

When no razor strip materialized even after this procedure, SHU staff nevertheless referred a

23

complaint to the Del Norte County District Attorney, who charged Mr. Lira with inmate possession

24

25

27

In addition, a fear of serious medical illness was imposed on Mr. Lira from and

during his SHU confinement. During pod showers, Mr. Lira was given disposable razors to 26 shave that had been recycled from use by other inmates. As a result of this practice, and along

with many other inmates, Mr. Lira contracted Hepatitis C in 1998. (Ex. 89)

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1 of a deadly weapon. (Ex. 84)

2

Mr. Lira was then given a plea offer of eight more months in SHU confinement, and was

3 advised that if the offer were rejected and Mr. Lira were convicted following trial, he would face a

4 sentence of 12 more years. (Lira, RT 988:2-13) Mr. Lira rejected the offer, explaining simply in his

5 trial testimony that "I couldn't stand being there eight more months." (!d) A jury trial then

6 followed, in which Mr. Lira was acquitted on April 13, 2004. (Exs. 86 and 87) That night, Pelican

7 Bay staff loaded Mr. Lira into a bus and drove him to the Merced parole office, where Mr. Lira was

8 dumped in a parking lot the following morning, wearing only a paper jumpsuit and with his parole

9 clothes in a bag, marking the end, finally, of his Pelican Bay SHU imprisonment. (Lira, RT 989:8-

10 21)

11 VI. LIRA'S POST-PELICAN BAY SHU CONTINUING CONFINEMENT AND MENTAL HEALTH HISTORY
12 A. Emotional Problems on Release from Pelican Bay
13 Following his release on parole in April2004, Mr. Lira returned to his family's house in
14 Planada to live with his mother and grandmother. (Lira, RT 1193 :6-15) Although Mr. Lira expected
15 some significant adjustment problems returning to regular life, he did not expect the serious
16 emotional problems he began to develop almost immediately. As Mr. Lira described in his trial
17 testimony, he began to experience anxieties and vivid memories of his SHU experience, including
18 nightmares, flashbacks, and even voices of former pod-mates. (Lira, RT 1193:16-1197:15, 1203:13-
19 1204:25) Mr. Lira became preoccupied with fear for his safety, and could not cope with crowds of
20 people or public places such as shopping malls or movie theaters. Mr.Lira became withdrawn even
21 from his immediate family, and would spend days alone in his bedroom. He also developed
22 insomnia, often unable to sleep for days at a time.
23 Mr. Lira's sister Lucy Harville confirmed these symptoms in her trial testimony. She spent
24 every other weekend at the family house in Planada during this period helping their mother and
25 grandmother, as she had done for many years, and she saw Mr. Lira's emotional problems firsthand.
26 As she described, Mr.Lira had become a different person following his eight years at Pelican Bay,

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1 too afraid to go out with her even to shop and too anxious and withdrawn even to join holiday family

2 gatherings in the house. (Harville, RT 1442:4-1443:22)

3

B. Lira's Diagnosis and Treatment by CDCR Mental Health Personnel

4

Ms. Harville and another of Mr. Lira's sisters Irma tried to obtain sleep medication for him

5 through the Merced parole office, but received no assistance. By mid-2005, Mr. Lira was back in the

6 system at DVI on parole violation.28 In September 2005, he was seen by Dr. Inge Hansen for mental

7 health evaluation. Her patient interview notes include these reported symptoms from Mr. Lira:

8

Difficulty concentrating, reports nightmares, flashbacks, startle reflex

related to experiences from previous incarceration....Possible AH

9

[Auditory Hallucination] of voices - - may be experiencing self- talk as

voices... reports paranoia....c/o trauma-related sxs: concentration

10

problems, nightmares, flashbacks, etc. related to incarceration

experience at Pelican Bay.

11
(Ex. 99, AG0-0034) Dr. Hansen diagnosed Mr. Lira with "PTSD, provisional; RIO [Rule Out]

12 Malingering," along with polysubstance abuse and anti-social personality disorder based on his

13 criminal record. (Id) Dr. Hansen also referred Mr. Lira for further evaluation, including any needed

14 adjustment to his prescribed anti-depressant and sleep medications, which had first been dispensed to

15 him on intake at DVI in May 2005. She also formally admitted Mr.Lira into the Department's

16 CCCMS mental health treatment program, based on "medical necessity." (Ex. 91)

17 Over the course of the following two years, as Mr. Lira was in and out of the system for

18 repeated parole violations, he continued in the CCCMS program, which involved weekly interviews

19 and ongoing case management and treatment by mental health staff, both at DVI and later at

20 Corcoran SHU. (Hansen, RT 779:10-281:2, 783:17-784:1) Throughout this treatment history, Mr.

21 Lira continued to report the same set of symptoms in patient interviews, along with his belief that

22

23

24

28

Lira's parole was initially revoked in December 2004, and he was returned to DVI

where he was placed in Ad-Seg. Over the following two and a half years, Lira was released and

25 reincarcerated for parole violation several times, always for infractions uurelated to any gang

activity, e.g., domestic disturbance, positive drug tests, and unauthorized contact with his

26 common law wife. On each occasion, Mr. Lira was returned to Ad-Seg confinement, either at

DVI or at Corcoran SHU, because of his validation status. (Lira, RT 1205:1-1207:19)

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1 they were sourced in his Pelican Bay experience, as reflected in these record entries:

2

[September 27, 2005 (DVI)]- Spent most of his time in Pelican Bay

ASU program. States that he feared for his life daily and unable to

3

function when paroled back home... Anxiety [?], claims mood

depressed, poor energy levels, jumpy and easily becomes anxious

4

around large crowd of people or loud noises and has feelings to protect

himself.

5

[October 28, 2005 (DVI)]- "I am distrustful".... IM tells hx Pelican

6

Bay SHU ... insomnia, claims paranoid feelings, halluc., dels ...

Note: I asked IM to consider whether or not he was "institutionalized."

7

[November 17, 2005 (DVI)]- He feels on edge.... He states he

8

prepares to defend himself- he has a kneejerk response to even being

touched [?] by nephew.

9

[April24, 2006 (DVI)] -He would like to read a book on anger. He

10

states he suffers from P.T.S.D. He talked about being in Pelican Bay

and watching a guy right in front of him get killed and also being in a

11

dentist's office and watching somebody else get killed. He states he

was really traumatized, that when the doors open he gets really

12

frightened. He states that this is really hard for him.

13

[August 16,2006 (Corcoran)]- "I'm stressed" .... liP speaks about

worrying that his cell door will be "popped" and he will have to fight. .

14

. .liP speaks about fears of returning to the streets. I feel like I am

walking a tight rope.

15

[June 20, 2007 (DVI)] - Pt advises having flashbacks, nightmares,

16

avoidance symptoms, voices calling at night, [increased] startled

response, related several emotional.traumas in his life. "somebody

17

was killed in front of me"....gang was after me.... they wanted to

kill me.' Currently he is feeling better when on single-cell status.

18

Used to be paranoid, isolated, currently he is less depressed on current

medregime.

19 Mr..Lira was given a number of different diagnoses by CDCR mental health staff at DVI and

20 Corcoran. He was initially diagnosed with "adjustment disorder" in May 2005. (Ex. 99, MHR 046)

21 One staff psychiatrist at DVI, Dr. Jansen, diagnosed Mr. Lira on several occasions with "psychotic

22 disorder NOS," or Not Otherwise Specified. (Ex. 99, MHR 106, 123, 143, 161, 170) But the

23 primary diagnoses were PTSD and depression, and these were Mr. Lira's two primary diagnoses at

24 the time of his final parole in October 2007.29 (Ex. 99, MHR 053, 069, 116, 128, 178, 004, 010)

25

26

29

Dr. Hansen had no definite explanation for these multiple diagnoses among

(continued ... )

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1

Mr. Lira's prescription medications were also continued during this two-year period. This

2 regime of anti-depressant, anti-anxiety, and sleep medications were periodically adjusted, and Mr.

3 Lira reported some beneficial effect from these drugs30 (Ex. 99, MHR 080, 124, 158, 174, 184)

4

Despite Mr. Lira's history and ongoing treatment for his disorders, and some beneficial effect

5 he has received from his medications, he continues to suffer from their symptoms to a degree that

6 remains significant and often severe or even disabling. In addition, the medications have their own

7 adverse side effects as well. Mr. Lira continues to suffer from a major sleep disorder, and continues

8 to suffer not only depression and withdrawal but also anxiety over his physical safety, hyper

9 vigilance, and agoraphobia. (Good, Suppl. Rule 26 Rept. and Witness Stmt., pp. 1-2)

10

c. Dr. Haney's Evaluation and SHU Syndrome

11

Dr. Craig Haney testified as one of Mr. Lira's two mental health experts. A longtime research

12 psychologist and professor of psychology at University of California Santa Cruz, Dr. Haney has

13 devoted much of his 30-year career to the subject of prison confinement, particularly SHU or so-

14 called "supermax" confinement, and its effects on the mental health of prison inmates. (Haney, RT

15 833:9-835 :2) Dr. Haney has published research papers of studies on this subject, including an

16 extensive study done at Pelican Bay, and has been an expert witness in a number of court cases in

17 which constitutional challenges have been made to such confinement regimes on Eighth Amendment

18 and other grounds, some of them landmark cases in this area. (Haney, RT 835:12-837:7)

19

20

29 (

•••

continued)

21 multiple CDCR mental health staff, beyond venturing that possibly there were inconsistenecies

between Mr. Lira's reported symptoms with his affect or "presentation" during patient 22 interviews. (Hansen, RT 782:6) Hansen also conceded, however, that she is unfamiliar with

23

Pelican Bay SHU conditions, has never heard of SHU syndrome or the published literature on it, and cannot speak to whether Mr. Lira's eight years of SHU experience at Pelican Bay caused his

24 mental disorders. (Hansen, RT 787:3-788:5)

25

30

Since Mr. Lira's discharge in March 2008, he has continued under the care of San

Francisco/Stanford psychiatrist Jonathan Russ, who has agreed to have Mr. Lira as a patient on a

26 pro bono basis, has seen him several times, and has continued his prescription medications for

depression, anxiety and insomnia.

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1

Dr. Haney, along with others in this field, have identified a set of symptoms reported by

2 imnates confined to long-term SHU confinement. (Haney, RT 652:17-653:16) The symptomatology

3 generally mirrors that of an anxiety disorder, and substantially overlaps with symptoms ofPTSD.

4 The symptoms include: withdrawal, anxiety, paranoia, sleep disturbance, headaches, nightmares,

5 hypervigilance, intrusive thoughts, rage, and hopelessness. (Haney Rule 26 Rept. and Witness Strut.,

6 p. 22, Haney, RT 65:11-657:5)

7

Dr. Haney has formed the professional opinion that the extraordinary isolation and

8 deprivation of SHU confinement can be causally linked to these symptoms in imnates reporting

9 them, as SHU conditions, particularly when imposed over a period of years, can cause imnates to

10 alter their emotional make-up and personality in order to cope with and survive their experience.

11 (Haney, RT 657:6-659:12)

12

Dr. Haney has examined Mr. Lira's personal and mental health case history in detail and has

13 interviewed Mr. Lira regarding his Pelican Bay experience and subsequent mental health problems.

14 (Haney, RT 839:19-840:5) Dr. Haney has concluded that Mr. Lira's experience and reported

15 symptoms are consistent with SHU syndrome, and that the mental disorders Mr. Lira has been

16 diagnosed and treated for since his release from Pelican Bay in 2004 are sourced in his years of

17 imprisomnent there. (Haney, RT 660:5-665:9)

18

D. Dr. Good's Diagnosis and Opinion as to Cause

19

Dr. Paul Good, Mr. Lira's other mental health expert, is a clinical psychologist with 30 years

20 of private practice in San Francisco. (Good, RT 1129: 18-1130-17) He made a full diagnostic

21 evaluation of Mr. Lira for this case, including extended interviews of Mr. Lira and interviews as well

22 with his sister Ms. Harville, his mother, and his long-time girlfriend Victoria Luna. (Good, RT

23 1132: 12-1135:5) Dr. Good administered a full battery of written diagnostic tests to Mr. Lira,

24 including a test specific to PTSD. (Jd) Dr. Good consulted with professional colleagues over the

25 evaluation of those diagnostic test results, and consulted also with Dr. Haney and Berkley

26 psychiatrist Terry Kupers, another recognized expert on SHU syndrome. (Id.) Finally, Dr. Good

made a full review of the CDCR mental health records for Mr. Lira and other case materials

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I including Mr. Lira's prison journal. (!d.)

2

In Dr. Good's professional opinion, Mr. Lira, by primary diagnosis, suffers from dysthymia,

3 i.e., a moderate level of depression, and from PTSD. (Good, RT 1135;12-21) His diagnosis of

4 depression is based not only on Mr. Lira's reported symptoms, but also on the results of the

5 diagnostic testing, (Good, RT 1142:15-22), and on the beneficial effect that Mr. Lira has reported in

6 response to prescribed anti-depressant medication. (Good, RT 1132:1-1138:17) Dr. Good's

7 diagnosis of PTSD, in accordance with DSM IV diagnostic criteria, is based on the traumatic event

8 experienced by Mr. Lira in December 1997 in witnessing an inmate murdered (Good, RT 1142:15-

9 1145:23) and on Mr. Lira's reported symptomatology, which tracks the DSM IV diagnostic criteria 10 in each applicable category.31 (Good, RT 1144:13-1147:22) In Dr. Good's opinion, Mr.Lira does

II not suffer from psychosis, and he believes that the one equivocal symptom reported in this regard,

12 i.e., hearing voices, is actually the result of anxiety-based intrusive thoughts and not true delusions,

13 something Dr. Hansen also concluded. (Good, RT 1148:18-1149:9)

14

Turning to the issue of causation, Dr. Good believes that Mr. Lira's Pelican Bay SHU

15 confmement was the cause of the PTSD and, at a minimum, was a substantial contributing cause to

16 his depression. (Dr. Good recognized that Mr. Lira's prior history of drug use, as well as other

17 "stressors" in his life, may also have contributed to his depression.) (Good, RT 1150:17-1151:29)

18 Dr. Good bases his opinion partly on the developed literature on SHU syndrome, which he regards as

19 cogent here, particularly in view of the close correlation between Mr. Lira's reported symptoms and

20 recognized SHU syndrome symptomatology. (Good, RT 1152:16~1153:8) In addition, Dr. Good has

21 noted that Mr. Lira displayed none of these symptoms of mental disorder before he went to Pelican

22 Bay, as reflected not only in the testimony of his sister Ms. Harville, but also in the CDCR mental

23 health record. (Good, RT 1151:25-1152:15)

24

25

31

As Dr. Good explained in his trial testimony, PTSD symptoms include: (1) re-

26 experienced reaction (nightmares, flashbacks, ruminations); (2) avoidance reaction (withdrawal,

agoraphobia); and arousal reaction (hypervigilance, startle reflex).

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1

From mid-1994 to mid-1996, Mr. Lira underwent mental health screening on five separate

2 occasions at DVI, and the screening report for each states that Mr. Lira was not suffering from a

3 mental illness and had no need for referral to a mental health professional. (Good, RT 1153:12-

4 1154:2) In addition, on his arrival at Pelican Bay in September 1996, Mr. Lira underwent a Madrid

5 mental health screening, which determined that he had no prior history of mental disorder or

6 treatment and was not excluded from SHU confinement on mental health grounds. (!d.) As to the

7 delayed onset of Mr. Lira's depression and PTSD symptomatology, particularly as measured from

8 the December 19, 1997 traumatic event of witnessing an inmate murdered, Dr. Good did not find this

9 unduly prolonged, as delayed onset is not uncommon with PTSD. (Good, RT 1147:23-1148:17)

10 Dr. Good noted as well that Mr. Lira, according to Pelican Bay mental health records, was actually

II beginning to exhibit some of these symptoms years earlier while still confined there.32 (!d.)

12

E. Dr. Goldyne's Expert Testimony

13

In response to the evidence presented by Drs. Haney and Good, CDCR presented Dr. Adam

14 Goldyne, a forensic psychiatrist, retained to provide expert testimony on Mr. Lira's mental health

15 disorders, both as to diagnosis and cause.33 Dr. Goldyne, however, turned out to have hardly any

16 expert opinions on these subjects at all. Dr. Goldyne diagnosed Mr. Lira with psychosis not

17 otherwise specified or NOS, as he was unable to identify the type of psychotic disorder or level of its

18 severity. (Goldyne Rule 26 Rept. and Witness Stmt., p. 3) Likewise, Dr. Goldyne made diagnoses

19 of anxiety disorder and depression, but once again NOS in each case, with no opinion as to which

20

21

32

Moreover, as Dr. Haney noted in his Rule 26 report and trial testimony, it is

sometimes difficult to know the actual onset of mental disorder for confined inmates, particularly 22 in SHU, given the well-recognized stigma attached to any inmate voluntarily seeking mental

23

health care. This is perceived by other inmates, particularly gang members, as both a sign of weakness and as a suspected pretext for initiating CDCR's informant debriefing process. Note

24 that in both instances during 2000 and 200 I when guards referred Mr. Lira for mental health evaluation due to "signs of paranoid ideation" and "for lying &/or delusional" Mr. Lira refused to

25 cooperate with the referrals. (Ex. 99, MHR 228 and 229)

26

33

Dr. Goldyne has been board certified only since 2005, and has testified as an

expert witness at trial only once before. (Goldyne, RT 645:5-20)

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1 type of anxiety disorder or which clinical level of depressive severity Mr. Lira might have.

2 (Goldyne, RT 1647:8-19)

3

More importantly, Dr. Goldyne has no opinions as to the cause of Mr. Lira's mental

4 disorders, however they may be diagnosed. He has no opinion as to the cause of Mr. Lira's

5 psychosis, or his anxiety disorder, or his depression. (Goldyne, RT 1651 :8-20) Dr. Goldyne points

6 to several possible causes, including Mr. Lira's history of drug use (which his Rule 26 report is

7 replete with) and even including Mr. Lira's Pelican Bay SHU confinement. But Dr. Goldyne

8 testified that the potential mental health effects of prolonged SHU confinement are not yet clearly

9 established in the professional literature, and so the mental health effects of Mr. Lira's eight years of

10 SHU confinement are unknown and unknowable. (Goldyne, RT 1643:2-1646:1)

11

Dr. Goldyne's opinions- or non-opinions- on this issue of causation rest on the shakiest

12 forensic grounds. Dr. Goldyne acknowledged in his testimony that he has never been to Pelican Bay,

13 has no detailed understanding of SHU conditions there, and knows about them only from what he

14 has learned from reviewing materials in this case. (Goldyne, RT 1642:4-9) Dr. Goldyne has heard

15 of SHU syndrome, and has heard of Drs. Haney, Kupers, and other recognized researchers in this

16 field, but he has never read any of their published studies. Instead, he testified that he once read an

17 article by someone else who criticized these studies as insufficient to establish SHU syndrome as a

18 diagnostic disorder without further research.34 (Goldyne, RT 1642:10-21)

19

20

34 This is an article by a Jeffrey Metzner, which Dr. Haney was cross-examined on at

trial. Dr. Haney was familiar with Dr. Metzner's writings and had this, in part, to say about them:

21

I've written a literature review of this, of the literature in solitary confinement,

22

which is nearly a I 00 pages long. There is very little conflict in the literature

23

about the negative psychological effects oflong-term solitary confinement.

24

It is a position which most ofthe leading figures in the field who

have done research on this issue- unlike Dr. Metzner, who has not- a position

25

which they support.

26

It is a position which virtually every major human rights organization in the world

has taken a position on, from the International Committee of the Red Cross, to

(continued... )

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I

Dr. Goldyne's professional disinterest in the potential mental health effects of prolonged

2 SHU confinement extended also to his evaluation ofMr. Lira's individual case history. Dr. Goldyne

3 made no real inquiry, during his interviews of Mr. Lira or otherwise, relating to his Pelican Bay

4 experience, and thus was unaware of a number of things directly significant to an informed

5 evaluation of Mr. Lira's mental disorders and their cause. (Goldyne, RT 1632:8-18) Dr. Goldyne

6 was unaware of the evidence documenting the strangulation murder and its infirmary aftermath that

7 Mr. Lira witnessed in December 1997, including the descriptive entry in Mr. Lira's prison journal.

8 He was unaware of the gang-directed cellmate assault Mr. Lira suffered in February 1999. (Goldyne,

9 RT 1629:22-1630-14) And although Dr. Goldyne was aware of the mental health record entries on

10 Mr. Lira's referrals by correctional staff in 2000 and 2001 for "paranoid ideation" and "delusional"

11 behavior, he apparently had no interest in learning anything more about these attempted mental

12 health interventions, or their disturbing implications. (Goldyne, RT 1625:19-1627:8)

13

Dr. Goldyne was also unaware of the ordeal Mr. Lira endured on the eve of his parole in

14 March 2004, when, following a three-day "potty watch" surveillance, he was tried on a groundless

15 felony charge of inmate possession with a deadly weapon- an experience that Dr. Good described

16 as "terrifying" to Mr. Lira, as it must have been. (Goldyne, RT 1633:18-1634: 19) Dr. Goldyne was

17 also notably uncurious about Mr. Lira's broader SHU experience, how Mr. Lira himself viewed his

18 own emotional and mental health dnring those years, and how he had tried to cope with the isolation

19

20

34( •••continued)

21

Human Rights Watch, to the United Nations....

22

So there is really very little difference of opinion in the broader literature. The

23

people who actnally study the effects of solitary confinement have reached a consensus on this issue. It is a literature which requires a certain amount of effort

24

to absorb and to muster. Persons who make statements about the literature not

being convincing or not pointing in the direction that I have indicated are not,

25

unfortunately, familiar with the entirety of the literature and have not done

research on the topics themselves.

26

(Haney, RT 889:15-890:1, 891:13-21)

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I and deprivation of his confmement. Dr. Goldyne's Rule 26 reports discuss the results of his two

2 extended interviews with Mr. Lira, and while they record pages and pages of information about Mr.

3 Lira's history of drug use and his criminal history, including misdemeanors and arrests dating back

4 to the California Youth Authority, the reports say virtually nothing about Mr. Lira's eight years at

5 Pelican Bay. (Goldyne Rule 26 Rept. and Witness Stmt., pp. 8-61, pp. 20-23)

6

With this level of professional interest and understanding, it is not surprising that

7 Dr. Goldyne was unable to form any opinion on whether Mr. Lira's mental illness is sourced in his

8 Pelican Bay experience. Dr. Goldyne at one point in his trial testimony even suggested that inmates

9 in SHU confinement such as Mr. Lira sometimes find it "comforting" to be imprisoned indefinitely

10 under those conditions. (Goldyne, RT !634:8-1635:4)

II

Dr. Goldyne's only defmite diagnostic opinion is that Mr. Lira is not suffering from PTSD.

12 (Goldyne, RT 1647:14-16) His initial basis before this determination was his view that Mr. Lira's

l3 reported "tranmatic event," i.e., the December 1997 inmate strangulation murder he witnessed, was

14 not sufficiently substantiated with independent documentation. (Goldyne, RT 1648:21-1649:2)

15 When this documentation was shown to him at trial from Mr. Lira's prison journal and

16 contemporaneous news accounts, Dr. Goldyne relied instead on what he regarded as a years-long

17 delayed onset of Mr. Lira's PTSD symptoms, which in his experience makes a PTSD diagnosis here

18 "implausible". (Goldyne, 1627:10-1628:3)

19

Dr. Goldyne, though he regards his opinions as supported by the CDCR mental health record,

20 offered no explanation for his deviation from the consensus opinion of four mental health

21 professionals at DVI and Corcoran who separately diagnosed Mr.Lira with PTSD and based their

22 prescribed medications and other treatment of him on that diagnosis, among others, over the course

23 of two years. 35

24

25

35

It may be that the $75,000 in expert fees that Dr. Goldyne has charged and

received for this assignment provides at least some explanation for that deviation. (Goldyne, RT

26 1651 :2!-1652:11) Psychiatrists themselves refer to this form of bias as secondary gain, and their

professional literature recognizes it as a serious, and often unconscious, influence in their

(continued ... )

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1 VII. REMEDIES-- DECLARATORY JUDGMENT AND EXPUNGEMENT

2

Mr. Lira seeks two forms of relief under §1983.

3

First, he seeks a judicial declaration:

4

1. That his prison-gang validation was a violation of both his substantive and

5

procedural rights under the Fourteenth Amendment, as the validation was done in secret

6

from him, was never meaningfully reviewed thereafter, and was unsupported by any

7

significant or reliable evidence of his alleged gang association; and

8

2. That his confinement in Pelican Bay SHU for eight years, as well as his later

9

confinement for parole violation in DVI Ad-Seg in Corcoran SHU over three more years,

10

based solely on his wrongful validation, imposed significant and atypical hardship on Mr.

11

Lira in violation of his liberty interest under the Fourteenth Amendment.

12

Second, Mr. Lira seeks individual injunctive relief in the form of expungement of his

13 wrongful validation from CDCR records, and report of the expungement to all prison-gang databases

14 and clearing houses to which the validation had been reported originally.

15

A. Declaratory Judgment and Expungement as Authorized Remedies

16

Despite Mr. Lira's release from confinement and discharge of sentence, expungement

17 remains an authorized and appropriate remedy for §1983 violation in cases where an inmate can

18 show continuing adverse consequences from a wrongful prison record that expungement would

19 avoid or at least mitigate. Hewitt v. Helms 482 U.S 7755, 760 (1987) (release from prison did not

20 moot plaintiff's claims involving expungement of misconduct from prison records); Kerr v. Farrey

21 95 F.3d 472,476 (7'h Cir. 1996) (paroled prisoner's claim to have negative references expunged from

22 his prison record not moot "because any such references may have a continuing adverse impact on

23 him.")

24

25

26

35( •••continued)

forensic work. A. Goldyne "Minimizing the Influence of Unconscious Bias in Evaluation: A

Practical Guide," JAm Acad. Psychiatry Law 35:60-6 2007, pp. 61, 62.

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1

The Court has the authority to issue an order requiring defendant Secretary of CDCR to

2 expunge Mr. Lira's gang validation from departmental records as a remedy for Mr. Lira's wrongful

3 and constitutionally defective validation. Burnsworth v. Gunderson, 179 F.3d 771, 775 (9th Cir.

4 1999) (affirming order requiring Arizona Department of Corrections to expunge disciplinary escape

5 conviction from inmate's prison records where conviction not based on "some evidence";

6 expungement order "was the appropriate remedy for the wrong suffered by plaintiff' and a contrary

7 conclusion ignores the core of our concept of procedural due process."), quoting United States v.

8 Sweeney, 914 F.2d 1260, 1264 (9th Cir. 1990) (expungement remedy appropriate "where the

9 maintenance of such records would be fundamentally unfair.").

10

Federal courts have long recognized their equitable power to order expungement of a variety

11 of state and federal government records in order to remedy constitutional violations. Norman-

12 Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260, 1275 (9th Cir. 1998) ("Federal courts

13 have the equitable power to order 'expungement of Government records where necessary to vindicate

14 rights secured by the Constitution or by statute." (quoting Fendler v. United States Parole Comm.,

15 774 F.2d 975, 979 (9th Cir. 1985)); Maurer v. Los Angeles County Sheriff's Dept., 691 F.2d 434,

16 437 (9th Cir. 1982) ("It is well settled that the federal courts have inherent equitable power to order

17 the expungement oflocal arrest records as an appropriate remedy in the wake of police action in

18 violation of constitutional rights." [interior quotations omitted]). The fact that the records to be

19 expunged "are 'state records,' [does] not put them beyond federal control, even though the area is a

20 sensitive one involving delicate policy considerations." Wilson v. Webster, 467 F.2d 1282, 1284 (9th

21 Cir. 1972); see also Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978) (district court erred in

22 dismissing action against sheriff for expungement of allegedly unlawful state arrest records).

23

Expungement is authorized and appropriate here. Mr. Lira offered evidence at trial to

24 support expungement on two related but independent grounds.

25

26

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1

B. Declaratory Relief and Expungement as Beneficial to Lira's Mental Health

2

First, expungement coupled with a judicial declaration of wrongful validation, would have a

3 beneficial effect on Mr. Lira's ability to cope with his ongoing mental disorders. Both Dr. Haney

4 and Dr. Good spoke to this issue in their testimony.

5

Dr. Haney noted that Mr. Lira's.depression and PTSD are sourced in his Pelican Bay SHU

6 experience, and that a special hardship he endured as a part of that experience was the anguish of

7 knowing that he had been confined there unjustly. (Haney, RT 663:19-665:9) Dr. Haney noted also

8 that Mr. Lira's patient interviews with CDCR mental healthstaffrepeatedly record his "anger" over 9 his wrongful confinement as a diagnostically significant complaint.'6 (Haney, RT 913:21-914:15) In

10 Dr. Haney's view, a judicial declaration and expungement finally recognizing the validation as

11 wrongful will help Mr. Lira psychologically in reconciling to the injustice of this experience and 12 coping with its continuing consequences to his mental health.37

13

Dr: Good concurred in this evaluation. In his opinion, Mr. Lira would be benefitted by a

14 judicial declaration and expungement in dealing with his symptoms of both depression and PTSD.

15 (Good, RT 1155:1-1156:5) Dr. Good based this conclusion in part on his extended recent interview

16 with Mr. Lira on the issue, in which Mr. Lira spoke of a favorable outcome to the case as a means

17 towards coming to terms with the wrong he has suffered and moving on with his life. (Good, RT

18 1155:24-1157:9) Dr. Good also noted, as did Dr. Haney (Haney, RT 665:13-666:17), the relevant

19 literature on the psychological effect of exoneration following wrongful conviction, as well as

20

21

36

Note, for example, these mental health record entries: (1) May 24, 2005 (DVI) ~

intake interview, records symptoms as "Anxious, angry"; (2) February 27, 2007 (DVI) ~progress 22 no records "Mr. Lira discussed many issues related to Hx of Ad-Seg placement. He states he

23 hears voices and feels angry"; (3) July 9, 2007 (DVI) ~progress note records: "[how's your anger?] 'I hate people. I am angry at this administration for something I did not do~ I was

24 validated a gang member but I am not."' (Ex. 90, AGO -00047, 141 and 185)

25

37 Dr. Haney also explained that inmates who experience SHU syndrome often have

fought and lost in some measure a battle over their own identity and emotional make-up; in

26 Mr. Lira's case, this battle centered on whether his imputed prison-gang association was valid or

instead a falsehood. In Dr. Haney's opinion, a judicial declaration and expungement would help

Mr. Lira in restoring his full self-identity. (Haney, RT 865:10-869:1)

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I studies on truth-and-reconciliation commissions over human rights abuses, which consistently show 2 a beneficial effect from formal, public acknowledgment of illegality and injustice.

3 (Good, RT 1157:10-1158:12)

4

CDCR presented opposing expert testimony from Dr. Goldyne, who concluded that a judicial

5 declaration and expungement would likely have no appreciable effect for Mr. Lira. His rationale was

6 that Mr. Lira would only benefit from this judicial relief to the extent that it lessened his anxiety over

7 gang retaliatory violence, which he continues to fear. (Goldyne, RT 1609:16-1611 :6) But because

8 this concern is, in Dr. Goldyne's view, a psychotic delusion on Mr. Lira's part, it is doubtful that it

9 would respond in a therapeutically beneficial way to a real-world development like prevailing in this

I 0 case. (Id.)

II

This opinion by Dr. Goldyne, like others earlier discussed, has a dubious foundation. For one

12 thing, this represents a change in Dr. Goldyne's evaluation from his original November 2007 Rule 26

13 report and January 2008 deposition, in which he concluded that Mr. Lira's concern over gang

14 retaliatory violence, though a source of his anxiety symptoms, was nevertheless grounded in reality.38

15 In his more recent supplemental report of November 2008, Dr. Goldyne has now concluded that Mr.

16 Lira's fear of attack is not grounded in reality, but is instead delusional.39 (Goldyne, RT 1638:2-

17

18

38

Thus, for example, Dr. Goldyne had his comment in his original Rule 26 report

regarding Mr. Lira's experience of witnessing the strangulation of murder of a fellow inmate:

19 Psychiatric Care. As noted above, if Mr. Lira did witness a death following the

20

"pop" of a SHU door in 1997 or 1999, it is plausible that might have residual

anxiety about doors popping, but his apprehension likely had more to do with an

21

ongoing concern that he was on a "gang" hit list.

22 (Goldyne Report November 28,2007, page 47)

23

39

As Dr. Goldyne noted in his supplemental report:

24

In my 2007 report, I acknowledged the possibility that Mr. Lira's fear of attackers

25

was based on a realistic concern. However, I am now of the opinion that it is

most likely a delusion: A false belief which arises as part of a psychotic disorder

26

which persists despite evidence that it is not true.

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1 1639:10) Dr. Goldyne took no account of the relevant published literature on public exoneration and

2 reconciliation, and he left entirely unaddressed the potential beneficial effect ofjudicial declaration

3 and expungement on Mr. Lira's ongoing depression and anxiety disorder, which Dr. Goldyne also

4 diagnosed.

5

c. Declaratory Relief and Expungement as a Mitigation of Lira's Risk of Gang

Reprisal

6 The second basis urged for this requested relief is the mitigating effect it would have in

7

lessening the risk to Mr. Lira of retaliatory gang violence that his 12 years of wrongful gang

8

validated status has caused. Following his transfer to Pelican Bay SHU in 1996, Mr. Lira rejected

9

pressure from Northern Structure inmates to affiliate with the gang, and he thus became the victim of

10

reprisal, suffering a gang-directed cellmate assault in February 1999. As of2001, Mr. Lira's name

11

began surfacing on confiscated Northern Structure "no good" lists.

12

Dr. Haney has testified to this continuing danger to Mr. Lira, as well as the mitigating effect

13

that would result from the public judicial declaration of wrongful validation sought here. (Haney,

14

RT 668:5-669:1) So has Mr. Vasquez, who noted that the communication network between prison

15

and street gangs, though clandestine and often word-of-mouth, is effective in disseminating such

16

information.

17

The Department has presented contrary testimony from their own gang experts, both Tristan

18

and Marquez, in an effort to discount the continuing risk to Mr. Lira and the likelihood of any

19

mitigation of it from favorable case decision. This dismissive testimony is difficult to reconcile with

20

the Department's core contention throughout this litigation that prison gang retaliatory violence is a

21

pervasive deadly danger, and one that follows a "no good" inmate for years after he leaves the

22

system. Indeed, this is the entire basis for the unprecedented confidentiality restrictions imposed by

23

the Ninth Circuit, pursuant to CDCR' s writ petition, on the use of confidential informant information

24 at trial. The Department has argued successfully that informant identities in this confidential

25

26

39( •••continued)

(Goldyne Report dated November 23, 2008 p.3)

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I information- even from I 0 years and 17 years ago -must remain absolutely protected from 2 disclosure in a sealed record, in order to avoid violent retaliation against the informants or their 3 families. By comparison, Mr. Lira was last attacked in a gang-instigated assault two years ago at 4 DVI by a Northern Structure cellmate, who assaulted him in front of a guard as soon as he affirmed

5 his non-affiliated status.

6 VII. CONCLUSION

7

The Department has much to answer for in its treatment of Mr. Lira these past 12 years. For

8 most of that time, Mr. Lira was wrongfully imprisoned in SHU and Ad-Seg solitary confinement

9 under the harshest and most isolating conditions in the entire CDCR system. The experience has

10 damaged Mr. Lira mentally, and so in addition to those 12 lost years, he now lives with the

11 consequences of the clinical depression and PTSD they have caused him.

12

CDCR's confmement of Mr. Lira in Pelican Bay for this wrongful validation also resulted in

13 his "no good" status with the Northern Structure, which has led to two gang reprisal assaults against

14 him while in CDCR custody and a risk of further assault that continues to this day. In addition, the

15 negligent practices of Pelican Bay staff caused Mr. Lira to contract Hepatitis C, a potentially deadly

16 disease he now has for the rest of his life.40

17

But none of those matters have been placed directly at issue by this case as tried, certainly not

18 by any claim ofjust compensation for the misery and harm that Mr. Lira has been caused by this

19 Department. Mr. Lira seeks simply but importantly a judicial declaration that his prison gang

20 validation and SHU/Ad-Seg confinement by CDCR were wrongful and violated his constitutional

21

22

40

And then there is the retaliation against Mr. Lira by prison and parole staff, for his

23

jailhouse lawyering to other inmates, for his own serial 602 appeals, and for his federal lawsuit against the Department and a number of its personnel. The "potty watch" ordeal and the

24 groundless criminal charge of possessing a deadly weapon on the eve of Mr. Lira's March 2004 parole from Pelican Bay reek of retaliation. And so does the November 2005 home invasion

25 assault by a SWAT team of parole and local police agents, to arrest Mr. Lira for parole violation

on a dirty drug test. Mr. Lira has fought a years-long litigation battle to vindicate his §1983

26 claim, and the cost to him in effort and delay from that has been noted. But the trial record that

has now been developed also raises the indelible suspicion that Mr. Lira has borne an additional

cost over the years in retaliatory abuse for his right to a trial of this case.

No. C-00-0905 SI (pr) Plaintiffs Post-Trial Brief

61

Case 3:00-cv-00905-SI Document 444 Filed 02/11/09 Page 69 of 69

1 rights, and an order directing that the validation be expunged. Mr. Lira submits that the evidence

2 adduced at trial, evaluated in accordance with governing Ninth Circuit authority, fully justifies this

3 relief as requested.

4

5 Dated: February 11, 2009

CHAPMAN, POPIK & WHITE LLP

6

7

By: Is/

Mark A. White

8

Attorneys for Plaintiff Ernesto Lira

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No. C-00-0905 SI (pr) Plaintiffs Post-Trial Brief

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Volume 9 Pages 1740 - 1889 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE SUSAN ILLSTON, JUDGE

ERNESTO LIRA, Plaintiff,
VS. MATTHEW CATE, SECRETARY OF THE CDCR, IN HIS OFFICIAL CAPACITY,
Defendant.

) ) ) ) ) NO. C 00-0905 SI ) ) ) ) ) San Francisco, California
Tuesday, January 13, 2009

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

For Plaintiff:

CHAPMAN, POPIK & WHITE 650 California Street Suite 1900 San Francisco, California 94108 BY: WILLIAM B. CHAPMAN, ESQ. MARK A. WHITE, ESQ.

For Defendant: Also Present:

OFFICE OF THE ATTORNEY GENERAL 455 Golden Gate Avenue Suite 11000 San Francisco, California 94102-7004 BY: SCOTT J. FEUDALE, ESQ. NEAH HUYNH Deputy Attorneys General
ERNESTO LIRA GREG WALSH AIDA ALBANO

Reported By:

Belle Ball, CSR 8785, RMR, CRR Official Reporter - US District Court

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1 TUESDAY, FEBRUARY 3, 2009

2

8:39 A.M.

3

P R O C E E D I N G S

4

THE COURT: Mr. Feudale?

5

MR. FEUDALE: Yes, Your Honor. A couple of quick

6 housekeeping matters, before I call my witness, if that's all

7 right.

8

One thing I just wanted to correct for the Court,

9 I -- when we spoke a few days back about what the law is, and

10 what it requires and disputed issues of fact, I realized I

11 misspoke in response to a question Your Honor provided.

12

The question was whether an inmate was required to

13 meet with the IGI before submission of a validation package. I

14 confirmed through research, and this largely comes from the

15 Madrid and Toussaint cases, the inmate must meet with the IGI

16 before segregation, not before submission of the package.

17

So I know there is a two-year span here between when

18 Mr. Lira was segregated and when he was initially -- the

19 package was compiled, so it may have some bearing on that.

20

THE COURT: Say that again.

21

He has to have a meeting with the IGI --

22

MR. FEUDALE: -- before segregation, instead of

23 before submission of the validation package to SSU.

24

THE COURT: And, in this case, it happened which way?

25

MR. FEUDALE: Well, the initial meeting with the IGI,

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1 in this case, is unclear whether it happened to the two initial

2 gang investigators, Mr. Covello and Mr. Smith, but it

3 definitely happened by 1998 with Mr. Piland, which would have

4 been after segregation.

5

THE COURT: After segregation.

6

MR. FEUDALE: After segregation, yes.

7

THE COURT: And you are -- you just said he's

8 supposed to meet with them before segregation.

9

MR. FEUDALE: Correct. But the discrepancy I want to

10 clear up for the Court is -- is required before the submission

11 of the package. So had Mr. Lira met with the IGI say, at DVI,

12 before he was put in segregation, that would have been

13 sufficient under the law, instead of having to meet with the

14 investigators at Sierra in 1993.

15

So there are a few years in there that wouldn't have

16 been an issue. Not sure if that means anything, I just want to

17 make sure we are clear on the law.

18

MR. WHITE: Well, with all respect, I don't believe

19 defense counsel even now is clear on the law. We disagree with

20 this characterization of it. Both Toussaint, Roman IV, and the

21 Madrid case, and many, many other cases from this District,

22 recognize that the Fourteenth Amendment mandates, as part of

23 the minimal due process, entitlement of an inmate targeted for

24 prison-gang validation and indefinite SHU confinement,

25 potentially for the balance of his sentence, he is entitled at

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1 least to an informal hearing before the IGI at the facility

2 where this validation process has been initiated and is

3 ongoing. And that hearing has to take place before the

4 validation is completed. Otherwise, his opportunity to be

5 heard, as we've heard from many, many witnesses here in the

6 course of this trial, turns out to be essentially meaningless.

7

We will be briefing this law in our post-trial

8 briefing, Your Honor, but I just wanted to make clear, again,

9 our view of the governing law here. I think Mr. Feudale isn't

10 correct.

11

THE COURT: All right.

12

But I appreciate, if you think you misspoke before,

13 that you've cleared up whatever you have said, and in the end,

14 I'll read everything that you submit to me.

15

MR. FEUDALE: Of course.

16

MR. WHITE: Thank you.

17

THE COURT: So, are you ready?

18

MR. FEUDALE: I am, Your Honor.

19

THE COURT: Do you have any sense how long this

20 witness will take?

21

MR. FEUDALE: I'm hoping to have it wrapped up by

22 noon or 12:30 today, Your Honor, if that's possible.

23

THE COURT: Okay. I need to break at 10 after 12:00

24 for lunch.

25

MR. FEUDALE: Okay.

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1

THE COURT: So, if you can be expeditious, we can

2 complete it before then, but if we haven't completed it by

3 then, I need to break at that time.

4

MR. FEUDALE: Okay. I'll keep that in mind, Your

5 Honor.

6

THE COURT: Okay. So I'll try not to interrupt and

7 you can just Zip right along, how's that?

8

MR. FEUDALE: Sounds great.

9

THE COURT: Okay.

10

MR. FEUDALE: At this time, the Defendant would like

11 to call Robert Marquez to the stand.

12

(Witness placed under oath)

13

THE CLERK: Please state your full name for the

14 Record.

15

THE WITNESS: Robert Marquez. M-A-R-Q-U-E-Z.

16

THE CLERK: Thank you.

17

18

ROBERT MARQUEZ,

19 called as a witness for the Defendants herein, having been

20 first duly sworn, was examined and testified as follows:

21

DIRECT EXAMINATION

22 BY MR. FEUDALE:

23 Q Good morning, Agent Marquez.

24 A Good morning.

25 Q Agent Marquez, you have been retained as an expert in this

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1 case by Defendants.

2

Is that correct?

3 A That's correct.

4 Q And what was your task in this case?

5

What were you retained for?

6 A I was asked to review several documents related to

7 Mr. Lira's validation and form an opinion and prepare a report

8 for you.

9 Q And have you formed that opinion?

10 A Yes, I have.

11 Q And we will get into that in a second, but before we do,

12 let me ask you some background information.

13

When did you first begin working for the California

14 Department of Corrections?

15 A September, 1986. I attended the basic officer academy.

16 Q And, did you receive any gang training in the academy?

17 A Yes, I did.

18 Q What types of training did you receive there?

19 A We received training on prison gangs, street gangs, and

20 how they related to what we were doing as correctional

21 officers.

22 Q What was your first position after you graduated from the

23 academy?

24 A October of '86, I reported to the California Correctional

25 Institution, otherwise known as Tehachapi.

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1 Q And what did you do at Tehachapi?

2 A I worked at Tehachapi from October of '96 until February

3 of 1991, as a correctional officer.

4

But, specifically as it relates to this case, for two

5 years I was assigned to the security housing unit, or SHU,

6 where we housed inmates who are validated as associates or

7 members of prison gangs, and also those inmates who, due to

8 their behavior, have been placed there.

9 Q Did you gain any particular knowledge working in that

10 capacity with respect to prison gangs?

11 A Yes, I did. Firsthand knowledge.

12

I was assigned as a housing-unit floor officer and dealt

13 with gang members on a regular basis.

14 Q What was the next position you held after working at

15 Tehachapi?

16 A February, '91, I transferred over to Wasco State Prison,

17 which is a reception center. But while I was there, as it

18 relates to this case, I was assigned to the Administrative

19 Segregation Unit for approximately two and a half years.

20

And, although I was an officer and there was a supervisor

21 there in charge of the unit, for all intents and purposes, I

22 basically ran the unit.

23 Q What did you do in that capacity?

24 A Again, Administrative Segregation is utilized to house

25 prison-gang members and associates, those pending validation as

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1 such, and those inmates who have issues related to their

2 behavior or their safety concerns.

3 Q What was the next position you held after working at

4 Wasco -- is that what you said?

5 A Correct.

6

I believe it was June of 1997, I promoted to Correctional

7 Sergeant at North Kern State Prison in Delano, and I was

8 assigned to the Administrative Segregation Unit as the

9 supervisor in charge of the unit.

10 Q Were gang members housed in that unit?

11 A Yes, they were.

12 Q And, what were your responsibilities as Sergeant there?

13 A One, I oversaw the supervision of -- I believe about eight

14 to ten officers, but also, overall responsibility for that unit

15 for the safekeeping of the inmates that were housed there.

16

But, more importantly, I did interviews with inmates as

17 they would come in, so that I could attend ICC hearings and

18 have input as to what types of yards and what type of housing

19 would be appropriate for them, based on their gang affiliation

20 or their needs.

21 Q And what was the next position you held after you worked

22 at North Kern?

23 A In June of 2000, I transferred to Pelican Bay State Prison

24 as a Correctional Sergeant. I worked the general population

25 there and also the Administrative Segregation.

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1

In March of 2001, I promoted to Correctional Lieutenant.

2 I was in charge of the Administrative Segregation Unit there at

3 Pelican Bay.

4

And then, in June of 2001, I was assigned as the

5 Institutional Gang Investigator/Security Squad Lieutenant.

6 Q Let me focus on your responsibilities as the Institutional

7 Gang Investigator. And when I refer to that as IGI, will you

8 understand what I'm saying?

9

So what were your responsibilities as an IGI?

10 A Well, as the IGI, my primary responsibility was to conduct

11 investigations regarding the gang affiliation of the inmates

12 that were there at Pelican Bay. Also, to facilitate

13 investigations as it related to the inmates there at Pelican

14 Bay, I was the liaison with outside law enforcement.

15

Another priority, or a responsibility, was for training

16 there, locally at the prison and outside of the prison. Some

17 of the examples of the training that I did, I did training for

18 Humboldt State University; Southern Oregon University; College

19 of the Redwoods, in Eureka; Rogue River Community College,

20 Southwest Oregon Community College; to their criminal justice

21 programs.

22 Q Did that involve instruction on gangs, prison gangs?

23 A Yes, it did.

24 Q Now, as part of the -- your responsibilities as the IGI,

25 were you involved in the validation process?

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1 A Yes, I was.

2 Q Could you describe for the Court what your role was in the

3 validation process.

4 A Well, basically, as the IGI, you're conducting

5 investigations, you're responsible for those investigations as

6 it relates to the affiliation of the individual inmate.

7

Those investigations are initiated in a number of

8 different ways. One could be through the ICC. An inmate could

9 go to an ICC or a UCC, and information comes out, and that

10 information is then forwarded to the Gang Investigations Unit,

11 where we're informed, "Hey, there's information in the guy's

12 Central File," or there was something said in the

13 classification hearing that warrants you taking a look at it,

14 to determine what his gang affiliation is.

15

One of the things that we did was look at incoming and

16 outgoing mail. An investigation may start based on what we

17 observed in incoming or outgoing mail, as to an inmate's gang

18 affiliation.

19

An investigation may begin with --

20

THE COURT: Excuse me.

21

THE WITNESS: Bless you, Your Honor.

22

An investigation may begin as a result of information

23 received from a confidential informant.

24

So there's any number of ways that the investigation

25 may begin, but ultimately I'm responsible for those

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1 investigations.

2 BY MR. FEUDALE

3 Q And, what did the validation process comprise of?

4

What did you have to do as an IGI, once you had undertaken

5 your investigation?

6 A A number of things.

7

One, we are compiling evidence and collecting evidence,

8 whether it be the mail, whether it be the --

9

THE WITNESS: Bless you.

10

-- the review and photograph of tattoos on the

11 inmate; looking at visitor lists, who's visiting different

12 people; reviewing audio or videotapes from the visits.

13

We're looking at a number of different criteria.

14 Those, the criteria that we look at are all outlined in the

15 California Code of Regulations, Title 15 -- let me know if I'm

16 talking too fast, will you -- Section 3378, and there's

17 thirteen different criteria that we look at, as far as

18 independent sources of information that we might use in that

19 validation.

20 BY MR. FEUDALE:

21 Q And what type of criteria are those, off the top of your

22 head?

23

I won't ask you to name all thirteen.

24 A Okay.

25

One would be a self-admission, where the inmate would tell

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1 us that he is, in fact, part of the gang.

2

One would be tattoos and symbols.

3

One would be written material. Written material would

4 consist of, like, constitutions, rules, different -- different

5 things that are specific to the gang that are written,

6 communications, which could be from the phones, from the mail,

7 any way that they communicate, visitors.

8

And when I talk about visitors, sometimes we have visitors

9 that will come to Pelican Bay, visit with an inmate there, and

10 leave and go to other prisons and disseminate the information

11 that they received from Pelican Bay to the other prisons.

12

Legal offenses. We look at stuff like the information

13 contained in the Probation Officer's report, in the abstract of

14 judgment. We are looking at offenses, different things that

15 the inmate may have been found guilty for or have been

16 documented to have done.

17

Informants. Debriefs. Photographs. I think that pretty

18 much covers the -- a good section of that.

19 Q Do you rely on information from agencies outside the

20 Department?

21 A Yes, we do.

22 Q Now, as part of the process, did you interview inmates?

23 A Yes, I did.

24 Q And, approximately how many inmates do you think you

25 interviewed while you were in IGI there at Pelican Bay?

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1 A At least a thousand.

2 Q And how many of those interviews did you conduct with gang

3 members or dropouts from the Northern Structure prison gang?

4 A At Pelican Bay, I would say at least a fourth of those,

5 about 250.

6 Q About 250?

7 A Correct.

8 Q Now, have you provided testimony in court as an expert on

9 gangs before?

10 A Yes, I have.

11 Q How many times have you done that?

12 A Twice.

13

I have been qualified in Del Norte County Superior Court,

14 once in Tehama County Superior Court. And, although I didn't

15 go through the voir dire process in Federal Court, it was

16 accepted by the Court here recently, in the Florencia RICO

17 indictment, where I was qualified as an expert.

18 Q Now, I'm going to ask you questions about your current

19 position as Special Agent with the Office of Correctional

20 Safety.

21

When did you start that position?

22 A December of 2004.

23 Q And, before we go into it, what is OCS?

24

What does the Office of Correctional Safety do?

25 A The Office of Correctional Safety is kind of the parent

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1 organization, but under that fall the Special Service Unit,

2 which I work for. Also under there are our gang debriefers,

3 our gang intelligence people, and the fugitive apprehension

4 team and our emergency operations people.

5

But basically, the Office of Correctional Safety, we're,

6 for lack of a better term, the police department for the

7 Department of Corrections.

8 Q As part of --

9

THE COURT: I didn't understand what that means.

10

What do you mean?

11

THE WITNESS: Well, what we do, in relation to what I

12 do as a Special Agent, I'm basically like a police officer on

13 the streets. I don't carry a caseload like a parole agent

14 would carry.

15

I have latitude to work cases that are of interest to

16 the Department, high-notoriety cases, gang cases, going after

17 escapees, and acting as a liaison between the Department of

18 Corrections and outside law enforcement.

19

THE COURT: Thank you.

20 BY MR. FEUDALE

21 Q Now, Agent Vasquez --

22 A Marquez.

23 Q Oh, I'm sorry, Jeez. Agent Marquez, I apologize for that.

24

As part of your duties with the -- with OCS, do you review

25 gang validations?

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1 A Yes, I do.

2 Q Approximately how many gang validations do you review?

3 A Since my assignment as a Special Agent, I've reviewed

4 approximately a thousand validations. Currently, I have under

5 my purview high Desert State Prison; the California

6 Correctional Center, both in Susanville, California; Salinas

7 Valley State Prison in Soledad; and the prison in San Diego.

8

But, for about two and a half years, I reviewed all of the

9 gang validations coming out of Pelican Bay.

10 Q And how many of those validations that you reviewed have

11 been of Northern Structure associates or members?

12 A I would say about 300 of those.

13 Q When was the last time you reviewed a gang validation

14 involving an inmate associated or affiliated with the Northern

15 Structure?

16 A I reviewed three last week.

17 Q Now, in your capacity reviewing validations as an SSU

18 agent, have you ever found one to be insufficient?

19 A Yes.

20 Q How often has that happened?

21 A Hopefully -- you know, it doesn't happen too often.

22

When I first took over reviewing the validations for

23 Pelican Bay, there was a few that, after I left, we had some

24 new people go in, they weren't real familiar with the process,

25 so there were a few that I rejected and sent back to them.

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1

And, over the course of the time that I have been doing

2 these, it's my responsibility to train the IGIs that I'm

3 reviewing their validations. So now we've got it to where,

4 very few.

5

But every now and then they still send stuff that, maybe

6 not the whole validation package is rejected, but individual

7 source items are rejected.

8 Q And, let's say that happens. You get a source item or a

9 package which you find is insufficient.

10

What do you do on such occasions?

11 A It depends. In one case, they may have insufficient

12 source items. I'll make a phone call and advise them of such,

13 and ask them, "Is there anything else that you can possibly

14 look at to, you know, conclude your investigation?"

15

If they say there is, I'll hold it, put it off to the side

16 and tell them, "Okay, go further your investigation and let me

17 know what you find out."

18

If there's no information, there's not any further

19 information, I leave it up to them, and I ask them, "Look, do

20 you want me to do a 128-B-2 and codify the source items that

21 you do have, although reject the validation? Or do you just

22 want me to send it back to you, and you guys can maintain the

23 documents and, you know, continue in the process?"

24

So it happens either way.

25 Q And, when was the last time, off the top of your head, you

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1 rejected a validation?

2 A Outright rejected one?

3 Q (Nods head)

4 A Probably October or November.

5 Q Of 2007?

6 A No, 2008.

7 Q Of 2008.

8

Now, you mentioned investigations.

9

When was the last time you conducted a investigation

10 involving an inmate affiliate of the Northern Structure?

11 A I'm currently conducting one. There's two of them,

12 actually. I'm working a homicide case and an attempted murder

13 case involving Northern Structure gang members.

14 Q Now, there's been other testimony from gang investigators

15 that they have belonged to task force, throughout the state,

16 gang task force.

17

Do you belong to any such organizations?

18 A Yes, I do. I belong to the Humboldt County Gang Task

19 Force. I no longer participate with them, due to my location.

20 But I participate with the Shasta Anti-Gang Enforcement Unit,

21 or SAGE; I participate with the Tehama Area Regional Gang

22 Enforcement Team; and I'm part of the FBI Safe Streets Task

23 Force for Northern California.

24 Q Now, just a general question for you, Agent Marquez.

25

If you were to, say, take a sabbatical for six months from

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1 your job, would you be current on gang activity?

2

Is it knowledge that kind of spans throughout time?

3 A No, it's not. I, personally, would not feel that I would

4 be current. And, the reason being is that -- and we kind of

5 joke around about that -- is that a lot of guys don't want to

6 promote out of the gang units or leave gang units because they

7 know that once they leave for a while, things are going to

8 change and they'll be out of the loop, so to speak.

9

But the methodologies that the gangs use change, their

10 codes change. Memberships, the standing of particular gang

11 individuals change from good to bad, bad to good. So, to be

12 out of a gang unit for a couple of months, you would be out of

13 the loop.

14 Q Let's say you were out of the gang unit for 30 years.

15

Would you say you would be out of the loop in that

16 circumstance?

17 A Absolutely.

18 Q Now, I'm going to ask you a little more direct questions

19 about your opinions on this case.

20

Do you have an opinion as to whether or not Mr. Lira was

21 appropriately validated as a Northern Structure associate?

22 A Yes, I do.

23 Q What's your opinion?

24 A I believe that the validation and the source items that

25 were used were correct. However, my own personal opinion is,

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1 is that had I been the IGI, or had I been the SSU agent to have

2 reviewed the gang validation, I would have indicated that he

3 was a member, as opposed to an associate, of the gang.

4 Q Could you explain for the Court the difference between the

5 two?

6 A Well, it's outlined in the Title 15, a member is somebody

7 that has been accepted into the membership of the gang, whereas

8 an associate is somebody who does things for the gang,

9 associates with the gang, but isn't recognized by the

10 individual gang as a member.

11

And, in this case, the documents that I reviewed, the

12 three independent source items, to me, spoke of his membership,

13 based on what -- the information contained in those documents.

14 Q And, in reaching your opinion, what sort of documents did

15 you review?

16

You mentioned the three source items.

17 A I reviewed a debriefing report; I reviewed a 128-B, which

18 detailed the discovery of a drawing which contained Northern

19 Structure gang symbols; and I reviewed a 128-B, which basically

20 restated information from the Merced County Jail. There was a

21 Merced County Jail report --

22 Q How many debriefing reports did you review?

23 A In total, I reviewed two, but as it relates to the initial

24 validation, I reviewed -- there was one.

25 Q All right. Let's talk about those particular items you

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1 reviewed. I'm going to turn your attention, if you grab

2 Plaintiff's binder, which is the gray, black binder there,

3 probably --

4 A Volume 1 or 2?

5

MR. FEUDALE: May I approach, Your Honor?

6

Probably 1, No. 1.

7 BY MR. FEUDALE:

8 Q Let me turn your attention, Agent Marquez, to Exhibit

9 No. 10, first of all.

10

THE CLERK: Is it empty? I'm sorry.

11

THE WITNESS: I'm ready.

12 BY MR. FEUDALE

13 Q Is that the 128-B you mentioned you reviewed?

14 A Correct.

15 Q And, let me turn your attention to Exhibit 6. Just flip

16 back.

17

Is that the outside agency report you referred to?

18 A That's the typed version, correct.

19 Q And, based on your review, what is -- well, is there any

20 gang significance in this document?

21 A Yes, there is.

22 Q What is that?

23

THE COURT: Which document? Both of them?

24

MR. FEUDALE: Both combined.

25 BY MR. FEUDALE

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1 Q But let me focus your attention on Exhibit 6, actual typed

2 report.

3

What is the gang significance of that document?

4 A Well, there's a couple of things that I see. Number one,

5 there's a -- an individual named Juan Morales, who's in custody

6 in the Merced County Jail. He is a validated member of the

7 Northern Structure.

8

According to the written report of Officer Romero, there

9 seemed to be a -- some type of an emergency, where there was a

10 need to evacuate the facility and place northern Hispanics and

11 southern Hispanics on the same exercise yard, for their safety

12 from the incident that was happening inside the building.

13

According to the written report, once they're out there,

14 Lira, along with Juan Morales, the validated Northern Structure

15 member, and four other northern Hispanic inmates, approached

16 two southern Hispanic inmates.

17

And, according to the report, what the officer observes

18 warrants, in his mind, based on his experience, that there

19 appears that there's going -- there's possibly going to be a

20 gang-related fight between the northern Hispanic gang members

21 and the southern Hispanic gang members.

22

And that, according to this report, the northern Hispanics

23 surround the southern Hispanics, challenge them about their

24 tattoos and about their gang affiliation, which is consistent

25 with what I know to be gang behavior.

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1 Q Why is that?

2

Can you explain to the Court why is that consistent with

3 gang behavior?

4 A Okay. One of the foundations, the foundational principals

5 and the way that gangs operate, they operate through fear and

6 intimidation. And they use fear and intimidation to have

7 influence and to have control over given areas, whether it's on

8 the streets, whether it's in individual jails or prisons.

9

One of the other gang activities that I'm aware of is that

10 gang members will often challenge people that they don't know

11 about their gang tattoos or gang affiliation to determine

12 whether or not they are a threat to them or whether they're an

13 ally.

14

So, in this case, you have six northern Hispanics approach

15 two people that they don't know, but assumed to be southern

16 Hispanic gang members, and challenge them about their status.

17

Again, it's about, you have a far superior number of

18 inmates going to a less superior number, you have the

19 intimidation factor which is, in my mind, the -- one of the

20 foundational characteristics of a gang, that they create fear

21 and intimidation. But then they are challenging them about

22 their gang status to determine whether or not they are a threat

23 or an ally.

24 Q Is there anything else that's significant in this report

25 of gang activity, just looking at it?

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1 A In this report, the officer states that, to the officer

2 who wrote the report, makes this unsolicited comment about,

3 "You know, basically, you know what we're doing, we have to do

4 this because once we get to the prison system, basically we're

5 outnumbered, and they're going to do the same to us, the

6 southern Hispanics."

7 Q Who made that statement?

8 A Lira, according to the report.

9 Q And what is the significance of that statement?

10

What does that mean, in your mind, based on your training

11 and experience?

12 A Based on my training and experience, I know that southern

13 Hispanic gang members and northern Hispanic gang members are

14 enemies. And this goes all the way back to how the prison

15 gangs were formed back in the mid-fifties.

16

Would you like me to explain --

17 Q Oh, yes, please do.

18 A Okay. The very first prison gang that started was the

19 Mexican Mafia, in and around 1956, at DVI State Prison.

20

The Mexican Mafia started with the idea that, as a group

21 of Hispanics, they were going to protect Hispanics, promote

22 Hispanics, educate Hispanics, but also, be in the control of

23 the prison system. Because the thinking was, is that if you

24 can control the prison system, you can control the streets.

25

And how that works is that if you're a gang member on the

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1 streets, gang members engage in illicit and illegal activities.

2 At some point, there's a high probability a street gang member

3 is going to go to prison. If you can control the prisons, then

4 you can control what the guys do on the streets because, at

5 some point, they are going to come to your backyard, they're

6 going to come to your house.

7

So, if they don't obey the edicts of the prison gang, from

8 prison, while they were on the streets, they are going to be

9 targeted, either on the streets or in prison.

10

When you have this group, the Mexican Mafia, they start,

11 there is no defining line that separates California with

12 northern Hispanics and southern Hispanics. It's about the

13 race. With the formation of this gang, a lot of the original

14 founders of the Mexican Mafia were from Northern California. A

15 lot of the founders of what then became the Nuestra Familia

16 were from Southern California. Because there was no dividing

17 line, there wasn't north and south.

18

So what happens, around 1962-63, the Mexican Mafia now is

19 basically in control of the prisons. They have the white

20 inmate population at bay, the black inmate population at bay,

21 they are controlling the prison system, but they're also

22 beginning to control the streets. Because gang -- gangs are

23 predatory in nature, they begin to prey on their own. And

24 there's a number of documented gang-related assaults where the

25 Mexican Mafia is actually targeting and assaulting the very

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1 people that they said they were there to protect and promote

2 and help.

3

Out of that group comes the Nuestra Familia. These -- so

4 you have these members that come out of the Mexico Mafia.

5 There's actually two groups that come out of the Mexican Mafia

6 about the same time, it's the Nuestra Familia and the

7 Maravillosos, all of the Maravilla street-gang members.

8

So these two groups came out of the Mexican Mafia in the

9 early-to-mid-sixties. And their thinking was, is, "We joined

10 the Mexican Mafia to protect, to promote, to better our race,

11 control the prisons, control the streets, but now you've turned

12 on the very people you said you were there to protect."

13

So you have these two groups that come out of there. One

14 of those is the Nuestra Familia.

15

Although this transition is starting in the mid-sixties,

16 it is recognized through their own writings that their

17 birthdate is September 16, 1968. That's when they say they

18 actually became -- they were formed.

19

So, now you have this group that has come out to protect

20 the race. And, although the original leadership was from

21 Southern California, a lot of the original leaders, they now

22 were at war with the Mexican Mafia. They begin to recruit, the

23 recruitment base then becomes a lot of the northern Hispanic

24 population from the rural counties, and that's basically their,

25 where they're drawing their pull from, where the Mexican Mafia

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1 is drawing their recruits from Southern California.

2

And it's during this time, this mid-sixties time, there's

3 a lot of documented violence, a lot of homicides, the Nuestra

4 Familia is responsible for killing one of the founders and

5 leaders of the Mexico Mafia. And so there's been this

6 back-and-forth war between these two groups, going all the way

7 back to the mid-sixties, which has never been resolved.

8

And so, when you see southern Hispanics and northern

9 Hispanics, while they may not necessarily be identified as

10 prison-gang people, the roots and the origins of that conflict

11 and that tension goes all the way back to the 1960s, between

12 the Mexican Mafia and the Nuestra Familia.

13 Q Could you explain how the Northern Structure prison gang

14 falls into that context?

15 A It's because of the violence that's taken place in the

16 prison, that prison officials decided the way to control the

17 violence is to segregate these -- this gang population.

18

With the Nuestra Familia segregated, the Mexican Mafia

19 segregated, they lose their influence on the general population

20 yards. So, in order to still maintain that influence, the

21 Nuestro Familia has this idea that, "We will start" -- and to

22 use a baseball analogy, single-A ball clubs in professional

23 baseball are your lowest-rung professional ballplayer, and I

24 would equate those to northern Hispanic street-gang members.

25 Your second rung is your AA baseball players, and those are

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1 your guys that are the northern Hispanic gang members that have

2 come into the prison system, are getting educated, that are

3 participating in the gang activity and doing it on a far more

4 frequent and dedicated level. Those would be your AA

5 ballplayers.

6

Now, I would classify the Northern Structure as your AAA

7 ball club. Those are the guys that are right on the cusp of

8 becoming professional ballplayers, i.e., the Nuestra Familia.

9 And you'll see that in professional baseball, there is a lot of

10 interaction between the pro ball club and AAA, people go up, go

11 down, go up, go down, and it's kind of like that. The AAA ball

12 club is where the pro ball club recruits their membership from

13 and the players from, and the same with the NF.

14

They, the Northern Structure, was created for and by the

15 NF. Their inception date is documented to be January the 22nd,

16 1984, at Folsom State Prison. And it's from that group that

17 the NF pulls and draws its resources. But they are subordinate

18 to the NF.

19 Q Thank you, Agent Marquez.

20

Turning back to the report on Exhibit 6, now, you will

21 notice, and there's been testimony in this case, that there was

22 no incident of violence here. There's no blows thrown or

23 anything like that.

24

Does that have any significance to your opinion?

25 A No, it doesn't. Whether there were blows, whether there

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1 was a physical altercation or not, doesn't negate the fact that

2 Lira acted in concert with a validated member of the Northern

3 Structure, and, with other northern Hispanics, approached a

4 rival gang for the purpose of intimidating them and challenging

5 them.

6 Q There's also been testimony from Mr. Lira that he was

7 merely a bystander, he was shooting baskets during this

8 altercation.

9

Based on your training and experience, as a gang

10 investigator, is that plausible?

11 A Plausible, no.

12

Could he have been playing basketball, could he have

13 thrown up a couple of shots with a ball?

14

Possibly. But the facts in this case are documented in

15 the report. Again, he, along with a validated member, other

16 northern Hispanics, approached rival gang members.

17 Q Now, I would like you to turn your attention to Exhibit 1.

18

(Request complied with by the Witness)

19 Q Have you seen this report before?

20 A Yes, I have.

21 Q And, does this report describe the same incident that we

22 were just referring to in Exhibit 6?

23 A Yes, it does.

24 Q Now, there's been testimony that this report, you know, if

25 you look at the date, was produced a year earlier than the

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1 report under Tab 6.

2

Does that bear any significance, in your opinion?

3 A No.

4 Q Why not?

5 A Well, as far as the gang-related activity, they're the

6 same in the handwritten report and they're the same in the

7 typed report. The only difference being the unsolicited

8 statement, which is documented in the typed report. But the --

9 the same basic activity is documented in the handwritten

10 report.

11 Q Now, if you look on that report, and you look at the line,

12 third line down, it talks about Mr. Lira, and if you go right

13 across from his name towards the right, you will see two -- two

14 words -- two phrases, I suppose: One is "Norte 14"; one is

15 "VPX Planada."

16

Let me ask you, what is VPX Planada?

17 A VPX Planada is a street gang, within -- in Merced County.

18 Q Are they aligned with any prison gangs, to your knowledge?

19 A My understanding of northern Hispanic street gangs is

20 this: That, with the exception of the Fresno Bulldogs, the New

21 Flowers, and the Northern Ryders, every other northern Hispanic

22 street gang is loyal to the Northern Structure and the Nuestra

23 Familia.

24 Q Would that hold true for the -- this other phrase here,

25 Norte 14, is that a street gang?

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1 A No, I'm not sure that, in this case, Norte 14 is a street

2 gang. My understanding is this, and I relate it to "Norte"

3 being north; 14, alphanumerically, corresponds to the letter N;

4 and N, or 14, as it relates to the prison-gang culture, is

5 representative of the Nuestra Familia.

6

So, when somebody has Norte 14, they're saying, "I'm from

7 the north, I'm loyal to the N"; "the N" being the NF or the

8 Northern Structure.

9 Q All right. Agent Marquez, can I have you turn your

10 attention to Exhibit No. 8, please.

11

(Request complied with by the Witness)

12 A I'm there.

13 Q Was this one of the documents you reviewed in the course

14 of forming your opinion?

15 A Yes.

16 Q Let me have you turn to No. 9.

17

(Request complied with by the Witness)

18 Q Do you recognize that exhibit?

19 A Yes, I do.

20 Q Was that also an exhibit you reviewed in the course of

21 forming your opinion?

22 A Yes.

23 Q And what conclusion did you reach after reviewing these

24 two exhibits, specifically focusing on Exhibit 9?

25 A After reviewing the document, I found Northern Structure

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1 gang-related symbols in the drawing.

2 Q Let me make this easy for you. I'm going to give you the

3 board here. Make sure I give you the right one.

4

MR. FEUDALE: Your Honor, I would like to have this

5 marked as Defendants' Demonstrative C -- no marking on this

6 exhibit -- if that's all right.

7

THE COURT: It will be marked.

8

(Defendant's Demonstrative Exhibit C marked for

9

identification.)

10

THE COURT: So, this makes about the tenth exhibit in

11 this case that's the same picture?

12

MR. FEUDALE: It is another identification of that

13 same picture, but it's the same one that's been used

14 throughout.

15

Now, if Your Honor would be amenable, may I have

16 Agent Marquez mark on this exhibit?

17

THE COURT: Of course.

18 BY MR. FEUDALE

19 Q Agent Marquez, could you mark the gang symbols that you

20 have seen there, and we will talk about them each. If you need

21 a pen, I'll give you one. A highlighter, even better.

22

I'll give you this blue highlighter, here.

23 A Okay.

24

(Request complied with by the Witness)

25 A The first symbols that I saw in the drawing was the No. 14

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1 (Indicating).

2 Q Can you explain the gang significance of that symbol?

3 A Okay. Again, based on my training and my experience, I

4 know that the number 14 corresponds alphanumerically to the

5 letter N, and, as it relates to the gang culture, the letter N

6 represents the Nuestra Familia/the Northern Structure.

7

Okay. Now, the number 14, as it's written, 1-4, the

8 Department of Corrections does not use that as an identifier

9 for Northern Structure. However, and we will probably get to

10 it with some of the other exhibits, I did a position paper on

11 behalf of the Department of Corrections, where the number 14 in

12 the Roman numerals XIV is accepted. Again, it's 14, but it's

13 just in a different variation.

14

I've read numerous debriefs, I've talked to numerous

15 active gang members that have told me that any time a northern

16 Hispanic has the number 14 on them, that it's indicative of the

17 letter N, again, representative of the NF in the Nuestro

18 Familia.

19

So for me, as a gang investigator, when I see the

20 number 14, either on a drawing or tattoos, I mean, it's one of

21 those clues that it's a sign that I need to look further.

22

So, the next thing that I saw was this here (Indicating),

23 which is a partial or half of the -- what is referred to as the

24 Huelga bird. The Huelga bird is an accepted identifier,

25 symbol, tattoo, recognized by the Department of Corrections as

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1 being used by the Northern Structure specifically for gang

2 membership.

3 Q Now, Agent Marquez, let me stop you there.

4

There's been testimony that the Huelga bird is really just

5 a symbol of the United Farm Workers movement, and it's not a

6 gang symbol.

7

Could you explain the correlation between the two?

8 A Okay. With the Huelga bird, its origins start with the

9 United Farm Workers, which are documented to have begun around

10 1961, 1962, as a movement to protect farm workers from being

11 oppressed.

12

The correlation, then, to the gang side of it, is you have

13 the Nuestro Familia, back around 1961-62, pulling away from the

14 Mexican Mafia, because of the oppression now being exerted upon

15 them by the Mafia. So you see the correlation, where the

16 United Farm Workers are doing this, organizing to stop the

17 oppression by the farm holders and all that kind of thing, so

18 there's that correlation.

19

Now, the Huelga bird, and I've seen this in numerous

20 writings that have been done by NF members and Northern

21 Structure members, I've talked to numerous informants, I've

22 read numerous debriefs, which all say that the Huelga bird is

23 the symbol utilized by the Northern Structure, that is

24 indicative of their membership.

25

In fact, much of the writings I see today clearly tell

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1 northern gang members, "Do not put this symbol on your body as

2 a tattoo, do not draw this symbol, because the Department of

3 Corrections will use that in the identification/validation

4 process."

5 Q Are there any other symbols that you see in that drawing?

6 A The Northern Star (Indicating).

7

Would you like me to explain how --

8 Q Yes, please.

9 A The Northern Star is a symbol that the Department of

10 Corrections recognizes as indicative of membership with the

11 Northern Structure. The idea being that it's said if you stand

12 directly on the North Pole and looked directly above you, you

13 are going to find the Northern Star. So, with that being the

14 case, any place that you are at, if you can locate the Northern

15 Star and travel that direction, you are headed true North.

16

How it correlates to the gang culture, the Northern

17 Structure, according to the writings I have seen by NF members

18 and Northern Structure members, is that this symbol was given

19 to the Northern Structure, as well as the Huelga bird, to the

20 Northern Structure for their identity.

21

Again, if a member has that tattoo on them, other Norteño

22 gang members can see this tattoo and know that, "If I follow

23 this individual, I will go true North, I will go in the path

24 that's been laid out for me by the Nuestra Familia."

25 Q Agent Marquez, have you seen these symbols that you have

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1 just mentioned, tattooed on any bodies of inmates that you have

2 debriefed or corresponded with, that are gang members?

3 A Numerous times.

4 Q Is there any exhibit you would like to show the Court

5 which could help supplement that testimony?

6 A Yes. I've provided you with some pictures of tattoos of

7 the Huelga bird, the XIV, the Northern Star, their gang name,

8 that I use when I teach at our gang investigators course, that

9 I use to teach in major conferences when I teach on prison

10 gangs, and, also, active gang members that I'm dealing with on

11 the streets in Northern California.

12

(Off-the-Record discussion)

13

MR. FEUDALE: Your Honor, I would like to mark this

14 as Defense Exhibit 344.

15

THE CLERK: Sorry.

16

(Defendant's Exhibit 344 marked for identification.)

17

(Witness examines document)

18 BY MR. FEUDALE

19 Q Agent Marquez, could you show the Court where these gang

20 symbols are on these pictures that you have?

21

First, let me ask you a foundational question: Did you

22 take these pictures?

23 A Half of them I did. The other ones were provided to me by

24 previous gang investigators.

25 Q Okay. Can you point out where the Huelga bird is on these

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1 pictures?

2 A If we're looking at the -- the picture that I'm looking at

3 now is, there's a Huelga bird, it is bordered by red.

4 Q Are you on the second page of this group of exhibit pages?

5 A Yes, yes.

6 Q Okay.

7 A And, at the bottom of the base of that bird, you see the

8 Roman numerals XIV, which correspond to the number 14.

9 Q Is this tattoo, was it taken on -- is this on the body of

10 a Northern Structure associate?

11 A Northern Structure member.

12 Q Member. Okay.

13

Any other Huelga birds in these pictures here?

14

(Witness examines photographs)

15 A The next page is a Huelga bird on the thigh of a Northern

16 Structure -- validated Northern Structure member/Nuestra

17 Familia member. Also, that Huelga bird has the number 14, in

18 the Roman numeral XIV.

19 Q Do you see any other Huelga birds?

20 A Yes. The picture below that is actually taken from a

21 slide that I use in my PowerPoint presentation when I teach on

22 prison gangs. And in that picture --

23

THE COURT: Which one, the one on the left or the

24 right?

25

THE WITNESS: The bottom picture, Your Honor

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1 (Indicating).

2

THE COURT: Right. But --

3 BY MR. FEUDALE

4 Q Of the collage of pictures, which picture are you

5 referring to?

6 A Upper right, middle right, bottom center.

7 Q Okay. Were those three pictures taken on the bodies of

8 Northern Structure members or associates?

9 A Yes, they were.

10 Q Do you see in these pictures the number 14 anywhere?

11 A Yes, I do.

12 Q Where is that?

13 A If we go back to the first set of pictures related to

14 tattoos, there is the number 14 on the ear of a parolee who is

15 a validated Northern Structure gang member, and we're looking

16 at him also as a Nuestra Familia gang member.

17 Q Are there any other 14s in this collage of pictures you

18 have?

19 A Going back to the collage of pictures, bottom left is the

20 number 14. And --

21 Q Was that taken on the body of a Northern Structure or

22 Nuestra Familia member or associate?

23 A Yes, it was. And also, again, within the Huelga bird

24 itself, is the Roman numeral for 14, XIV.

25 Q And, do you see any other 14s on the tattoos that you have

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1 illustrated here?

2 A On the last page of the tattoos, you have a 1 and a 4 on

3 the back arms of a validated Northern Structure prison gang

4 member, who I'm also looking at now as a Nuestra Familia gang

5 member.

6

And then, to the lower left, again, you have the Roman

7 numeral designator for the number 14, XIV.

8 Q In this collage of pictures that you have, do you see the

9 Northern Star anywhere?

10 A Yes, I do.

11 Q Where is that?

12 A The Northern Star would be on the collage, lower left,

13 surrounded by the number 14.

14 Q Which page are you on, sir?

15 A That would be the second one. The collage.

16 Q The lower left-hand corner, that picture?

17 A Correct.

18 Q Where the star's in the middle of the 1 and the 4?

19 A Correct.

20 Q Okay.

21 A And then also lower right, next to the word "Nuestra

22 Raza," which is the official name of the Northern Structure.

23 Q Are there pictures of the Northern Star or tattoos of the

24 Northern Star anywhere in these pictures, anywhere else?

25 A On the very first one, on the very bottom, that is on the

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1 leg of a validated Northern Structure member. He has four of

2 them.

3

And then also, on the very last page of the pictures,

4 bottom left, there's a Northern Star above XIV. And then on

5 the lower right, there's a Northern Star on the knee of a

6 Northern Structure gang member.

7 Q And the one on the right, was that also a Northern

8 Structure gang member?

9 A Yes.

10 Q Now, in your experience, Agent Marquez, could an inmate

11 unaffiliated with a prison gang be found in possession of such

12 symbols?

13 A He could, but it would be highly unlikely. And, in fact,

14 if a non-member of the gang tattooed those symbols on his body,

15 or was found in possession of a drawing that have -- had their

16 symbols, without the expressed authorization of the gang, he

17 would be targeted for assault.

18

In their culture, in the gang culture, it's a sign of

19 disrespect to the gang to identify yourself as a prison-gang

20 member or to utilize their symbols without being a member. You

21 end up being targeted for assault.

22 Q Could an inmate of a lower rank in the Northern Structure

23 hierarchy be found in possession of such symbols?

24 A If he was a member. Only if he was a member. If he's not

25 a member -- and when I'm talking about "member," if you're

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1 looking at somebody that's an associate, an associate is going

2 to do things for the gang, they are going to associate with the

3 gang, but they haven't been accepted into membership of the

4 gang, they won't have these tattoos, the Northern Star, the

5 Huelga bird, the XIV, put on their bodies or possess those

6 drawings because those are -- it would be like a trademark

7 infringement by non-members.

8 Q Now, Agent Marquez, turning back to the large drawing

9 there, do you see any indication that it was created by

10 Mr. Lira, that it was Mr. Lira's authorship?

11 A Yes, I do.

12 Q Could you show the Court where that is?

13

(Witness indicates on Exhibit)

14 Q What is that you just highlighted, sir?

15 A The letters h-i-n, which would be the three middle letters

16 of what I know to be Lira's documented alias of Chino, so

17 C-h-i-n-o. But on the headband of the individual there, you

18 see the h-i-n.

19 Q Based on your experience, do gang members put their names

20 on drawings -- put their names on drawings indicating gang

21 symbols?

22 A Yes, they do. It's similar to artwork. Picasso would

23 have some kind of identifier on his, Van Gogh have some kind of

24 identifier on his drawings, and the same is true, that it's

25 been my experience that when I look at drawings, with very few

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1 exceptions, the person who created the artwork puts some kind

2 of signature or some kind of identifier that he did it on the

3 artwork.

4

So, in this case, there were two things that I looked at:

5 One, I saw the partial word, the letters h-i-n, which are part

6 of his known alias of Chino, one; and two, what was documented

7 in the report where it said that Lira had asked -- indicated

8 that it was his artwork and wanted know when he was getting it

9 back.

10

Those two things led me to believe -- and the third thing

11 is, I didn't see anybody else's name on there who may have

12 drawn the thing.

13

So, I mean, there was those three indicators to me that

14 Lira created the artwork.

15 Q Now, there's been testimony in this case that an inmate by

16 the name of Freddie Leyba created the drawing, it was not

17 Mr. Lira's.

18

Is that possible, based on your experience?

19 A It's possible. But based on -- again, on what's in the

20 written report, and based on what I see in the drawing, and

21 based on what has been my -- you know, 23, almost 24, years of

22 experience of dealing with gang members and looking at their

23 drawings, I wouldn't say that that's plausible.

24 Q Agent Marquez, let me have you turn --

25

MR. FEUDALE: Before we do that, Your Honor, I would

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1 like to move in what's been marked as Exhibit -- 344 into

2 evidence.

3

THE COURT: Is there any objection?

4

MR. WHITE: Well, the -- Exhibit 344, my copy, at

5 least, includes as the first page something entitled "14 Bonds,

6 Condensed."

7

We haven't heard testimony about that. We were shown

8 this for the first time about an hour ago. We don't object to

9 the introduction of these photographs of the tattoos.

10

THE COURT: The last three pages, but we haven't

11 heard about the first page.

12

MR. FEUDALE: I can make that a separate exhibit

13 after testimony.

14

So is the last three pages of 344 are in evidence?

15

THE CLERK: We will just make that 345, now that we

16 are talking about it.

17

MR. FEUDALE: Perfect.

18

THE CLERK: Thank you.

19

(Defendants' Exhibit 345 marked for identification.)

20

THE CLERK: So, you admit 344, Judge?

21

THE COURT: Well, what is it?

22

THE CLERK: The photos?

23

THE COURT: The photos are 344.

24

THE CLERK: Yes, and 345 is the top sheet.

25

THE COURT: Then, yeah, 344 is in.

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1

THE CLERK: Thank you.

2

(Defendants' Exhibit 344 received in evidence.)

3 BY MR. FEUDALE

4 Q Agent Marquez, I would like to turn your attention to

5 Exhibit 4. And I caution you, this is a confidential report,

6 so please keep the identity of the informant confidential.

7 And, if we get to a portion of the testimony where you need to

8 get into specifics, let me know and we can speak with the Judge

9 about arrangements for that.

10

Do you recognize this exhibit?

11 A Yes. It was one of the documents that I was provided to

12 review.

13 Q And, did you find this document to be -- have any evidence

14 of gang significance?

15 A Yes, I did.

16 Q And what is that evidence?

17

What is significant about this document?

18 A Well, first of all, this document is a debriefing report,

19 dated September 25, 1992. It is the debriefing of a validated

20 Northern Structure gang member.

21

And, on Page 11 of that report, at the very top of the

22 report, it begins by stating that, "The informant supplied the

23 following list of individuals and their status."

24

And then 12 names down on that list is the name of Lira,

25 Ernesto, his prison number, his alias of Chino, his hometown of

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1 Merced. And his status, as known to the informant, was that of

2 a Northern Structure Cat 3, or Category 3 member.

3 Q And what does that mean, based on your training and

4 experience, that -- Mr. Lira's status indicated there?

5 A Okay. Within the Northern Structure and within the

6 Nuestra Familia, they operate off of a category system. And

7 the analogy that I would use is this, Your Honor, is that of

8 the Army; Category 1, being equivalent to a private. Those are

9 the guys that are going to do all of the grunt work, all the

10 dirt work.

11

Your Category 2 would be your platoon sergeants. Those

12 are the people who are responsible for giving direction, for

13 training, for teaching and ensuring that your Category 1 guys,

14 or your privates, are doing what they are supposed to do.

15

Your Category 3 individuals within the Northern Structure

16 are the equivalent of your commanding officers. Those are the

17 ones that have overall authority, that are casting direction,

18 vision. They're responsible for the overall security of the

19 area, and they are the ones that are directly reporting to the

20 Nuestra Familia.

21 Q Now, based on your training and experience, would an

22 inmate who is a Northern Structure Category 3, what association

23 would they have with the Nuestra Familia?

24 A It's been my experience that the guys that are at the top

25 level of the Northern Structure are holding leadership

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1 positions, are responsible for overseeing given areas, taking

2 direction directly from Nuestra Familia family members and

3 communicating back to them, things like their -- the number of

4 their members that they have in a given area, the numbers of

5 their enemies, the things that they have going on.

6

So there's going to be, because the NF is the parent

7 organization, the Northern Structure is passing this

8 information up, so that the NF can make decisions about the

9 activities that they are going to conduct in a given prison,

10 given facility, or on the streets.

11 Q Now, did you -- what, in your opinion, makes this

12 particular debriefing report, where -- it names Mr. Lira as a

13 Category 3 associate, what makes this informant reliable, in

14 your mind?

15 A Well, according to the California Code of Regulations,

16 Title 15, Section 3321, there are five criteria that we utilize

17 to determine and deem an informant to be reliable. And in our

18 rules, we only need one of those.

19

But, in this case, this informant met three of those

20 criteria: One, he self-incriminated himself in criminal gang

21 activity; number two, some of the information was corroborated

22 by other confidential sources; and three, some of the

23 information was proved to be reliable or credible through

24 investigation.

25 Q Let me ask you for a little bit of specifics on that.

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1

Do you recall from reviewing this report, where -- in

2 general terms, how the informant incriminated himself?

3 A One specifically that I remember reading had to do with

4 the fact that the informant stated that he and another gang

5 member took a knife or a prison-made weapon out to one of the

6 yards to stab an enemy of the Nuestra Familia. So, in that

7 case, he incriminated himself.

8 Q How about corroboration?

9

What did you find in here, what evidence do you see that

10 the information provided by the informant was corroborated?

11 A Well, beginning on Page 11, after the list of individuals

12 and their status as known by the informant, is a list of

13 documentation corroborating the statements made by the

14 informant.

15

THE COURT: Corroborating what statements?

16

THE WITNESS: The statements in the report, having to

17 do with fights on the yard, stabbing, assaults, possession of

18 weapons. There's a list.

19

THE COURT: So it corroborates the actual descriptive

20 discussion.

21

Is there anything in this list that corroborates the

22 names that appear immediately above it?

23

(Witness examines document)

24

THE WITNESS: No.

25

THE COURT: Thank you.

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1 BY MR. FEUDALE

2 Q Now, based on your knowledge of the Northern Structure,

3 and your experience, is there anything else which would make

4 this informant's statement -- I am talking about naming

5 Mr. Lira on a list of inmates -- a reliable indicator of

6 Mr. Lira's gang affiliation?

7 A Yes. Based on my experience and my interviews with

8 inmates and reading confidential documents, reading debriefs,

9 one of the things that the Northern Structure and the NF are

10 renowned for is their memorization of information,

11 specifically, rosters of individual gang members that are in

12 good standing with the gang and individuals that are in bad

13 standing with the gang.

14

And, it starts with when an individual comes to either a

15 county jail or a prison, the first thing that's required of a

16 Norteño gang member is that he fill out a new-arrival report.

17

That new-arrival report requests of the individual gang

18 member his complete name, date of birth, prison number, county

19 of commitment, commitment offense, relatives, places that he's

20 been incarcerated, offenses that he's committed.

21

Basically, they're filling out a background questionnaire.

22 Because then, that information is then forwarded to the

23 Northern Structure gang members, and they conduct a background

24 investigation on these individuals. And so --

25

THE COURT: Have you seen such applications?

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1

THE WITNESS: Yes, I have. On numerous occasions.

2

And, one of the things that they do, is they then

3 take that information, and if they don't have a current roster

4 to run his name across, it's -- a lot of this is committed to

5 memory, and they go down the roster and say, "Well, the

6 information that he's provided in his name and where he's been

7 corresponds to a good-news list or a membership roster, and

8 he's in good standing."

9

At that point, that gang member is then told, "You're

10 allowed to function with us."

11

On the other hand, if the information provided turns

12 out that the individual is on a bad-news list or a no-good

13 list, one of two things happen: Either he's immediately

14 assaulted and removed from the area because he's viewed as a

15 threat, or he's placed on freeze.

16

And, "freeze" being a term that is specific to the NF

17 and specific to the Northern Structure, where an individual is

18 told, "Okay, you are on freeze, you are allowed to participate

19 on a certain level, a very minimal level."

20

They are given enough information about enemy status

21 and how to protect themselves and how to protect the given

22 number of gang members there, but they're not given any

23 sensitive information, or any internal information about

24 criminal activities or things that they're involved in. It's

25 just on a -- in a very limited need-to-know basis so that they

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1 can protect themselves.

2 BY MR. FEUDALE:

3 Q Agent Marquez, that tipped me off to a very important

4 thing that I need to address with the Court.

5

MR. FEUDALE: If I could have a sidebar briefly?

6

THE COURT: All right.

7

(Sidebar held on the Record, and placed under seal)

8

(The following proceedings were then held in open

9

court:)

10 BY MR. FEUDALE

11 Q Agent Marquez, without naming any names, just giving

12 general terms, is there another reason, looking at Exhibit 4,

13 that you found this informant to be reliable?

14 A Yes.

15 Q What is that?

16 A On Page 7 of the debrief report is a roster of names,

17 their prison numbers, aliases, hometowns, and their status.

18 The informant, in this case, was able to provide an accurate

19 listing of not only who was there, but their status this case.

20

In this case, after reviewing this, based on my experience

21 and my knowledge of these individual gang members, there were

22 the leadership of the NF listed.

23 Q And, in particular, with respect to the report, is there

24 anything that the informant says which indicates his basis of

25 knowledge?

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1 A Yes. Based on the narrative of the report, the informant

2 in this case was one around the leadership of the NF, and it is

3 documented in the report that it's during this time, in the

4 early eighties, the beginning formation of the Northern

5 Structure.

6 Q Now, without mentioning any names, could you point to a

7 page and paragraph in this report, where the informant mentions

8 he's with a high-ranking leader of the NF.

9

(Witness examines document)

10 A Page 5, bottom paragraph. And the narrative of that is

11 that the informant states that they are the Norteños. And, at

12 this time, the Northern Structure isn't formed yet, but those

13 that are becoming part of the Northern Structure are being told

14 by the NF leadership, what they are to put down is their

15 request for a specific yard so that they can be out there with

16 the NF.

17 Q Are these individuals named in this paragraph you cited

18 to, are these leaders of the Nuestra Familia?

19 A They were.

20 Q Okay.

21 A In fact, one of them was the very first supreme general of

22 the NF.

23 Q Could you, without stating the name, point to the sentence

24 where that individual is named?

25 A It would be that bottom paragraph, five lines from the

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1 bottom.

2 Q What word does it start with, the sentence?

3 A "Nuestra."

4 Q Make sure I'm on the same -- we're on Page 5?

5 A Page 5, bottom paragraph, five lines from the very bottom.

6 It starts off "Nuestra Familia," and then gives the name,

7 alias, and CDC number.

8

MR. FEUDALE: Your Honor, may I approach the Witness?

9

THE COURT: Yes.

10

MR. FEUDALE: Let's see if I can see where you are

11 talking about.

12

THE WITNESS: I'm sorry, it looked like a 5. It's

13 Page 6.

14 BY MR. FEUDALE

15 Q This one right here (Indicating)?

16 A Correct.

17 Q Starts with this sentence, this one (Indicating)?

18

THE WITNESS: Sorry for that, Your Honor.

19

MR. FEUDALE: Your Honor, so I'm clear for the

20 Record, let me just ask Mr. Marquez a question.

21 BY MR. FEUDALE

22 Q You're referring to the sentence that starts with the

23 phrase, "He states that the general of the Nuestra Familia," is

24 that the one you are referring to?

25 A Correct.

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1 Q Thank you.

2

Now, I would like to turn your attention to Exhibit 51.

3

Did you review this exhibit in forming your opinion?

4 A Yes, I did.

5 Q And, did you find any gang significance of this particular

6 debriefing report?

7 A Yes, I did.

8 Q And again I caution you, since this is a confidential

9 document, if you feel that we are getting to a discussion which

10 would reveal the identity of the informant, please let me know

11 so I can confer with the Judge and opposing counsel.

12

What, what is the significance of this document?

13

Why did you find it to be significant of gang activity?

14 A To identify the document, it is a confidential memorandum,

15 it is a debrief of a Northern Structure prison gang member, and

16 it's dated April the 1st, 1998.

17

But, as it relates to Mr. Lira, the narrative of the

18 report pertaining to him starts on Page 4, bottom --

19 Q And what does the narrative say on Page 4, concerning

20 Mr. Lira's gang affiliation, if any?

21 A Starting with the third line from the very bottom, it

22 indicates that Mr. Lira received a copy of the bonds which are

23 the rules of the -- followed by the Northern Structure, and he

24 received those from a Nuestra Familia member, with a direction

25 that he was to have everybody learn them.

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1 Q Agent Marquez, is there an exhibit or a document that you

2 prepared which would help explain to the Court what the bonds

3 are of the Northern Structure?

4 A Yes, I did.

5 Q And is that the exhibit that has been marked 345?

6 A That's correct.

7 Q Could you explain to the Court what these bonds mean or

8 what they indicate in here?

9 A The Nuestra Familia operates -- their rules and

10 regulations are in what they refer to as their constitution.

11

THE COURT: Is that a written document?

12

THE WITNESS: Yes, it is.

13

And it's an evolving document, Your Honor.

14

THE COURT: A what?

15

THE WITNESS: An evolving document. I found the

16 latest version of that in February of 2007, at Pelican Bay.

17

What the Nuestra Familia did for their subordinate

18 gang, the Northern Structure, is they gave them these 14 rules,

19 which were to govern the daily activities and the structure of

20 the Northern Structure.

21

And, in this case, what I prepared for you, and it

22 says "Condensed," this is taken from the PowerPoint

23 presentation that I use to teach all over the state, regarding

24 the Northern Structure.

25

But these are their 14 rules, condensed it down

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1 without taking away the meaning or the intent of the rule,

2 itself.

3

THE COURT: And is this a written document, these

4 rules? Or --

5

THE WITNESS: Yes, Your Honor. We have -- it's

6 written by them, produced by the gang members. And we have

7 copies of those.

8

THE COURT: Are any of those going to be in evidence?

9

MR. FEUDALE: Not that I'm aware, Your Honor. We

10 haven't -- we haven't seen those.

11

This is just a summary Agent Marquez prepared to

12 assist the Court in his testimony today, but there's certainly

13 been nothing produced or in Mr. Lira's C-File concerning those

14 14 bonds.

15 BY MR. FEUDALE

16 Q You can continue.

17 A Going back to the debrief, according to the narrative, an

18 NF member gave to Mr. Lira a copy of the 14 bonds and the

19 instruction that he was to teach and instruct.

20

Although it says "Everyone, the" -- it can be assumed that

21 it specifically related to Northern Structure gang members, and

22 Norteño gang members that they are looking to recruit and bring

23 into the gang.

24 Q Now, with respect to this demonstrative exhibit you made

25 here, are there any bonds that you read here which are -- that

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1 you see correlate with the facts surrounding this case?

2 A Yes.

3 Q And what are those?

4 A Well, specifically, it would be Bond No. 1, that the

5 Norteños Soldados, which corresponds to Northern Structure gang

6 members, will strive to better education. So, in this case,

7 going back to this debrief, the Nuestra Familia member is

8 giving these to Lira to teach, and so thereby bettering their

9 education.

10

No. 3, is important in this case, is that all Northern

11 Structure members will strive for mainline status. That's

12 important in this case, because if you read that, I think it's

13 easy to connect the dots between A and B; A and B being, if you

14 are a Northern Structure gang member, you are going to be in

15 segregated housing once it's found out and you're validated.

16

So then it's incumbent upon the Northern Structure gang

17 member to do everything possible, absent debriefing or

18 cooperating with law enforcement, everything possible to get

19 out from under that validation and get back out to the

20 mainline.

21 Q Do you see evidence of that here?

22 A I believe that's what this case is really all about, is to

23 get out from under this validation, so that it's no longer

24 hanging over his head, whether he's on the streets or in

25 prison. And I hope that he never goes back, but if he ever

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1 went back, he wouldn't have that hanging over his head.

2 Q Is there any other bond in here that correlates to the

3 facts of this case?

4

(Witness examines document)

5 A Well, No. 7.

6

Previous, I believe previous testimony has indicated that

7 Mr. Lira has, on numerous occasions, attended classification

8 committees. And, during all classification committees,

9 Mr. Lira has been advised of the appropriate methods to

10 disassociate himself from the gang, one being six years

11 inactive status, or debriefing.

12

I'm, to this point, not aware, in any way, shape, or form,

13 that Mr. Lira has ever debriefed. So, therefore, he is, in a

14 sense, complying with Bond No. 7, where at no point is a

15 Northern Structure gang member to cooperate -- and in this

16 case, it says "the K9s," and that's the word that they use,

17 "the K9s" refer to staff -- they're not to cooperate with staff

18 in any way, shape, or form, because to do so is an act of

19 treason.

20

And in the federal system, if an individual is found

21 guilty of treason, it warrants the death penalty. And that's

22 how they see it, is if an individual debriefs or cooperates or

23 facilitates a law enforcement investigation, and it's found

24 out, the individual is targeted for death. They've committed

25 an act of treason.

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1

THE COURT: So you're saying that the -- the fact

2 that Mr. Lira has not ever accepted the gang validation is

3 proof of the gang validation, because if he were a member of

4 the gang he would never admit to it.

5

Isn't there a certain catch-22 involved in that

6 analysis?

7

THE WITNESS: Yes and no. If you were to take any

8 gang member that's active, prison gang member, and put them on

9 the stand and advise them that they're not to perjure themself,

10 I would say 99.9 percent of them are going to tell you that the

11 gang does not exist.

12

THE COURT: So it doesn't tell you anything, it seems

13 to me. You can't -- I don't see how you can say the fact that

14 he's not confessing means he is in the gang, any more than it

15 means he isn't in the gang. It's just neutral.

16

THE WITNESS: Except for that I would look at the

17 totality of the evidence that's already been presented, that

18 says that he is, and the fact that he's silent about it, to me,

19 is indicative that, "I can't say that I am, but I'm going to

20 fight this to the fullest."

21

Because if he admits that he's a gang member, he's

22 crossed that line.

23

THE COURT: Right. And wanting to get out of the SHU

24 to the mainline, that's proof that he's a gang member also.

25

THE WITNESS: If you look at the totality of the

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1 evidence.

2 BY MR. FEUDALE

3 Q Now, let me refer you, Agent Marquez, back to this report.

4

Is there anything else that is significant of gang

5 activity, that's memorialized in the report?

6 A We would go to Page 5.

7 Q And, before we talk about that event on Page 5, is there a

8 concern that discussing that event would reveal the identity of

9 this informant?

10 A Yes.

11

MR. FEUDALE: Your Honor, can I have a sidebar again

12 at this time?

13

THE COURT: I'll tell you what, let's do this: We

14 will take our morning recess and --

15

I guess, 15 minutes you need, Belle?

16

THE REPORTER: (Nods head)

17

THE COURT: We will take a 15-minute recess. Then,

18 when we start up, we will start up in a closed session, and we

19 will finish whatever we need to do with that, and then we will

20 proceed.

21

Okay?

22

MR. FEUDALE: Yes, Your Honor.

23

(Recess taken from 10:06 to 10:37 a.m.)

24

THE COURT: Are you ready?

25

MR. FEUDALE: Yes, Your Honor.

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1

THE COURT: Okay. You may proceed.

2

MR. FEUDALE: Your Honor, at this time we would like

3 to request that the courtroom be sealed.

4

THE COURT: All right.

5

(Whereupon the courtroom was closed, and proceedings

6

were held and then sealed)

7

(Recess taken from 11:08 a.m. to 11:13 a.m.)

8

(The following proceedings were held on the Record,

9

in open court:)

10 BY MR. FEUDALE

11 Q A few last questions for you, Agent Marquez.

12

Agent Marquez, there's been some testimony in this case

13 that Mr. Lira did not have any history of gang-related

14 activity, no criminal convictions for gang-related activity.

15

Would that affect your opinion concerning his status as a

16 validated gang member?

17 A No, it would not.

18 Q Why not?

19 A It's been my experience, I've known quite a few gang

20 members, prison-gang members, that had absolutely no

21 street-gang activity, membership, or convictions.

22 Q Do you have any examples of that, sir?

23 A Yes. They're confidential informants, though, now, so --

24 Q Could you speak in general terms or would it reveal their

25 identities?

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1 A It might reveal their identities.

2

MR. FEUDALE: We don't need to go into that at this

3 time, Your Honor.

4

THE COURT: All right.

5 BY MR. FEUDALE

6 Q How about, there's been testimony that Mr. Lira had no

7 criminal convictions for crimes of violence.

8

Would that affect your opinion regarding his gang status?

9 A No, it would not.

10 Q Why is that?

11 A While he may not have had any convictions on the streets,

12 when people are in prison and when they're associated with the

13 prison gangs, sometimes there is that carryover.

14

But, I mean, I would have looked at it and said, "Well, he

15 doesn't have a conviction on the street, but based on the

16 totality of the evidence that I reviewed, it would make that a

17 moot point for me."

18 Q In your experience as a gang investigator, both as an IGI

19 and with the SSU, have you ever come across an inmate who

20 didn't have any history of violence but was validated as a gang

21 member?

22 A Yes.

23 Q How many times, do you think?

24 A I couldn't give you a ballpark figure. I know that

25 recently, one of the things that we have looked at as an agency

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1 is the behaviors of these gang members. And, when -- in the

2 cases that we have looked at, we've seen volume after volume

3 after volume of information that they're involved in, that

4 they're doing things, but they haven't been issued rules

5 violation reports.

6

So, their disciplinary report history is very skinny; the

7 information that's provided by informants or through

8 investigation is quite extensive.

9 Q And that follows on my next question.

10

Have you seen incidents where inmates do not have a lot of

11 prison disciplinary reports for gang violence or for violence

12 or for gang activity, but are still -- there's still evidence

13 that they are gang members?

14 A Yes. And that's especially true -- I mean, once we

15 segregate them, the intention is, is that we keep them from

16 engaging in violent behaviors.

17

So, there have been people that have been validated as

18 prison-gang people who are then segregated, and because of that

19 segregation, they are not able to engage in any violent

20 behavior.

21 Q You have also heard testimony in this case, and I know we

22 touched upon this briefly, so I don't need to go into too much

23 detail now, but that the Huelga bird is just a United Farm

24 Workers symbol, it's not related to the Northern Structure.

25

What is the correlation between the two?

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1 A Well, first off, I would disagree with that opinion.

2 Q And why is that?

3 A One, based on the hundreds of debriefs that I've read,

4 where validated and self-admitted Northern Structure and NF

5 gang members have said that the Huelga bird is the symbol of

6 the Northern Structure.

7

Two, the number of tattoos that I've seen of the Huelga

8 bird on gang members.

9

And, three, as I testified earlier, the formation of the

10 NF in prison corresponded to what was happening on the streets

11 with the United Farm Workers.

12

And so, at that same time in the early sixties, while you

13 have the formation of the United Farm Workers, their cause was

14 against the oppression of the farm workers and their being

15 taken advantage of.

16

And so, the corresponding action is, in the prisons at

17 that time, is you had the NF, who did not like the oppression

18 that was being applied to them or the taking advantage of the

19 people in the race that later became the NF.

20

One of the things with the symbols, although it is not an

21 original symbol, I mean, obviously the symbol originated with

22 the United Farm Workers. The -- you know, for an example, the

23 swastika and the lightning bolts did not originate with white

24 supremacists, it originated with Hitler and his regime, but

25 it's used, and they have adopted that symbol.

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1

So the Mexican Mafia, they use the black hand. That is

2 not original to them, they took that from the Sicilian Mafia.

3

So these different gangs will utilize these symbols and

4 have not necessarily came up with them on their own, but they

5 use them for their purposes.

6 Q Agent Marquez, there's been testimony that the Code of

7 Regulations require the symbols be unique to the gang.

8 A Correct.

9 Q Based on your, you know, experience as a gang

10 investigator, what does that mean exactly, that phrase, to your

11 understanding?

12 A That it's unique to the gang? That other gangs aren't

13 using that.

14

And, to back up a little bit, one of the reasons that we

15 don't use, by itself, the number 14, the 1 and the 4, in

16 validating Northern Structure is that there are street-gang

17 members that use that. So it's not necessarily specific to the

18 Northern Structure.

19

The southern Hispanics use the number 13. Because -- we

20 have Mafia members that use the number 13, but so do

21 street-gang members. So it is not unique or specific to the

22 gang.

23

The Huelga bird, the Northern Star, are specific to the

24 Northern Structure. We don't see street-gang members putting

25 the Huelga bird on them if they're not part of the Northern

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1 Structure. Without there being some -- either they're a member

2 or they're going to be targeted for assault.

3 Q Now, you've testified that the Huelga bird is not unique

4 to the Northern Structure, in the sense that United Farm

5 Workers uses it?

6 A Correct.

7 Q So can you explain the discrepancy there?

8 A It's just that this gang, as -- utilizes that symbol.

9 It's in their writings. I've read numerous -- we refer to

10 them, Your Honor, as kites. They are little strips of paper

11 done in very, very small writing, and they are passed along

12 from prison to prison, from gang member to gang member.

13

And in their own writings, they say that the Huelga bird

14 and the Northern Star and the numbers XIV were specifically

15 given to the Northern Structure by the NF prison gang for their

16 use and for their use only.

17 Q And correct me if I don't understand your testimony

18 correctly.

19

Are you saying that your interpretation of the regs is

20 that the symbols must be unique to the prison gang, as opposed

21 to other gangs, street gangs and prison gangs --

22 A Correct.

23 Q -- versus, as distinct to the prison gang, as opposed to

24 the entire universe, the entire world?

25 A Correct.

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1

THE COURT: Now, that interpretation is derived from

2 what?

3

I mean, what do you base that on?

4

THE WITNESS: The number of debriefs that I've

5 read --

6

THE COURT: No, no, no, no, to say "unique" doesn't

7 mean unique, what do you base that on?

8

THE WITNESS: Well, it's unique to the gang. We

9 don't see Aryan Brotherhood putting Huelga birds on them. We

10 don't see Black Gorilla Family putting Huelga birds on them.

11 The only gang that puts the Huelga bird on them is the Northern

12 Structure and the NF. So it's specific to them.

13

THE COURT: Well -- okay.

14 BY MR. FEUDALE

15 Q Agent Marquez, there's been testimony that Mr. Lira didn't

16 draw the drawing. We talked about this earlier, and I won't

17 get into that again. But let's assume, just for the sake of

18 argument, that Lira did not draw this drawing, that another

19 inmate did.

20

Would that change your opinion as to whether this is

21 significant of gang activity?

22 A No.

23 Q Why is that?

24 A One, based on the symbols that are in the drawing.

25

Two, it's documented in the report that Lira -- it was

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1 found in the possession of Lira.

2

And there's a statement attributed to Lira that he asked

3 for his drawing back.

4 Q There's also been testimony that there was a -- a bit of a

5 delay between, if you look at Exhibit 10 -- no, I'm sorry,

6 Exhibit 8.

7

If you will notice, that event occurred on, looks like

8 December 11, 1992. However, the date on the chrono there at

9 the bottom is May 10, 1993, some six months later.

10

Does that affect your opinion as to the significance of

11 these gang symbols you have spoken about?

12 A No. And that would be based on my own personal experience

13 as a gang investigator. One of the things that ends up

14 happening besides -- gang investigators are not only assigned

15 to do investigations with gangs. Like, in my case, I also

16 oversaw the security of the institution. I was also given

17 other assignments by the Warden relative to appeals and other

18 investigations.

19

So, it's been my own personal experience that we have gone

20 and searched the personal property of gang members. When we

21 take the property out of the cell, we label it with the name,

22 the number, and the cell, the date of -- where we are taking it

23 from and who we're taking it from. We take it back to our

24 office, we search it. The things that we are looking at for

25 gang activity, we put those into what I would term a working

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1 file. We return the rest of the property. I may or may not

2 have the opportunity to document that right away.

3

And, in this case, that may have been the -- I know

4 personally what I've done is, I've had these working files, as

5 I got a chance, I came back and fully documented everything

6 that was in that file.

7 Q Agent Marquez, I would like to turn your attention to

8 Exhibit 49. If you could just read that for a second and let

9 me know when you're done.

10

(Witness examines document)

11 A Okay.

12 Q There's been testimony that this exhibit may possibly

13 refute Exhibit 6, Romero's original incident report.

14

Would you concur with that assessment?

15 A No.

16 Q Why not?

17 A My assessment would be as, irrespective of the gang status

18 validation by law enforcement at that time, doesn't mitigate

19 that fact that Lira, in concert with a validated member and

20 other northern Hispanics, engaged in a gang behavior on that

21 day. So whether he was validated at that time or not is

22 irrelevant.

23 Q You've also heard testimony -- and this is referring to

24 Exhibit 4, the first debriefing report -- that the Department

25 has discontinued the use of the list, such as on Page 11, where

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1 Mr. Lira was named.

2

Are you aware of that?

3 A Yes.

4 Q Does that in any way affect your opinion as to whether or

5 not this particular exhibit is reliable evidence of gang

6 activity?

7 A No.

8 Q Why is that?

9 A Two reasons: One, if you go back to the original date of

10 the document, right above that list, the informant attributes

11 the names, monikers, and the status as known to him on the date

12 that he give the list, one.

13

Number two, prior to September, 2004, and the

14 implementation of the Castillo settlement, the use of what has

15 been termed "the laundry list" was an entirely acceptable

16 practice for use in gang validations.

17 Q Why was that?

18

Do you know?

19 A No, I do not.

20 Q Now, there's also been testimony that Mr. Lira should have

21 been provided what's been called a 1030, or confidential

22 disclosure form, when the -- this is Exhibit 51. When this

23 exhibit was first drafted in, looks like April 1st of 1998, you

24 were a gang investigator at Pelican Bay, of course.

25

Does that comport with your knowledge of how these

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1 confidential disclosure forms are distributed?

2 A Yes and no.

3 Q Okay. Can you explain?

4 A One of the things that I -- I can tell you what I did.

5

Upon completing my investigation, I never notified the

6 inmate ahead of time that I was looking into his activities

7 because that would have compromised an ongoing investigation.

8

If he knew I was looking at him, he would have -- could

9 have -- could have diminished what he was doing on the phones,

10 through the mail, his associations. He could have destroyed

11 evidence in the cell. So we don't go out and tell inmates,

12 parolees, that we're investigating them regarding their gang

13 status.

14

Now, what I did prior to Castillo, the Castillo

15 settlement, after I compiled my investigation, I would go to

16 the inmate, I would serve him with the non-confidential

17 documents, serve him with the 1030s, the confidential

18 disclosure forms, and advise him that I was submitting that to

19 SSU for their review and advise him of his appeal rights.

20

But also letting him know he really couldn't -- had

21 nothing to appeal at that point because no action had been

22 taken against him. But once SSU codified the validation in the

23 form of a 128-B-2, then, yes, action was going to be taken

24 against him.

25 Q And, based on your training and experience, when were

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1 those forms, as Departmental policy, given, provided to the

2 inmate, these confidential disclosure forms?

3 A The only time that I have seen confidential information

4 disclosure forms, the 1030s, issued to inmates is when there

5 was going to be a negative impact upon the inmate, whether it's

6 his classification, his housing, whatever?

7

You know, I know that there's an argument out there

8 against the Department that any time an informant provides

9 information, we should turn right around and issue

10 people 1030s. But it's been the departmental practice that we

11 only issue those when there is going to be an adverse or

12 negative affect upon the individual that the information is

13 being disclosed to.

14 Q Agent Marquez, after reviewing all this information, what

15 is your conclusion concerning the evidence used to support

16 Mr. Lira's validation?

17 A My opinion is, is that he was appropriately validated.

18 However, as I testified earlier, based on the totality of the

19 evidence, had I submitted it or had I reviewed it, I would have

20 indicated that he was a member of the Northern Structure.

21

However, that does not diminish the fact that he was

22 validated as an associate.

23

MR. FEUDALE: Thank you, Agent Marquez.

24

No further questions, Your Honor.

25

THE COURT: Thank you.

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1

Mr. White?

2

MR. WHITE: Thank you, Your Honor.

3

CROSS EXAMINATION

4 BY MR. WHITE

5 Q Good morning, Mr. Marquez.

6 A Good morning, sir.

7 Q We've never met.

8 A No, sir.

9 Q Following up on that last point before we lose track of

10 it, Mr. Marquez, you were testifying that, according to

11 Departmental policy and practice, an inmate is to receive

12 a 1030 disclosure form about an inmate briefing report at least

13 as of the time that the report is used to support some adverse

14 action against the inmate.

15

Is that right?

16 A Correct.

17 Q And, certainly validating the inmate as a Northern

18 Structure associate would constitute adverse action for these

19 purposes?

20 A Yes, sir.

21 Q Well, that Departmental policy and practice wasn't

22 followed in Mr. Lira's case, was it?

23 A It doesn't appear that he was issued a 1030 at the time of

24 the submission of the documents, that's correct.

25 Q Or indeed, for years later. Let's take a look. The --

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1 the September, 1992, debriefing report, you've testified about,

2 Exhibit 4 --

3 A I'm there.

4 Q -- bears a date of September 25, 1992?

5 A That's correct.

6 Q Turn to Exhibit 41.

7

(Request complied with by the Witness)

8 Q Do you have that?

9 A Yes, sir.

10 Q It's a 1030 form, isn't it?

11 A Yes.

12 Q It's a 1030 form to Mr. Lira, regarding this same

13 September 1992 debriefing report?

14 A That's correct.

15 Q This is dated October 18, 1996?

16 A That's correct.

17 Q More than four years later?

18 A Yes, sir.

19 Q Mr. Lira, by this point, was at Pelican Bay SHU.

20 A I'm -- I would have to look at the housing records.

21 Q He arrived there in September, September 24th, I believe,

22 1996.

23

Are you familiar with that?

24 A If you showed me the housing records. But I'll agree with

25 you, yes, sir.

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1 Q So he was already at Pelican Bay SHU four years after this

2 report.

3

That's the first time, through this 1030 form, that he

4 even learned of the existence of this debriefing report as one

5 of the validating items against him, true?

6 A Correct.

7 Q Now, let's talk about these evidence items. And we can --

8 well, we can stay with this debriefing report a bit.

9 A Item No. 4?

10 Q Yes, we are still on 4.

11

It's the classic laundry-list debriefing identification of

12 Mr. Lira, isn't it?

13 A No.

14 Q Well, you referred to it as a laundry list debriefing

15 report and identification of Mr. Lira in your Rule 26 report,

16 didn't you, on Page 3?

17

I'll quote for the Record (As read): "Lira is identified

18 as an NS/NR member by the informant. This identification is in

19 what is commonly referred to as a laundry list."

20 A Okay.

21 Q Recall that?

22 A Yes.

23 Q Is that term familiar to you?

24 A Yes, it is. And the discrepancy in what I was about to

25 tell you is that the current format that we use is different in

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1 that, in this case right here, it says that the informant

2 supplied the following list of individuals and their status.

3 Q Right?

4 A And what we refer to as laundry lists now, they are

5 formatted differently, and they're -- we sometimes -- or don't

6 have that little caveat there that identifies this is what --

7 this is how the informant knew them to be.

8 Q All right. So this is a laundry list from back in the

9 day, I guess.

10 A Correct. A little different from what I'm used to today.

11 That's the difference.

12 Q Well, let's see if we can't locate some commonalities

13 here.

14

Laundry lists, including this one, since the amendment to

15 Section 3378 in the regulations, is no longer been acceptable

16 as a validation evidence item, isn't that true?

17 A Since September of 2004. Since the Castillo settlement.

18 Q The Castillo settlement was what produced that change in

19 the regulations by amendment at that time, isn't it true?

20 A On a prospective basis, from that date forward, we were no

21 longer allowed to use laundry lists, but it did not negate the

22 use of the laundry list prior to that, and it did not,

23 according to the settlement, affect any of the validations

24 prior.

25 Q Yes. But that change was made following the Castillo

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1 litigation in recognition of the inherent unreliability of

2 laundry-list debriefing-report identifications, isn't that

3 true?

4

MR. FEUDALE: Objection; argumentative, lacks

5 foundation.

6

THE COURT: Sustained.

7

It was ordered. It was part of the settlement,

8 right?

9

MR. WHITE: There was no order.

10

THE COURT: So it was a settlement.

11

MR. WHITE: There was an agreement.

12

THE COURT: Yes.

13

MR. WHITE: There was an agreement.

14 BY MR. WHITE:

15 Q And the Department -- and the Department, from its end of

16 the agreement, agreed to the amendment of the regulation, based

17 on the acknowledgment that laundry-list debriefing

18 identifications were inherently unreliable, isn't that true?

19

MR. FEUDALE: Objection; argumentative, lacks

20 foundation, and actually assumes facts not in evidence.

21

THE COURT: Was there some acknowledgment of that

22 sort?

23

Because if there was, you can bring that in.

24 BY MR. WHITE:

25 Q Well, there was -- there was testimony developed in the

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1 course of the Castillo litigation, itself, about the inherent

2 unreliability of laundry-list debriefing reports, isn't that

3 true?

4 A Could you redo the question for me? I'm sorry.

5 Q Isn't it true that the Castillo litigation developed

6 evidence, including sworn testimony from CDCR personnel, that

7 laundry-list debriefing-report identifications were unreliable?

8

MR. FEUDALE: Objection; lacks foundation.

9

The Witness hasn't testified he knows anything about

10 the details of what occurred during the Castillo settlement.

11

Also assumes facts not in evidence.

12

THE COURT: I don't know about the facts not in

13 evidence, but I agree with the foundation part.

14

If you are going to ask him specific questions like

15 that, you had better find out what he does know about the

16 testimony in that case.

17 BY MR. WHITE:

18 Q Do you know anything about the Castillo litigation or the

19 evidence developed in that litigation that may have led to this

20 agreement that laundry-list debriefing reports would no longer

21 be used?

22 A I wasn't party to any of the court testimony, depositions.

23 I only know what has been provided to us by the Department as

24 the written form of the settlement and what we can and can't

25 do.

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1

I do, however, personally know and have had lengthy

2 discussions with Mr. Steve Castillo regarding this settlement,

3 wherein he has related to me that the only thing he was ever

4 after was due-process issues and had nothing to do with

5 whatever the Department conceded to.

6 Q I'm unclear on what you're telling us. But, but, are you

7 saying, Mr. Marquez, that you have never learned at any point

8 from any source what motivated the Department of Corrections to

9 agree, as an element of the Castillo litigation settlement, to

10 formally revise the Department's regulations to no longer

11 permit laundry-list debriefing reports to serve as validation

12 evidence items?

13 A In the context of what you're asking me, whether it's

14 reliable or unreliable, I don't know. I wasn't party to any of

15 that. I can only tell you that we have, as an agency, been

16 provided the stipulations of the settlement and given training

17 on how we are to implement those stipulations.

18

But what was agreed to or not agreed to, I wasn't party to

19 that, so I can't effectively speak to that.

20 Q Well, Mr. Marquez, if, indeed, that regulation amendment

21 was based on the Departmental recognition of laundry-list

22 debriefing reports as inherently unreliable, there wouldn't be

23 anything merely prospective in force or application to that

24 reality, would there?

25

MR. FEUDALE: Objection; argumentative.

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1

THE COURT: Overruled.

2

You can answer that.

3

THE WITNESS: My understanding of the settlement is

4 that from the date of its implementation, we won't use laundry

5 lists. But it did not affect or impact any validation prior to

6 the agreement.

7 BY MR. WHITE:

8 Q Mr. Marquez, this particular laundry-list identification

9 of Mr. Lira, I think we've all agreed, is nowhere substantiated

10 anywhere else in the report in terms of supporting or

11 corroborating information. True?

12 A Correct.

13 Q You're of the opinion, if I understand your earlier

14 testimony, that the likely -- nobody knows, but in your

15 opinion, the likely source of information such as this

16 (Indicating), in laundry lists such as this, would come from

17 inmates memorizing lists of names?

18

Is that right?

19 A Memorizing lists of names, having lists of names. If I

20 could give you an analogy to explain how I would get there.

21 Q You don't need to do that, and we heard your earlier

22 testimony. But that, in your view, is most probably where

23 these laundry-list identifications we can read in this report

24 came from; some inmate at some point memorized some list of

25 names. True?

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1

THE WITNESS: In order for me to answer that, Your

2 Honor, I might have to give up some information about the

3 informant, which might be detrimental to him in the future.

4 BY MR. WHITE:

5 Q Can't you just answer the question yes or no?

6 A Not really. I mean, if you're -- how might this informant

7 know Mr. Lira would go -- would disclose, I think -- it might

8 give him some clue as to who the informant might be.

9 Q Well, it sounds like it would only be a speculative clue,

10 since we don't know.

11

My question keys to your earlier testimony. I thought

12 there was some point made of this in your direct examination.

13 It is talked about in your report as well, your Rule 26 report.

14

It's your view that the likely source of this information,

15 this laundry-list identification of Mr. Lira in this report,

16 came from some list, right, some memorized list of inmate

17 names?

18 A That's one potential way that he may have known him.

19 Q Let's turn to the yard-incident report. It's Exhibit 6.

20

(Request complied with by the Witness)

21 A I'm there.

22 Q We've noted earlier that this typed version of the

23 yard-incident report was prepared a full year after the

24 incident?

25 A Correct.

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1 Q As a trained investigator, Mr. Marquez, does that

2 circumstance by itself raise any questions in your mind about

3 the accuracy or reliability of the information in this typed

4 version?

5 A No.

6 Q None at all?

7 A No.

8 Q Well, let's compare it to the more contemporaneous version

9 of the same incident. This is Exhibit 1.

10 A Okay, I'm there.

11 Q This was apparently written the same day or the day after.

12 A Correct.

13 Q Wouldn't you suppose that this would be the more accurate

14 and reliable version of what occurred?

15 A You could assume that.

16 Q I do assume that.

17

Would you assume that?

18 A Yes.

19 Q All right. Now, you said earlier in your direct

20 examination that the only difference of any significance you

21 noted between the two versions was that the quoted remark of

22 Mr. Lira appears in the year-later typed version?

23 A Correct.

24 Q But it's nowhere to be found in the original,

25 contemporaneous, handwritten version.

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1

True?

2 A Correct.

3 Q Doesn't that circumstance alone raise any questions in

4 your mind about the accuracy and reliability of the typed

5 version, at least as regard to this quoted remark from

6 Mr. Lira?

7 A No. And the reason I would say that is because the

8 important facts, the gang-related activity is that -- and I've

9 stated this before -- Mr. Lira acted in concert with a

10 validated gang member, that's in both the handwritten and the

11 typed version.

12

There was an incident that precipitated them being placed

13 out on the yard. That's in both versions.

14

Lira acted in concert with a validated member. That's in

15 both versions.

16

They approached the Sureño gang members, that's in both

17 versions.

18

They challenge them, that's in both versions.

19

The officer believes that there's going to be a

20 gang-related fight. That is in both versions.

21 Q And I appreciate that testimony, Mr. Marquez, but you're

22 describing the doughnut here, and I'm trying to focus on the

23 hole.

24

This quoted remark, which I gather from your earlier

25 testimony you regard as having very special gang significance

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1 as relates to Mr. Lira here, in the incident as described,

2 true?

3 A I wouldn't say "special," but yes, it has gang

4 significance, yes.

5 Q Well, don't you think that Sergeant Romero, when he made

6 the original handwritten report the day of the incident itself,

7 or the following morning, meant to put down in that report

8 everything significant? Everything gang-significant regarding

9 this encounter?

10

MR. FEUDALE: Objection; calls for speculation.

11

MR. WHITE: I'm simply asking him as a trained

12 investigator.

13

THE COURT: You may answer, sir.

14

THE WITNESS: I would look at it, and yeah, I would

15 wonder why he wouldn't put that, but it didn't change for me --

16 looking at the document from the standpoint of reviewing it for

17 a gang validation, the things that I've testified to were in

18 both reports.

19

This extra comment, while it might seem odd, doesn't

20 negate the other facts of the thing. And, to my knowledge,

21 there has -- there is no information that Officer or Sergeant

22 Romero, in any way, shape, or form, falsified or perjured

23 himself in preparing the documents.

24 BY MR. WHITE:

25 Q I didn't mean to suggest anything of the sort with my

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1 questions. But we had some later input from Officer Romero on

2 the subject we will turn to in a few minutes.

3

But first, Mr. Marquez, staying with this point for just a

4 moment longer, isn't the quoted remark from Mr. Lira, imputed

5 to him in the later typewritten report, conspicuous in it's

6 been absence from the original handwritten version?

7 A Yes.

8 Q You said you would wonder about that difference a moment

9 ago.

10

If you were the assistant IGI in charge of this validation

11 investigation, wouldn't you have investigated that discrepancy,

12 looked into it?

13 A I don't know.

14 Q I'm sorry?

15 A I don't know that I would have because, again, I guess I

16 default back to the consistencies of the actions.

17 Q Well, let's talk about that for a moment.

18

You noted only one difference thus far between the two

19 reports, which is this quoted remark, but take a look at

20 something else, if you would.

21

Do you see how, in the original handwritten report, in the

22 text, there are two inmates identified as instigators or

23 leaders here. And it's Inmate Morales and Inmate Hernandez.

24

Do you see that?

25

MR. FEUDALE: Objection, Your Honor, mischaracterize

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1 the evidence. This report does not say that neither of them

2 were instigators, leaders. It merely says they tied their

3 shoes.

4

MR. WHITE: Well, but --

5

THE COURT: Overruled.

6

You can ask a question, the Witness can explain.

7

MR. WHITE: Thank you.

8

THE COURT: But don't characterize, if you can avoid

9 that, please.

10

MR. WHITE: I was just asking if the Witness,

11 himself, would so characterize this information.

12 BY MR. WHITE:

13 Q The report, the report describes this tying of the shoes

14 as having special significance in the context of the incident,

15 itself. Right?

16 A Correct.

17 Q It says, I'll quote (As read): "Hernandez and Morales

18 started to tie their shoes. That's when I knew something was

19 going to go down."

20

Isn't that what it says?

21 A Yes.

22 Q There's no mention at all of Mr. Lira doing anything in

23 the text of this report, true?

24 A That's -- in that specific sentence, correct.

25 Q Well, anywhere else in the text. Take your time and look.

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1

Is he mentioned anywhere, is any activity, any conduct,

2 any associational effort anywhere described for Mr. Lira in the

3 text of this report?

4 A Are you including the list of the names as part of the

5 text?

6 Q No. We will get to the list in a moment. That's at the

7 top. I'm talking about the narrative description of what

8 happened.

9 A I will say that he's identified under the heading of

10 "Norteños."

11 Q Thank you.

12

Now, if you turn over to the typewritten version,

13 Exhibit 6, you'll see that version also describes two inmates

14 who were leaders or instigators here, but instead of Morales

15 and Hernandez, it's now Morales and Lira.

16

Do you see that?

17 A Along with Hernandez. Hernandez is later identified.

18

Correct.

19 Q No, but I'll quote again (As read): "The two main inmates

20 that were doing the most questioning and intimidating were

21 Morales and Lira."

22 A Which is a different activity than tying your shoes.

23 Q Well, do you see that anywhere in the original handwritten

24 report?

25 A That Lira and Morales are questioning? No.

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1 Q Yeah, that those two --

2 A Right.

3 Q That those two now are suddenly leading this thing,

4 Morales and Lira, instead of Morales and Hernandez.

5

Did you note that difference when you reviewed and

6 compared these two reports as a part of your evaluation here?

7 A Yes, I noted it.

8 Q Did you regard it as significant at all?

9 A No.

10 Q Did it cause you in any way to question the accuracy or

11 reliability of this year-later typewritten report?

12 A No.

13 Q Turn to Exhibit 49.

14

We looked at this earlier?

15 A Correct.

16 Q This is a letter from Officer Romero, dated 3-8-98. It is

17 addressed, "To Whom it May Concern."

18

Are you familiar with this?

19 A Yes, I've seen it.

20 Q Do you know the circumstances of this letter?

21

Are you familiar with any of the testimony in the course

22 of this trial about that?

23 A No, I'm not.

24 Q You don't know -- you don't know how this was secured or

25 prepared by Officer Romero?

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1

You don't know anything about the context of this?

2 A I know about the context.

3

You asked me if I'm aware of any testimony regarding this.

4 I'm not aware of any testimony, no.

5 Q Well, you're aware, I gather, but tell me if I'm wrong --

6 A Of the context, correct.

7 Q You are aware, in terms of context, that Mr. Lira rotated

8 back out of Pelican Bay to Merced County Jail for a

9 resentencing in March of 1998, had a chance to speak with

10 Officer Romero at that point, true?

11

(Witness examines document)

12 A I don't -- I don't know if he spoke to him. I don't -- I

13 don't remember seeing any reports about any conversation they

14 had.

15 Q Wasn't that how he secured the letter? Back in March --

16

MR. FEUDALE: Objection; calls for speculation.

17

THE COURT: Well, maybe you should find out what he

18 does know, because if he's reviewed all these matters and there

19 are things he doesn't know about them, it might affect the

20 reliability of his opinion. I don't know.

21

So don't assume he does, if Counsel is right, don't

22 assume that he does. But I think it is important to explore

23 what he doesn't know.

24

MR. WHITE: And I had just been trying to do this.

25 We were talking in generalities about circumstances and

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1 context. I was just trying to find out in much more specific

2 and concrete terms what Mr. Marquez's understanding was about

3 that.

4 BY MR. WHITE:

5 Q Do you know whether or not, do you know whether or not

6 Mr. Lira secured this letter from Officer Romero in March

7 of 1998, when he rotated back to the Merced County Jail for

8 resentencing, had a chance to speak to Officer Romero at that

9 point, explained the situation he was in, Pelican Bay SHU,

10 based in part on the original yard-incident report, and Officer

11 Romero, in response, offered to Mr. Lira to write this letter

12 (Indicating).

13

Are you aware of that?

14 A I'm not aware of that. The context of which I'm aware

15 that this exists has to do with Lira allegedly, there's -- in

16 the typed version of the report, there's some -- there's an

17 identification of Lira, slash, and then there's an

18 identification of him possibly as a Northern Structure gang

19 member.

20

That's the context of which I understand this (Indicating)

21 to exist. That --

22 Q I'm sorry, this letter, you are referring to the letter?

23 A Right.

24

That he may have inadvertently been identified by the

25 Merced County Jail, by Officer Romero as being a Northern

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1 Structure gang member.

2

That's the context of which I understand this (Indicating)

3 to exist, to clarify that they do not have in their database or

4 in their records any information that indicated he was Northern

5 Structure.

6 Q Well, let's -- let's set your context aside for the

7 moment, and stick with mine.

8 A Okay.

9 Q If you accept what I've represented to you as factual,

10 would that affect your opinion at all about this letter

11 (Indicating) and its significance or, indeed, the original

12 typed yard-incident report and its significance?

13 A It would affect my opinion if there was more than just the

14 information that's contained in this letter. If Romero had, in

15 fact, stated, "I misidentified you, you weren't one of those

16 guys that was involved," or any of a number of statements that

17 he could have.

18

But the context of what I understand this letter to be,

19 that I'm accepting that Romero provided to Lira, it just talks

20 about the gang validation status at the time of the incident.

21 Q Well, Mr. Marquez, isn't this letter a written

22 communication from Mr. Romero to CDCR, trying to explain that,

23 according to Merced County Jail -- and they've had Mr. Lira in

24 confinement there over a number of occasions -- he is not known

25 to that jail to be gang-affiliated.

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1

Isn't that what --

2

MR. FEUDALE: Objection; mischaracterizes the

3 evidence. It does not say that in this exhibit, Your Honor.

4

THE COURT: Do you --

5 BY MR. WHITE:

6 Q My question is, isn't it your -- isn't it your opinion,

7 wouldn't you acknowledge that that's what Officer Romero, in

8 context, was trying to communicate here?

9

MR. FEUDALE: Your Honor, I object again. That calls

10 for speculation and it's mischaracterizing the evidence. It

11 clearly does not say here. It just says there's no gang

12 validation, not "gang affiliation."

13

THE COURT: Well, I'll sustain the objection because

14 I think we're getting argumentative here. He said what he

15 said. So -- I'll sustain it.

16 BY MR. WHITE:

17 Q Mr. Marquez, take a look at 53.

18

(Request complied with by the Witness)

19 Q Do you recognize this?

20 A Yes.

21 Q Do you consider this as a part of the set of materials you

22 were asked to evaluate?

23 A Yes.

24 Q By the way, this is a transmittal of the Romero letter to

25 SSU, for some sort of guidance, by Sergeant Piland.

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1

This was also back in '98, July of '98, true?

2 A Correct.

3 Q And here in the middle of this fax transmittal sheet it

4 states, I'll quote for the Record (As read): "One of the

5 sources reviewed for validation has been rescinded by the

6 author."

7

Do you see that?

8 A Yes, sir.

9 Q Do you take or understand that to be a reference to the

10 original typed yard-incident report and Sergeant Romero's

11 subsequent March, 1998, letter that we have just discussed?

12 A My understanding of that is the rescinding of the

13 handwritten one, that is now replaced by the typed version.

14 Q That's what you believe this signifies?

15 A Yeah, because it doesn't show what was faxed.

16 Q All right, let's move on. Exhibit 108.

17 A I'm there.

18 Q Have you seen this before?

19 A No, I have not.

20 Q It wasn't included in the set of materials you were

21 provided by defense counsel to review and evaluate as part of

22 your assignment?

23

MR. FEUDALE: Your Honor, I object.

24

If you clearly look at this date, and you look at

25 Officer Marquez's report, Agent Marquez's report, his report

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1 came out two months prior to when this report, or when this

2 declaration was signed, and, indeed, three or four months

3 before it was produced to our office. And I have the report,

4 if you would like to see that, as well.

5

THE COURT: Well, but it's two years ago.

6

MR. FEUDALE: Right. But the question was, if he --

7 if he reviewed this document --

8

THE COURT: Provided a copy of this by you.

9

That's right. The question was, did he ever see it

10 and did you ever give him a copy of it.

11

MR. FEUDALE: In preparation for preparing his

12 report, was the question.

13

MR. WHITE: I'll amend the question.

14 BY MR. WHITE:

15 Q Did defense counsel ever furnish you with a copy of this?

16 A No, I haven't seen this report. This is the first time

17 I've seen it.

18 Q Well, are you able to recognize it as a declaration under

19 oath from Sergeant Romero?

20

(Witness examines document)

21 A Yes.

22 Q It discusses, among other things, this yard incident and

23 the two versions of the yard-incident report?

24

(Witness examines document)

25 A Would you give me a minute to review the --

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court
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1 Q Please, no. If this is your first time, go ahead. Take

2 your time. I don't want to rush you.

3

(Witness examines document)

4 A Okay.

5 Q Mr. Romero, in this declaration describing the incident,

6 the yard incident, states among other things, I'm looking at

7 Paragraph 15, and I'll quote (As read): "There was no

8 difficulty in avoiding any trouble and no fight started."

9

Do you see that?

10 A Correct.

11 Q Paragraph 16, "There was nothing I saw Lira do that

12 indicated that he was trying to instigate a fight."

13

Do you see that?

14 A Correct.

15 Q 18 (As read): "I couldn't say that Lira was trying to

16 start trouble. I can't say that Lira was a problem-maker at

17 that incident."

18

Do you see that?

19 A Correct.

20 Q Paragraph 19 (As read): "Afterwards, Lira told me he was

21 just playing."

22

Do you see that?

23 A Correct.

24 Q Do any of these statements under oath by Sergeant Romero

25 in this declaration affect your opinion or evaluation of this

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1 yard incident or either version of the yard-incident report?

2 A Of the ones that you just read to me, no. But you skipped

3 over 17.

4 Q I didn't mean to. If you find that significant (As read):

5 "Lira was more like asking questions of the other inmates."

6

Do you find that significant?

7 A Significant in that it correlates back to the original

8 report, where he says that, along with the validated Northern

9 Structure gang member, was questioning and talking to these

10 other inmates.

11 Q Take a look at the next page, on Paragraph 28. Officer

12 Romero is here addressing this March 1998 letter.

13

I'll quote again (As read): "I didn't think Lira was a

14 gangbanger. That's why I agreed to write my March 8, 1998,

15 letter."

16 A I see that.

17 Q Does that affect your opinion or evaluation at all of this

18 yard incident, or these yard-incident reports, either version?

19 A No.

20 Q None at all?

21 A No.

22 Q All right. Let's talk about the drawing. And just to

23 remind you, it's Exhibit 9, Tab 9.

24

THE WITNESS: Okay.

25

THE COURT: We have about five minutes to go before

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1 we need to take a break, Mr. White.

2

MR. WHITE: All right. Thank you, Your Honor.

3

THE WITNESS: I'm prepared.

4 BY MR. WHITE:

5 Q And the related chrono is Exhibit 8.

6 A Okay.

7 Q You noted earlier in your testimony that, according to the

8 chrono, Mr. Lira -- I'll quote again -- "freely admitted that

9 he created this drawing."

10

Do you see that?

11 A Yes, I do.

12 Q Did you regard that as significant when you first reviewed

13 this chrono as part of your evaluation?

14 A It was important. I wouldn't characterize it necessarily

15 as any more important than his possession of the drawing.

16 Q Well, it's noted as a point of special significance here

17 in the chrono, isn't it?

18 A It's documented.

19 Q Now, take a look at Exhibit 113.

20

(Request complied with by the Witness)

21 Q 113.

22 A I'm prepared. Sorry.

23 Q Do you have that before you?

24 A Yes.

25 Q I couldn't tell from here.

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1

Have you ever seen this before?

2 A Yes, I have.

3 Q And this is Mr. Leyba's declaration.

4 A Yes.

5 Q In which he relates under oath that he made the drawing.

6 A Correct.

7 Q Mr. Leyba testified as a witness at this trial.

8

Are you aware of that?

9 A No, I'm not.

10 Q Has anyone informed you as to his trial testimony here?

11 A No, they have not.

12 Q From this same witness stand?

13 A No, they have not.

14 Q Mr. Leyba, also in this declaration, I'll read from

15 Paragraph 5 (As read): "I did not intend to put any

16 prison-gang symbols in the drawing and don't believe I did" --

17 "and don't believe I did so."

18

Do you see that?

19 A Correct.

20 Q Is that significant at all to your evaluation?

21 A No.

22 Q Do you credit that statement?

23 A Do I believe it's true?

24 Q All right.

25 A No.

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1 Q In Paragraph 7 of the declaration, it's on the second

2 page, I'll quote again, "The drawing was made before I first

3 knew Ernesto Lira."

4

Do you see that?

5 A Yes.

6 Q If that were so, Mr. Marquez, would you agree with me that

7 the reference you shaded earlier this morning in your

8 testimony, over to the left-hand side of this blown-up

9 demonstrative version of the drawing, which you told us was

10 only some word fragment there, but you told us that reads

11 "Chino," is that right?

12 A Well, h-i-n, which I believe to be the middle three

13 letters of the alias "Chino," correct.

14 Q And on that basis, you ascribed or imputed the drawing to

15 Mr. Lira.

16 A Along with what's documented in the report.

17 Q The chrono we just looked at.

18 A Chrono, correct.

19 Q Right. The one that talks about how Mr. Lira freely

20 admitted drawing the thing?

21 A Correct.

22 Q Well, would you agree with me that if Mr. Leyba made the

23 drawing, and if Mr. Leyba made the drawing before he ever met

24 Mr. Lira, whether that headband says "Chino" or not, couldn't

25 refer to Mr. Lira, could it?

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1 A That's possible, yes.

2 Q Well, does that affect your evaluation of this drawing,

3 this further statement under oath of Mr. Leyba here in this

4 declaration?

5 A No.

6 Q And is that because you don't believe what he says here?

7 A I know that Mr. Leyba was a validated Northern Structure

8 gang member. I know that the Huelga bird and the Northern Star

9 are symbols of the Northern Structure.

10

And based -- you know, unless there's some evidence that

11 would indicate that the document, the chrono, referencing the

12 picture, unless there's some evidence to indicate that the

13 signer or the author of that document perjured themselves, I

14 would have to take it at face value, that it's correct and it's

15 true that Mr. Lira freely admitted that he drew it, and it has

16 gang symbols, as I've testified.

17 Q Well, if you would have received information in the course

18 of processing this validation yourself, if you had had that

19 role, if you had received information possibly from Mr. Lira,

20 himself, maybe in the course of an informal hearing before the

21 IGI that he never received, that he didn't make that drawing,

22 that it was made by Mr. Leyba, himself, a different inmate,

23 would you have investigated that?

24 A No. And the reason being is, if it was taken out of the

25 personal property of Mr. Lira, it was in his possession, it

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court
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1 belonged to him.

2

For me, as a gang investigator, him possessing it, him

3 having that drawing, having those symbols on it, who drew it,

4 at that point, would become -- I mean, not -- it would be a

5 moot point for me.

6 Q Certainly not worth bothering to investigate?

7 A No. And, again, because of the possession and because of

8 the symbols.

9

MR. WHITE: Perhaps this is a convenient place to

10 stop, Your Honor.

11

THE COURT: All right, thank you.

12

I'm sorry to say, but we will have to come back after

13 lunch, sir.

14

THE WITNESS: All right.

15

THE COURT: How much more do you think you have of

16 this witness?

17

MR. WHITE: Not a lot. I'm hoping 20 minutes at

18 most.

19

THE COURT: How about you, Mr. Feudale?

20

MR. FEUDALE: Maybe ten on redirect.

21

THE COURT: So if we come back at 1:00, do you think

22 that is safe, we will be finished?

23

MR. WHITE: By the end of today, yes.

24

MR. FEUDALE: Definitely.

25

THE COURT: All right, then, come back at 1:00.

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1

THE WITNESS: Thank you, Your Honor.

2

(Recess taken from 12:12 to 1:15 p.m.)

3

THE COURT: You may be seated. And, you may proceed,

4 Mr. White.

5

And you're still under oath from this morning, sir.

6

THE WITNESS: Yes, Your Honor.

7

MR. WHITE: Thank you, Your Honor.

8 BY MR. WHITE

9 Q And I believe, Mr. Marquez, just before our lunch break,

10 we were talking about this drawing with the hidden gang symbols

11 (Indicating), and its authorship.

12

We had talked about Mr. Leyba, do you recall that?

13 A Correct.

14 Q You mentioned at one point in your testimony, your belief

15 that Mr. Leyba was validated at some point, himself, as a

16 prison gang member, true?

17 A That's correct.

18 Q Back in 1992, at the Sierra Conservation Center, Mr. Leyba

19 hadn't been validated as a prison gang member or affiliate,

20 true?

21 A That's correct.

22 Q Let's talk about another drawing that I don't believe was

23 discussed in your direct examination, but it's discussed in

24 your Rule 26 report.

25

Do you have a copy of the report with you?

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1 A No, I don't.

2 Q Do you recall discussing on Page 4 of your report, a

3 second drawing that involves a woman wearing a sombrero hat?

4 A Yes, I do.

5 Q Turn to Exhibit 120, if you would, Plaintiff's 120. And

6 before you look through that binder before you, I need to tell

7 you it's a different binder. It's off to your right.

8

And it should say "Plaintiff's Trial Exhibits, Volume 2."

9 I think you'll find 120 there.

10

(Request complied with by the Witness)

11 Q If you turn to the second page of this exhibit, is that

12 the drawing?

13 A Yes, sir.

14 Q And this was part of the materials you were sent by

15 defense counsel to evaluate?

16 A Correct. And I don't remember if they sent it to me or

17 this was something that was maintained in the file in Rancho

18 Cordova, but I reviewed this document. This drawing.

19 Q All right. And from your Rule 26 report, we understand

20 correctly that you determined that this -- this drawing

21 represents evidence that Mr. Lira was affiliated with the

22 Northern Structure?

23 A Yes, if this is in fact attributed to him.

24 Q And not just affiliated as an associate of that gang, but

25 as a member of that gang. Wasn't that your further opinion?

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1 A Correct. 2 Q Take a look, if you turn back one page in this same 3 Exhibit, 120, this is a page with a single handwritten notation 4 at the top? 5 A Correct. 6 Q Have you ever seen that before? 7 A No, I have not. 8 Q It wasn't included in the materials you were sent by 9 defense counsel? 10 A No. 11 Q It's a little hard to read, but I'll quote for the Record 12 (As read), "This is a copy of a drawing that was confiscated 13 from" -- I think that's "Morales, Juan property during a cell 14 search" -- I think that's "12-6-91." Do you see that? 15 A Correct. 16 Q And then it seems to be signed by -- it's a familiar 17 signature to us at this point, that's Sergeant Romero? 18 A Correct. 19 Q Do you know whether or not this notation on this page has 20 any reference to this sombrero hat lady drawing? 21 A No. 22 Q Well, assume with me for the moment, Mr. Marquez, that 23 this is a notation from Sergeant Romero referencing the 24 drawing. All right? 25 A Okay.
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1 Q As a drawing that was confiscated not from Mr. Lira, but

2 from a different inmate, this Inmate Morales. All right?

3 A Okay.

4 Q Would that affect your opinion or evaluation of the

5 drawing, itself, as evidence of Mr. Lira's gang affiliation?

6 A In totality, no.

7 Q Why not?

8

THE COURT: Did you say that you thought this

9 drawing, Exhibit 120, was significant in demonstrating

10 Mr. Lira's gang affiliation?

11

THE WITNESS: I -- I believe it is, in the context of

12 the totality of the evidence. Morales is validated as a

13 Northern Structure member. If in fact we attribute this

14 drawing to Mr. Morales, it's further evidence that he is in

15 fact a member of the Northern Structure.

16

The totality of the evidence going back to the Romero

17 report is that you have Mr. Lira associating with Mr. Morales,

18 in this confrontation on the jailyard.

19

THE COURT: This picture shows that Mr. Morales is a

20 gang member.

21

THE WITNESS: Correct.

22

THE COURT: And Mr. Lira was with him on the

23 courtyard. So that's the logic.

24

THE WITNESS: That's correct, Your Honor.

25 BY MR. WHITE

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1 Q But it wouldn't be any evidence of Mr. Lira's gang

2 affiliation as something that was ever found in his possession.

3 True?

4 A This drawing, correct.

5 Q So this wouldn't be evidence, by itself, that Mr. Lira was

6 affiliated with any prison gang, true?

7 A By itself, correct.

8 Q Now, can we --

9

THE COURT: Is that -- is the -- is the report in

10 evidence? The Rule 26 report?

11

MR. WHITE: I haven't put it into evidence.

12

MR. FEUDALE: We can, Your Honor. We --

13

THE COURT: What did he say in that report about this

14 drawing?

15

MR. WHITE: He -- he said -- I can quote for the

16 Record, he says (As read), "The drawing identified" -- this is

17 from Page 4 -- "The drawing identified by me as a woman wearing

18 a sombrero contains a Huelga bird, and more importantly, the

19 name of the gang 'Nuestra Raza.' My professional opinion,

20 based upon my training, experience and numerous personal

21 interviews with active, inactive and dropout gang members is

22 that only members of the gang are allowed to possess the

23 symbols/tattoos of the gang without suffering repercussion."

24

He goes on to make further comments at the top of

25 Page 5, based on the aforementioned documents, "My professional

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1 opinion is that Lira should have been identified and validated

2 as a member of the gang rather than an associate, based on the

3 totality of the information contained in the documents and my

4 personal training and experience."

5 BY MR. WHITE

6 Q Mr. Marquez, could we turn back to Exhibit 51. This

7 April, 1998 debriefing report.

8

(Request complied with by the Witness)

9 A Okay.

10 Q And you've told us, you've read this report. You're

11 familiar with its contents.

12 A That's correct.

13 Q If you look at the top of Page 3 of this report, --

14

MR. FEUDALE: I apologize for interrupting, Counsel.

15 What exhibit are you on?

16

MR. WHITE: 51.

17

MR. FEUDALE: Thank you.

18 BY MR. WHITE

19 Q At the top of Page 3 at the beginning of that first

20 paragraph, doesn't this debriefing inmate relate that he,

21 himself, was originally wrongly validated as a prison gang

22 member?

23

(Witness examines document)

24 A Can I -- can I look at the previous page just so I can

25 understand the context? Because it --

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court
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1 Q Oh, sure.

2

(Witness examines document)

3 A Okay. What was the question, again?

4 Q My question, sir, was, doesn't this debriefing inmate

5 relate at the top of Page 3 of this report that he, himself,

6 originally was wrongly validated as a Northern Structure

7 member?

8 A No, unless -- unless I'm totally misreading this, it

9 almost sounds like the inmate went to the Classification

10 Committee, and the Classification Committee -- it almost, the

11 way I'm reading it, is used a ruse to try to elicit some kind

12 of response from him about his gang membership. Unless I'm

13 totally misconstruing the way this is reading.

14

Because it says when he went to the Classification

15 Committee, he was told he was being validated as a gang member,

16 which at that time was not true.

17

But it doesn't say that the informant said that "I'm not a

18 gang member, that's not true." It's not real clear, the way

19 that this reads, whether the -- whether the inmate/informant is

20 saying "That's not true," or was it a ruse by the committee to

21 try to elicit some type of response from him. Unless I'm

22 misreading this.

23 Q You think this is unclear in its meaning?

24 A I feel it is.

25 Q All right.

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1 A Unless I'm just missing something here.

2 Q All right. Well, let's go to Page 5, then. We can pass

3 that point.

4

This is the -- this is the account here, in the second

5 paragraph, about this gang-directed assault by Mr. Lira on a

6 new cellmate?

7 A Correct.

8 Q And that apparently was something he was directed to do

9 because he had refused to --

10

MR. FEUDALE: Your Honor, before we go further into

11 here, can I have a sidebar, please?

12

THE COURT: Can you what?

13

MR. FEUDALE: Can we have a sidebar on this report?

14

THE COURT: Okay.

15

MR. FEUDALE: Thank you.

16

(Sidebar discussion and further proceedings held on

17

the Record and sealed)

18

(The following proceedings were then held on the

19

Record, in open court:)

20 BY MR. WHITE

21 Q Mr. Marquez, you -- you were testifying earlier today

22 about -- about gang insignia.

23 A Correct.

24 Q And tattoos.

25 A Correct.

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1 Q Symbols of the gang. And, we have now, I think it's

2 Defense Exhibit 344, these photos (Indicating). Is that right?

3 Of all these gang tattoos?

4 A Correct.

5 Q And they include a number of examples of a tattooed Huelga

6 bird.

7 A That's correct.

8 Q On these different inmates.

9 A And parolees, correct.

10 Q Often with the number or the Roman numeral XIV on them?

11 A Correct.

12 Q Does Mr. Lira have a Huelga bird tattoo with the number 14

13 on it?

14 A I do not know if he has any tattoos.

15 Q Do you know if he has a tattoo of any sort?

16 A I have no idea.

17 Q Does he have any Northern Star tattoo?

18 A I'm not aware of him having any tattoos. I've never

19 conducted an investigation as to what tattoos he may or may not

20 have.

21 Q Is the number 14, with or without a Huelga bird, tattooed

22 anywhere on Mr. Lira?

23 A I have no idea.

24 Q Well, take a look at Exhibit -- it's Defense Exhibit 298.

25

(Witness examines document)

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1 Q Do you recognize this?

2 A Correct.

3 Q It's, it's a form that's filled out, it is entitled "Gang

4 Validation Worksheet"?

5 A That's correct.

6 Q And, you are familiar with this, aren't you?

7 A Yes, I am.

8 Q It was part of the materials you were sent by defense

9 counsel that you reviewed and evaluated here. Isn't it?

10 A That's correct.

11 Q And, do you see on this form, it's on the first page, a

12 little below the middle of the page, it's part of the

13 preprinted form. It says, I'll quote, "Tattoos, scars and

14 marks." Do you see that?

15 A Yes, I do.

16 Q And somebody's checked the box that says, "None."

17 A That's correct.

18 Q You credit that, don't you?

19 A I credit it. Do I -- telling the truth --

20 Q Well, you were telling me just a moment ago that you don't

21 know if Mr. Lira has any tattoos of any sort on his body.

22 Don't you credit this record, documentation from CDCR files,

23 reflecting that he has none at all?

24

MR. FEUDALE: Your Honor, I would object to this line

25 of questioning. It mischaracterizes the evidence. This report

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1 or validation worksheet, as you can see, was submitted in 1993.

2 We are now in 2009. Mr. Lira could have acquired some tattoos

3 between now and then.

4

I don't think it is a fair lining of questioning for

5 the witness.

6

THE COURT: I think it is a fair line of questioning,

7 but you may need to reframe your question, because it's written

8 in '93.

9 BY MR. WHITE

10 Q Are we at least agreed at this point, Mr. Marquez, that as

11 of 1993, the year that Mr. Lira was validated by CDCR as

12 gang-affiliated, he had no tattoos of any sort on his body.

13 True?

14 A As of May 18, 1993, that's correct.

15 Q Including any gang tattoos?

16 A That's correct.

17 Q Do you regard that as significant?

18 A Yes and no.

19 Q Why don't you give me the "yes" part first.

20 A Yes, because I know that one of the things that gang

21 members do do is put tattoos on their bodies.

22 Q It's a common thing, isn't it?

23 A Common.

24 Q And there's nothing particularly hidden about the gang

25 symbols when they do so.

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1 A Correct.

2 Q All right. Do you want to give us the "no" part now?

3 A The "no" part. The gangs, per their own writings, which I

4 have read on numerous occasions and have talked to numerous

5 debriefing inmates, the gangs, themselves, have issued an edict

6 to their members not to tattoo themselves with gang-related

7 tattoos because we going to use them in the identification and

8 validation process.

9 Q Apparently none of these gang members got that bulletin

10 (Indicating).

11 A Correct.

12 Q When did that issue?

13

When did that issue?

14 A I believe that that was issued around 1998, is when it

15 first came out.

16 Q All right. Well, we came to an understanding about this

17 tattoo question, at least up through May of 1993. Do you have

18 any reason to believe that Mr. Lira has gotten any tattoos on

19 his body, including any gang tattoos, since then?

20 A I have no idea.

21 Q All right. By the way, Mr. Lira's name turned up on one

22 or more no-good lists, did it not, while he was at Pelican Bay

23 SHU?

24 A I've heard that. I haven't actually seen the documents

25 that list him as being in bad standing with the gang.

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court
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1 Q Well, let's take a look at a couple of them. Exhibit 77.

2 A Is that the binder that you --

3 Q I'm sorry. I hid it on you. It's the one behind you.

4 A Okay. I'm at 77.

5 Q Have you ever seen that before?

6 A This 1030? No.

7 Q Well, take a look at it.

8

(Request complied with by the Witness)

9 Q It's a disclosure to Mr. Lira, is it not, it's dated

10 February 21, 2003, advising him that his name has turned up on

11 a prison gang no-good list.

12 A That's correct.

13 Q That list is Exhibit 110, isn't it?

14

(Witness examines document)

15

MR. FEUDALE: Your Honor, I would have to object.

16 Well, hold on one second.

17

Withdraw my objection.

18 BY MR. WHITE

19 Q Correct, Mr. Marquez?

20 A Correct.

21 Q Take a look at the next exhibit in order, 111.

22

(Request complied with by the Witness)

23 Q Another no-good list, isn't it? With Mr. Lira's name on

24 it? This one dating from January, 2004?

25 A Correct.

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1 Q Those no-good lists signify that Mr. Lira was at that time

2 targeted for retaliatory attack or violence by the gang. Isn't

3 that true?

4 A Some time around, at -- at least, 2002.

5 Q All right. And, and you were telling us earlier that at

6 least the Northern Structure prison gang controls not just the

7 prison gang structure within the system, but extends its

8 influence and authority out on to the streets as well?

9 A That's correct.

10 Q Including efforts -- retaliatory or reprisal efforts

11 against inmates deemed no good by the gang?

12 A That's correct.

13 Q All right. One other question. Do you know whether

14 Mr. Lira was ever reviewed for inactive gang status?

15 A I believe he was.

16 Q In 2000?

17 A That's correct.

18 Q Would he have been checked for prison gang tattoos at that

19 time?

20 A He should have been. That's part of the process.

21 Q And any prison gang tattoos found, you would presume,

22 would have been noted in the inactive gang review report?

23 A That's true.

24

MR. WHITE: Nothing further.

25

THE COURT: Mr. Feudale?

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1

MR. FEUDALE: Yes, Your Honor.

2

REDIRECT EXAMINATION

3 BY MR. FEUDALE

4 Q Good afternoon, Agent Marquez.

5 A Good afternoon.

6 Q Earlier in your cross-examination with Mr. White, there

7 were some discussion regarding a confidential disclosure form.

8 I want to turn your attention to Exhibit 208 in Defendant's

9 blue binder.

10

Actually, hold on. You got Exhibit 208?

11 A Yes.

12 Q What is that exhibit?

13 A It's a confidential information disclosure form, CDC

14 Form 1030.

15 Q What is the date of that exhibit?

16 A 9-19-96.

17 Q And, let me turn your attention to Exhibit 36 in the other

18 binder.

19 A That was 36?

20 Q Yes.

21

(Request complied with by the Witness)

22 A Okay.

23 Q Now, I want to direct your attention to the sentence

24 beginning with the word "Based," it's in the middle of the

25 paragraph.

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1

"based on the" --

2 A Okay.

3 Q I'll read it for the Record. Says (As read), "Based on

4 the CDC 128-B-2, ICC elects to impose an indeterminate SHU term

5 for membership in the Northern Structure prison gang, and

6 requests CSR approval of the indeterminate SHU term."

7

What is the date of this exhibit?

8 A 9-19-96.

9 Q And, correct me if I'm wrong, is that the same date that

10 this confidential disclosure form was provided to Mr. Lira?

11 A Yes, it is.

12 Q Now, earlier, Mr. White was speaking to you about the use

13 of what's been colorfully termed laundry lists. Lists of

14 inmates that are known to a debriefer as active members or

15 associates of a prison gang.

16

And, you were about to provide an analogy. I'm wondering

17 if you would like to do that at this time.

18 A Well, in the context of the way the question was presented

19 to me, is how do these inmates know who these people are. And

20 there's a number of ways.

21

One, from good-news lists, bad-news lists, no-good lists.

22 One is through their observations, gang members know who these

23 other gang members are.

24

And the analogy is, is I go to church every Sunday. And

25 when I go to church, I see people in there that I may not know

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1 the specifics of what they do while they're at home, but I see

2 them there Sunday after Sunday after Sunday, I see them

3 worshiping, I see them reading their Bible. And so it's safe

4 for me to assume that we have some commonality, because Sunday

5 after Sunday, they're there with me. But I may not know the

6 specifics of what they do away from there.

7

And I guess the analogy would then be to the gang members,

8 is they see these people, they know who they are, but they may

9 not know the specifics of what type of criminal activity that

10 they're engaged in, although there is some level of

11 commonality, whether it's the tattoos, whether it's

12 association, whether it's -- you know, name recognition by

13 going through these lists. However that may be.

14 Q Agent Marquez, when you were speaking to Mr. White, you

15 said that in addition to these -- the fact that inmates

16 memorize the extensive lists if they are part of the Northern

17 Structure, you also found in part this information to be

18 reliable as well for another reason, which wasn't covered.

19

Do you recall what I'm speaking about?

20 A No. Could you --

21 Q Sure. Is there another reason that you haven't discussed

22 that you find this particular debriefing informant -- and this

23 would be in Exhibit No. 4 -- to be reliable with respect to the

24 information he provided concerning Mr. Lira?

25 A Correct. That's correct.

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1 Q Yes.

2 A And the reason that -- in reading the list, reading the

3 debrief, this individual happened to be at DVI at the same time

4 Mr. Lira was. And so there's --

5 Q How do you know that?

6 A Well, one, the report, itself, says that it was documented

7 and done by the staff there at DVI. Two, I referenced the

8 housing records of the individual that did the debriefing.

9

And, also, I'm aware of housing records that place

10 Mr. Lira at DVI during the same time frame.

11 Q And I would like you to turn to Exhibit 201 in Defendant's

12 binder.

13

(Request complied with by the Witness)

14 A Okay.

15 Q See at the bottom of the first page there, is that what

16 you are referring to, concerning the records that Mr. Lira was

17 at DVI at the same time as this informant?

18 A Correct.

19 Q Can you show the Court where exactly it indicates Mr. Lira

20 was at DVI at that time period?

21 A Well, according to the document -- we're looking at the

22 chronological history?

23 Q Yes, sir.

24 A The very first entry says "6-18-92, received, DVI." He's

25 still there on 7-2 of '92, during which time they did an audit,

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1 and he's there up until August -- could be the 12th, because he

2 could have transferred and been received on the 13th at Sierra,

3 or he could have been there all the way up to the 13th and the

4 transport happened the same day.

5

But essentially, he's there from June until August of

6 1992.

7 Q And what is the date of the debriefing report we're

8 referring to, Exhibit 20 -- Exhibit 4?

9 A September of '92.

10 Q I want to turn your attention to Exhibit No. 1 in

11 Plaintiff's binder. The handwritten report from Officer

12 Romero, do you see that?

13 A Correct.

14 Q Now, Mr. White was showing you what he believed to be some

15 discrepancies between that report and the Exhibit 6 concerning

16 Mr. Lira's conduct. Do you remember that?

17 A Correct.

18 Q Now, I want you to focus on the word -- and this is in the

19 body of the report, first of all, in the list of names, do you

20 see Mr. Lira named on there?

21 A Yes, I do.

22 Q Okay. Now, referring to the body of the report --

23

MR. WHITE: Which exhibit?

24

MR. FEUDALE: This is Exhibit 1.

25 BY MR. FEUDALE

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1 Q You see the sentence that begins, three lines down, it

2 says "The larger group of Norteños gathered on the east side of

3 the yard," do you see that?

4 A Correct.

5 Q When reading that report yourself, what do you feel -- who

6 do you feel Officer Romero is referring to?

7

MR. WHITE: Well, Your Honor, that -- and I know he's

8 an expert, but -- but this request for a Vulcan mind meld

9 between the witness and Officer Romero, I just think that's

10 beyond the pale.

11

That's just speculative, to ask him to relate to us

12 what Officer Romero thought or felt or was wanting to do in

13 recording this. I just think that's beyond the pale.

14

THE COURT: Sustained. We've got this, we've got the

15 typed-up one, we had Romero testify. I don't see any reason to

16 speculate.

17

MR. FEUDALE: Okay.

18 BY MR. FEUDALE

19 Q Let me turn your attention, Agent Marquez, to Plaintiff's

20 Exhibit 108. And I would like you to turn to the last page of

21 that exhibit.

22 A Which would be Page No. 3?

23 Q Yes. Says RDEC-3.

24 A Okay.

25 Q You see Paragraph 27 there?

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1 A Yes, I do.

2 Q Where it says "Except for the April 24, 1992 incident, we

3 had no evidence of Lira acting together with members or

4 associates of a prison gang."

5 A That's correct.

6 Q And, you see Paragraph 29? After it talks about where the

7 Norteños lived or exercise, it says, quote (As read), "The only

8 acts by Lira that would raise an eyebrow about his possible

9 association was the yard incident" -- "was the incident in the

10 jailyard on April 24th, 1992."

11 A That's correct.

12 Q Now, after reading those two paragraphs, does that change

13 or support your opinion in any way concerning whether or not

14 this incident report, Exhibit 6, is indicative of gang

15 activity?

16 A It supports my contention that it is gang-related

17 activity.

18 Q And why does it support your contention?

19 A In Line 27, per Romero's own deposition, he said, "Outside

20 of that incident," meaning on that incident, there was an

21 indication that he was acting in concert with members or

22 associates of the prison gang.

23

Which is documented in his report, that he acted in

24 concert with -- I believe his name was Juan Morales, a

25 validated Northern Structure member.

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1 Q Now, Mr. White had you turn your attention to Paragraph 28

2 where Romero stated, quote, "I didn't think Lira was a

3 gangbanger." Do you see that?

4 A Correct.

5 Q And you said that didn't affect your opinion. Do you

6 remember saying that?

7 A Right.

8 Q Can you explain why?

9 A Well, one, I think if you -- you could read it and infer

10 he didn't think he was, but now he understands that he is,

11 based on the incident.

12

Or you can look at it and go -- and I've known this to

13 happen, I've had officers that have worked for me that have

14 worked around inmates and not known that they were the level or

15 to the extent that they were involved in the gang activity

16 until after we completed our investigation.

17

We've had officers actually come to me and go, "Wow, the

18 guy's a porter, he does good, he doesn't cause any problems,

19 he's real quiet." And yet, the gang unit is actually removing

20 him from the unit because he's a gang member.

21

So, that -- reading that does not dissuade my opinion that

22 the totality of the evidence indicates to me that Lira is a

23 Northern Structure gang member.

24 Q Now, let me turn your attention -- Mr. White discussed

25 this with you earlier, and I did as well. And this would be

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1 Exhibit 49.

2

(Request complied with by the Witness)

3 A That would be the Merced County clarification document?

4 Q Right. Let's assume -- and I know you mentioned, you

5 know, you weren't sure exactly which Exhibit 1 or Exhibit 6

6 that particular document referred to.

7

Let's assume for the sake of argument that it does refer

8 to Exhibit 6, the typed version of Romero's report.

9

Does that in any way change or alter your opinion

10 concerning the significance of Exhibit 6?

11 A No.

12 Q And why is that?

13 A Just because Merced County doesn't have any record of him

14 being validated as a gang member doesn't negate the activity

15 that happened on April 24, 1992. He acted in concert with a

16 validated gang member.

17

So, whether Merced County or the Department of Corrections

18 or anybody else had any validation paperwork on Mr. Lira, I

19 think the report speaks for itself, that he acted in concert

20 with a validated gang member.

21 Q Let me turn your attention to Exhibit 120, which was the

22 drawing of the lady with the sombrero.

23

(Witness examines document)

24 A Okay.

25 Q Now let's say for the sake of argument that this first

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1 page really does refer to the drawing, that this particular

2 drawing was not Lira's; was an inmate by the name of Juan

3 Morales.

4

Does that in any way affect your opinion concerning

5 whether or not Mr. Lira should have been validated as a member

6 rather than an associate of the prison gang?

7 A No.

8 Q Why is that?

9 A As I believe I previously testified, it just reaffirms in

10 my mind that Juan Morales wasn't appropriately identified. He

11 wouldn't -- if in fact this was in the possession of Morales,

12 it's clearly gang-related, clearly has the name that the gang

13 refers to as itself. It has the gang symbol, the Huelga bird.

14

To me, it reaffirms Morales's validation, who he is, what

15 he's about. And then if you take that in context with the

16 report, Lira -- the original Merced County report, the -- you

17 have Lira acting in concert with this individual.

18 Q Now, does that affect your opinion concerning Exhibit 9,

19 and its symbols associated there?

20 A Exhibit 9 would be the drawing here (Indicating)?

21 Q The drawing there, which is Defendant's Demonstrative C.

22 A No. It doesn't affect my opinion at all.

23 Q Why is that?

24 A Again, as I previously testified, it is attributed to

25 Mr. Lira, that this was found in his possession. It clearly

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1 has Northern Structure gang symbols on it.

2

And according to the report, Lira identifies to the

3 officer that it's his drawing. And he wanted -- he wanted to

4 know when he was getting it back.

5 Q Now, let me have you look at Exhibit 45. You spoke to

6 Mr. White about that. The rules violation report.

7

MR. WHITE: Which exhibit? 45?

8

THE WITNESS: Okay.

9 BY MR. FEUDALE

10 Q If you can turn to the last page, which is the hearing

11 officer's findings.

12

(Request complied with by the Witness)

13 A Okay.

14 Q Now, a couple of the findings the hearing officer found in

15 support of his opinion that Mr. Lira was not guilty of this

16 charge was that there was no physical contact by either inmate,

17 and two, that there was no argument or sign of hostility

18 between Mr. Lira and Mr. Ramirez.

19

My question to you is, in your duties as a gang

20 investigator, is it plausible, based on your experience, that a

21 gang assault could have occurred, even if a 115

22 memorializing -- or even if there was no physical contact, or

23 even if there was no sign of hostility (Indicating quotation

24 marks) between inmates?

25 A Yes. And, I would like to point out that in the findings,

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1 No. 1, identified as Finding No. 1, the hearing officer states

2 that Officer Rodriguez stated he observed Lira take a swing at

3 him. That wasn't diminished or somehow excused away.

4

I think the hearing officer concurs that that did happen,

5 based on what was written in the report. However, it has been

6 my experience that a couple of things are at play here, when we

7 are dealing with these gang members.

8

And, if we go back to the 1998 debrief, information is

9 provided that Mr. Lira knows this individual that he's going to

10 cell with. And it -- he's given an inmate-manufactured weapon

11 to utilize on this individual. And Lira doesn't want to do

12 that --

13 Q Hold on, Mr. Marquez. Before we get into any particular

14 details, let me caution you not -- not to get any further into

15 the report.

16

If we need to close to courtroom, we can do so. Do you

17 feel that's necessary at this time?

18 A I believe that could be true.

19

MR. FEUDALE: And, Your Honor, I actually have some

20 other questions I would like to ask Agent Marquez concerning

21 the details of Mr. Leyba's drawing, we may need to talk about.

22

THE COURT: It seems to me we have plowed this ground

23 before. But, if you think it's necessary, why, we'll go ahead

24 and do that. So, do you want to do that now?

25

MR. FEUDALE: Yes, Your Honor.

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1

THE COURT: And, how much more do you think you have?

2

MR. FEUDALE: Five more minutes, and that's it.

3 We'll be done.

4

THE COURT: Sorry, we've got to lock up again.

5

(The courtroom is closed, and proceedings are held on

6

the Record and sealed)

7

(The following proceedings were then held on the

8

Record, in open court:)

9

RECROSS EXAMINATION

10 BY MR. WHITE

11 Q I wanted to ask you about one thing, Mister -- excuse me.

12 Exhibit 201.

13

Let's start there, since that's the binder before you.

14 A Correct.

15 Q And this is the confinement chronology, if you will, for

16 Mr. Lira?

17 A That's correct.

18 Q And you noted for us earlier that the first several

19 entries of this show that Mr. Lira was at DVI, as you read

20 this, from June until August of 1992?

21 A That's correct.

22 Q And, he was in intake at DVI, was he not, returning to the

23 system? That's why in August of 1992, the third entry, he was

24 processed out to the Sierra Conservation Center? True?

25 A Correct.

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1 Q Now, then, the debriefing informant that is the subject of

2 Exhibit 4, the September 25, 1992 debriefing report, that

3 informant inmate would have been in Ad Seg at DVI, isn't that

4 right?

5 A That's correct.

6 Q Because he was a validated Northern Structure member.

7 A That's correct.

8 Q He would have been in solitary confinement there?

9 A That's correct.

10 Q He wouldn't have had any direct contact with anybody on

11 the mainline, just coming through the facility as a reception

12 center, would he?

13 A I'm not familiar with the physical plant design of DVI.

14 There are times when we are taking people out of Administrative

15 Segregation, taking them to Medical or to Dental or different

16 parts of the prison.

17

So, for me to say that absolutely not, no, I can't say

18 that. There -- there is a possibility. But, is there anything

19 in the written record to show that? No.

20 Q Well, when people get taken out of Ad Seg to places like

21 the infirmary, they're taken in shackles, are they not?

22 A That's correct.

23 Q And in the immediate presence of guards?

24 A That's correct.

25 Q Thank you.

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1

MR. WHITE: Nothing further, Your Honor.

2

THE COURT: Thank you.

3

Anything further, Mr. Feudale?

4

MR. FEUDALE: Nothing further, Your Honor.

5

THE COURT: Thank you very much, sir. You are

6 excused.

7

THE WITNESS: Thank you, Your Honor.

8

(Witness excused)

9

THE COURT: Does the Defendant rest?

10

MR. FEUDALE: Defendant rests.

11

Your Honor, at this time, I would like to -- there's

12 a couple of housekeeping things. But before I go there, I

13 would like to renew our Rule 52(c) motion, on the grounds that,

14 now that all of the evidence is produced, Plaintiff has not

15 sufficiently shown that there has been some evidence in this

16 case -- or there has not been some evidence in this case to

17 validate Mr. Lira as a prison gang associate, and support his

18 retention in segregated housing, and that he was not afforded

19 procedural protections, namely notice and an opportunity to

20 present his views concerning his gang validation and his

21 placement in segregated housing.

22

THE COURT: All right, thank you. That will be

23 denied at this time.

24

Now, what about -- where do we go from here?

25

MR. WHITE: We go to at least one other housekeeping

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1 matter.

2

THE COURT: Okay.

3

MR. WHITE: Which is what I believe may be our

4 still-pending request for judicial notice.

5

THE COURT: Of the Huelga bird?

6

MR. WHITE: Yes.

7

THE COURT: I no longer have it before me. I think

8 it went both to the United Farm Workers and the Aztecs, did it

9 not?

10

MR. WHITE: The Aztec eagle and the Huelga bird, Your

11 Honor. Here's a copy.

12

THE COURT: There's been evidence in the Record in

13 abundance about the United Farm Workers. I haven't heard too

14 much about the Aztecs yet.

15

MR. WHITE: It's in the judicial notice request

16 (Indicating).

17

MR. FEUDALE: Your Honor, if I may be heard?

18

THE COURT: Sure.

19

MR. FEUDALE: I e-filed, and I think the chambers

20 copy was delivered, our opposition to that motion. And I don't

21 have it on me now, but I certainly can provide the Court

22 another copy, if you would like.

23

In fact, Mr. White is providing me a copy, so I do

24 have one if the Court would like to look at it.

25

MR. WHITE: Do you want your declaration, too

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1 (Indicating)?

2

MR. FEUDALE: But essentially, my argument is that,

3 you know, Plaintiff's Counsel is going beyond -- judicial

4 notice is limited to matters which are, you know, one, to

5 things generally known in the district, such as the location of

6 a courthouse.

7

And two, matters which are capable of ready and

8 accurate determination by sources who cannot be questioned.

9 That's explicit in Rule 201.

10

Here, we don't have that. Mr. White's engaging in

11 argument. He's essentially not -- he's not saying, you know,

12 the Huelga bird is a UFW symbol, United Farm Workers Movement

13 symbol. He's saying it's a cultural icon, it's taught in

14 schools, it's a symbol of Mexican-American heritage. I mean,

15 this goes far and beyond something which is the scope of

16 judicial notice.

17

And the sources he cites to are not just, you know,

18 encyclopedias or something which is capable of writing an

19 accurate determination. He cites to websites.

20

And as a Judge in the Central District pointed out,

21 websites are capable of dispute. They're not capable of

22 rendering an accurate determination. You don't know who

23 designed the Uniform Resources Locator, who created the

24 website. So, there's some ambiguity there as to whether or not

25 they are authentic exhibits, and whether or not they should be

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1 judicially noticed.

2

So that is essentially part and parcel of our

3 argument as to why this particular matter should not be

4 judicially noticed here.

5

MR. WHITE: If Your Honor needs to hear further from

6 me, the websites that we accessed began with the United Farm

7 Workers' own official website. The Huelga bird, as their

8 official logo, is prominent on their home page. And we've

9 included a copy of that. And I would have thought that that

10 would be a reliable, if not authoritative, source of

11 information or insight on that point.

12

I mean, we accessed as well, the official website of

13 the California Department of Education, and excerpted again for

14 the Court's benefit, the officially-approved curriculum -- I

15 think it comes from the seventh grade -- in which the approved

16 course materials regarding the Huelga bird and its cultural

17 provenance, the Aztec eagle, is discussed in some detail.

18

The other two sites that we accessed, one was the

19 online Merriam-Webster dictionary definition of "Huelga," which

20 turns out to be Spanish for "strike."

21

And then, the fourth item was a website, I think it's

22 City College of San Francisco, or maybe it's UCSF -- it's one

23 of the local colleges, that had a website that included a

24 section on the Huelga bird, and included a number of

25 photographs that we also copied, photographs of all manner of

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1 people, I think, including -- Little Ms. Sunshine is our final

2 photo in that series, displaying or brandishing Huelga bird

3 insignia on flags and such like.

4

So, I'm not a -- I am not adept at Internet surfing,

5 put that disclaimer on the Record. But I think, and we've

6 cited a number of cases in which courts in the past have

7 accepted or taken judicial notice of information or evidence

8 from website sources. I think this is another appropriate

9 occasion for that.

10

MR. FEUDALE: Well, Your Honor, if you look in

11 Mr. White's motion, the types of things cited to are, you know,

12 for example, the court took judicial notice in one case that

13 there are a lot of adult websites or something out on the web.

14

I mean, that's something that's easily capable of

15 ready and accurate interpretation. Just type in the word, a

16 lot of sites come up. Here, Mr. White --

17

THE COURT: Not on my computer, it doesn't.

18

MR. WHITE: Speak for yourself, Counsel.

19

MR. FEUDALE: Of course, Your Honor. And I don't

20 mean to offend the Court.

21

THE COURT: We can't even go there.

22

MR. FEUDALE: Of course. I don't mean to offend the

23 Court, and I apologize if we did. But --

24

THE COURT: I'm actually really tired of this whole

25 discussion, so I'll allow you to go on as long as you must, but

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1 I'm tired of hearing about this.

2

MR. FEUDALE: Okay, and I'll make it brief, Your

3 Honor.

4

The only other thing I would like to touch upon,

5 other than the arguments I've made, has to do with, really, the

6 relevancy.

7

THE COURT: What I don't understand is why you guys,

8 either of you, are fighting so hard about this. Because I'll

9 tell you what I actually plan to do, if you want to know the

10 answer to the question.

11

I'm not going to take judicial notice in the way that

12 I'm being requested to, in the motion. I will, however, if I

13 feel it's important, be willing to go to the web. And then I

14 would be able to say, "I can find this thing all over the web

15 in a lot of different contexts." That would be a fact I could

16 just decide.

17

Whether -- why they're using it, I don't really care.

18 The point would be that it's out there, all over the place.

19

Whether it really derives from the Aztec -- and I

20 don't know, either, and maybe I'll look that up in a World Book

21 Encyclopedia at some point -- one way or the other, I think

22 I'll satisfy myself about the provenance of the Huelga bird to

23 the extent necessary.

24

But, I'm not going to grant the request for judicial

25 notice.

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1

MR. FEUDALE: Okay, Your Honor. And that's

2 essentially my argument. My argument isn't so much that the

3 existence of the Huelga bird -- its origins aren't capable of

4 ready and accurate determination.

5

Just, what Mr. White has provided the Court is not

6 appropriate for those things, is really my argument.

7

THE COURT: All right. What else? What

8 other housekeeping matters?

9

MR. WHITE: None other from me, Your Honor.

10

MR. FEUDALE: Your Honor, we would just like to

11 introduce some exhibits into evidence at this time.

12

THE COURT: All right. Have you talked to Counsel

13 about that?

14

MR. FEUDALE: We sent them an e-mail yesterday.

15 Maybe I'll have Mr. Huynh touch upon this.

16

MR. CHAPMAN: We have agreed to almost everything.

17

MR. FEUDALE: Before we go into that, let me just add

18 two exhibits that weren't discussed. And those were the

19 exhibits that I attempted to introduce, or marked for

20 identification today.

21

One is that drawing right there (Indicating), it

22 would be Defendant's Demonstrative C, I would like to introduce

23 into evidence. And the other would be Exhibit 45, which were

24 the 14 Bonds Agent Marquez discussed with the Court.

25

MR. WHITE: That would be 345.

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1

MR. FEUDALE: I'm sorry, Exhibit 345, the 14 Bonds;

2 and Defendant's Demonstrative C would be the two I would like

3 to seek admission on at this time.

4

MR. WHITE: What about 344? Did that come in?

5

MR. FEUDALE: I believe that's already in evidence.

6

MR. WHITE: All right.

7

THE COURT: I don't know if it is or isn't. I don't

8 recall anybody offering anything, so --

9

MR. FEUDALE: Maybe we should confer with Tracy,

10 then. Is 344 in evidence?

11

THE CLERK: No.

12

MR. FEUDALE: Then I would also seek to admit 344

13 into evidence, which are the pictures of the tattoos on the

14 various inmates.

15

THE COURT: Any objection?

16

MR. WHITE: No.

17

THE COURT: It would be received.

18

(Defendant's Exhibit 344 previously received in

19

evidence.)

20

THE CLERK: 344 is in.

21

THE COURT: How about the Bonds?

22

MR. WHITE: No objection, Your Honor.

23

THE COURT: That will be admitted too.

24

THE CLERK: And that is 345, okay.

25

(Defendant's Exhibit 345 received in evidence.)

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1

MR. FEUDALE: And then, lastly, Demonstrative C.

2

THE COURT: Well, I'll tell you. I'm hesitant about

3 that. I'm hesitant about all these big demonstratives. They

4 have been helpful to me to be able to see things.

5

But, are you planning that we would ship all of these

6 things up to the Court of Appeal, in their large format? We

7 have now got however many of them, of the same thing, over and

8 over again.

9

MR. FEUDALE: Sure, Your Honor. I can understand the

10 desire not do that. I think in this particular case, because

11 Agent Marquez more than any other witness had so much gang

12 knowledge --

13

THE COURT: He was able to do it without having it

14 premarked. I noticed that.

15

MR. FEUDALE: Certainly. And I think, you know, this

16 would probably be the most relevant document to -- not

17 "relevant," but would definitely be a document we would like to

18 have into evidence.

19

I think it -- it explains his testimony. It would be

20 hard for, say, the Court of Appeals to follow if they don't

21 have the exhibit where he's marking and explaining where --

22

THE COURT: That will be admitted.

23

(Defendant's Exhibit C received in evidence.)

24

MR. FEUDALE: And there were the two other documents

25 that I believe Plaintiff objects to, so I would like to hit

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1 those first, and then Mr. Chapman and Mr. Huynh can talk about

2 the numerous exhibits we've agreed to.

3

One is Exhibit 201 --

4

THE COURT: Yeah.

5

MR. FEUDALE: -- which is the cell chronology Agent

6 Marquez was talking about.

7

THE COURT: What's the objection?

8

MR. CHAPMAN: Well, my objection is that it's about

9 85 percent completely prejudicial. Notations about fines and

10 parole and this and that.

11

I spoke to Mr. Huynh, and suggested, on his

12 representation of what they wanted it for was to show in and

13 out of various institutions, prisons. And, agreed that that

14 would be fine if they would redact it. And apparently, they

15 don't want to do that.

16

MR. FEUDALE: Well, Your Honor, I think especially in

17 this case, parole dates are necessary. Explains when Mr. Lira

18 was out on parole, when he came back to DVI, when certain

19 events took place.

20

This kind of orients the Court about those facts, and

21 certainly supports Agent Marquez's testimony earlier,

22 concerning that informant and Mr. Lira.

23

THE COURT: Well, the only thing I remember this

24 having been used for was the first three lines on the first

25 page. Is that --

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1

MR. WHITE: Yes.

2

THE COURT: -- about it?

3

MR. FEUDALE: That's correct.

4

MR. HUYNH: And then Mr. Tristan talked about it, and

5 how he calculated it that Mr. Lira was in Ad Seg at DVI for 23

6 days from the period when he was placed in Ad Seg on December

7 28, 1995, to when he was transferred to Pelican Bay on, I

8 believe, September 24, 1996.

9

MR. WHITE: Yeah. Frankly, that testimony is an apt

10 illustration of how confusing or misleading or subject to

11 misinterpretation this document could be. The notion that

12 Mr. Lira, during his ten months -- almost ten months at DVI

13 actually only spent 23 days in Ad Seg lockup there doesn't

14 compute for us.

15

But in any event, if -- if -- if the document were

16 being admitted only for the limited purpose of substantiating

17 Mr. Lira's whereabouts from June through mid-August, 1996, we

18 wouldn't, of course, have any objection. That was dealt with

19 through Mr. Marquez's testimony.

20

THE COURT: It will be admitted just for that

21 purpose. Not for the truth of the offense conduct, if there is

22 any such.

23

MR. HUYNH: For the limited purpose of what, Your

24 Honor?

25

THE COURT: Where he was, when.

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1

(Defendant's Exhibit 201 received in evidence.)

2

MR. FEUDALE: And then, one final exhibit which may

3 draw an objection, that is Exhibit 329, Defense Exhibit.

4

THE COURT: I'm sorry, what, 329?

5

THE CLERK: Yes.

6

MR. FEUDALE: These are excerpts from a witness,

7 Diana Crandall. You may remember, Mr. White introduced some

8 excerpts from her testimony earlier.

9

THE COURT: I actually don't. Is she one of the

10 three witnesses --

11

MR. WHITE: Yes.

12

THE COURT: Okay.

13

MR. FEUDALE: These are further excerpts from there.

14 And I plan on, during -- in our trial brief, and of course, in

15 closing argument, pointing out exactly what lines and page

16 numbers the Court needs to focus on, so that, of course, Your

17 Honor wouldn't have to read through this massive transcript.

18

But there is a lot of pertinent information about the

19 reliability of the '98 debriefing informant, and the procedures

20 that Ms. Crandall would go through to assess an informant's

21 reliability.

22

MR. WHITE: Well, actually, that sort of

23 page-and-line guidance would have been helpful to us while we

24 were trying to wade through these otherwise undifferentiated

25 pages and pages from the transcript.

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1

But this is mostly testimony I adduced or we adduced

2 at deposition. Some of it overlaps what we adduced. It's a

3 bench trial. We basically don't object, although we certainly

4 reserve our right to talk critically about Ms. Crandall's

5 testimony in these excerpts in our post-trial brief.

6

MR. FEUDALE: And other than that --

7

THE REPORTER: Excuse me. So, that's admitted?

8

THE COURT: Okay. Well, I guess it's admitted, in --

9 yeah, it's admitted.

10

(Defendant's Exhibit 329 received in evidence.)

11

THE REPORTER: Thank you.

12

MR. FEUDALE: And other than that, I'll have my trial

13 partner Mr. Huynh and Mr. Chapman confer, speak to the Court

14 about stipulated exhibits.

15

THE COURT: Okay.

16

MR. HUYNH: Your Honor, the parties stipulate --

17

THE CLERK: Wait, wait, I'm sorry. What did we do to

18 329?

19

THE COURT: It's in.

20

THE CLERK: Okay, I'm sorry.

21

(Off-the-Record discussion)

22

MR. HUYNH: Your Honor, the parties stipulate to the

23 admission of the following exhibits: Defense 209. Defense

24 211, 212. Defense 217, 218. Defense 221, 224, 225, 226, 227,

25 229, 232, 233, 239, 240, 241, 244, 245, 252, 253, 257, 261,

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1 263, 268, 269, 278, 279, 280, 286, 298, 304 through 310.

2 Lastly, for defense, 316.

3

And then for Plaintiff, 85.

4

THE COURT: And --

5

MR. HUYNH: Oops, one more. Sorry. Defense Exhibit

6 331, if not already.

7

THE COURT: Mr. Chapman, you agree to all those?

8

MR. CHAPMAN: I do. The 331 had a reference that

9 needed to be redacted, so it's a redacted copy of it.

10

MR. HUYNH: That's correct.

11

THE CLERK: And we have that?

12

MR. HUYNH: That's correct.

13

MR. CHAPMAN: Yes.

14

THE CLERK: We do.

15

MR. CHAPMAN: I don't know.

16

THE COURT: Okay. They will all be received.

17

(Defendant's Exhibits 209, 211, 212, 217, 218, 221,

18

224, 225, 226, 227, 229, 232, 233, 239, 240, 241,

19

244, 245, 252, 253, 257, 261, 263, 268, 269, 278,

20

279, 280, 286, 298, 304, 305, 306, 307, 308, 309,

21

310, 316, and 331 received in evidence.)

22

(Plaintiff's Exhibit 85 received in evidence.)

23

MR. FEUDALE: Do you have a redacted copy?

24

MR. HUYNH: The Court does, yes. I gave the 331.

25

THE CLERK: Okay.

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1

MR. CHAPMAN: If your patience will allow one last

2 thing, Your Honor, the Plaintiff would move to strike two small

3 pieces of Mr. Tristan's testimony. And I'll give you

4 transcript page and line references in a minute.

5

The second one is the more important. But both the

6 first two-and-a-half-page reference and the second

7 two-and-a-half-page -- three-page reference are places where

8 Mr. Tristan described his going back into the C-File, I think

9 within the last couple of days, and finding documents that he

10 then speculated were reasons that decision-makers whom he had

11 never talked to might have used to do things in 1993 or 1994.

12

The first instance, he was talking about various

13 parole records. And the reference in the transcript is 1547,

14 Line 20, to 1549, Line 5. And Exhibit 342, which isn't in

15 evidence, I can't remember whether he described anything about

16 it in his testimony or not.

17

The second reference is at Pages 1717, Line 3, to

18 1720, Line 8, where Mr. Tristan speculated again about pre-1993

19 things that happened at other prisons to Mr. Lira, he thought,

20 from documents that we'd never seen -- though Mr. Huynh said

21 they were in the C-File someplace -- that Mr. Tristan had dug

22 out overnight.

23

The basis for the motion is that the subject matter,

24 the testimony, itself, and in the case of the exhibit 342, are

25 all beyond the scope of his Rule -- way beyond the scope of his

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1 Rule 26 report, beyond the scope of his deposition, beyond the

2 scope of his assignment which he described; that he has no

3 personal knowledge of any of these things, that he's

4 speculating without any foundation. And that old favorite,

5 Evidence Code 403.

6

But basically, these are things which are so far

7 outside the scope of what he was asked to do, and so -- so much

8 of recent origin, that we move to strike as --

9

THE COURT: Tell me again what pages and lines you

10 are talking about.

11

MR. CHAPMAN: Sure. The first one, the least

12 important, is 1547, Line 20 to 1549, Line 5.

13

(The Court examines document)

14

THE COURT: And then the other one is --

15

MR. CHAPMAN: And the --

16

MR. FEUDALE: Can I borrow this for a second?

17

MR. CHAPMAN: Sure.

18

And the second, the more important is 1717, Line 3 to

19 1720, Line 8.

20

(The Court examines document)

21

THE COURT: You realize you are cutting out the

22 Court's question.

23

MR. CHAPMAN: I know. I know. When I saw you start

24 to smile, I knew I was skating rapidly on thin ice.

25

THE COURT: Whoa. Well, I take it you disagree with

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1 what he just said?

2

MR. HUYNH: I do wish that Mr. Chapman had conferred

3 with me about this particular issue.

4

THE COURT: Oh, you can both agree that the Court's

5 question goes? Is that what you're going to say?

6

MR. HUYNH: And so, I don't know what -- the exact

7 pages and what they reference, so I would need to look at them.

8 But certainly Mr. Chapman's objection are very belated, at this

9 point.

10

THE COURT: Well, I'll tell you what we can do. I'll

11 give you an opportunity to think about it, and get back to me.

12 I think you can crank this into your papers.

13

And if it's -- that's something that can be included

14 in your papers, is that you want me to strike these passages,

15 and I'll take a look at it.

16

MR. CHAPMAN: It will be a very short footnote.

17

THE COURT: Okay.

18

MR. HUYNH: Okay. We can do that, then.

19

Thank you, Your Honor.

20

THE COURT: Speaking of papers and coming back, when

21 are we doing that?

22

MR. WHITE: It's the 10th for post-trial --

23

THE CLERK: It's actually February 12th at 10:00.

24

MR. WHITE: That's the hearing.

25

THE CLERK: That's for closings.

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1

MR. WHITE: Right, the closing arguments, a week from

2 Thursday at 10:00. A week from today, next Tuesday, by close

3 of business is the deadline for submission of post-trial

4 briefs.

5

THE CLERK: Oh.

6

THE COURT: That's 2-10.

7

MR. WHITE: Yes.

8

THE COURT: Okay.

9

MR. FEUDALE: If I understood Your Honor correctly,

10 you also would like revised findings of fact and conclusions of

11 law on that date also?

12

THE COURT: That would be helpful to me.

13

MR. WHITE: Yes, that's on our list, too.

14

THE COURT: Okay. Then, we'll see you then. Thank

15 you.

16

MR. FEUDALE: Thank you.

17

MR. WHITE: Thank you.

18

THE PLAINTIFF: Thank you for your patience, Your

19 Honor.

20

THE CLERK: So what I want to do on the 12th is -- on

21 the 12th, I want Counsel to review the binders, you know, after

22 arguments. I'm going to e-file, hopefully, my list before

23 then. So you can download them and compare what I have, so

24 that on the 12th we will finish all the exhibit work.

25

MR. WHITE: That'll be great.

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1

MR. FEUDALE: Okay.

2

MR. HUYNH: Thank you, Tracy.

3

MR. FEUDALE: Thank you, Your Honor.

4

(Conclusion of Proceedings at 3:10 p.m.)

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1

2

3

INDEX OF WITNESSES

4 ROBERT MARQUEZ

5 Direct Examination by Mr. Feudale .................. 1744

6 Cross Examination by Mr. White ..................... 1810

7 Redirect Examination by Mr. Feudale ................ 1853

8 Recross Examination by Mr. White ................... 1865

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1

2

INDEX OF EXHIBITS

3

Marked

4 Plaintiff's Exhibit 85

5 Defendant's Demonstrative Exhibit C

1770

6 Defendant's Exhibit 344

1774

7 Defendant's Exhibit 345

1781

8 Defendant's Exhibit 201

9 Defendant's Exhibit 329

10 Defendant's Exhibit 209

11 Defendant's Exhibit 211

12 Defendant's Exhibit 212

13 Defendant's Exhibit 217

14 Defendant's Exhibit 218

15 Defendant's Exhibit 221

16 Defendant's Exhibit 225

17 Defendant's Exhibit 225

18 Defendant's Exhibit 226

19 Defendant's Exhibit 227

20 Defendant's Exhibit 229

21 Defendant's Exhibit 232

22 Defendant's Exhibit 233

23 Defendant's Exhibit 239

24 Defendant's Exhibit 240

25 (Index continued, next page)

Admitted 1880 1875 1782 1784 1878 1879 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court
(415) 373-2529

Case3:00-cv-00905-SI Document440 Filed02/03/09 Page149 of 151 1888

1

2

INDEX OF EXHIBITS, CONTINUED

3

Marked

4 Defendant's Exhibit 241

5 Defendant's Exhibit 244

6 Defendant's Exhibit 245

7 Defendant's Exhibit 252

8 Defendant's Exhibit 253

9 Defendant's Exhibit 257

10 Defendant's Exhibit 261

11 Defendant's Exhibit 263

12 Defendant's Exhibit 268

13 Defendant's Exhibit 269

14 Defendant's Exhibit 278

15 Defendant's Exhibit 279

16 Defendant's Exhibit 280

17 Defendant's Exhibit 286

18 Defendant's Exhibit 298

19 Defendant's Exhibit 304

20 Defendant's Exhibit 305

21 Defendant's Exhibit 306

22 Defendant's Exhibit 307

23 Defendant's Exhibit 308

24 Defendant's Exhibit 309

25 (Index continued, next page)

Admitted 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880 1880

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court
(415) 373-2529

Case3:00-cv-00905-SI Document440 Filed02/03/09 Page150 of 151 1889

1

2

INDEX OF EXHIBITS, CONTINUED

3

Marked

4 Defendant's Exhibit 310

5 Defendant's Exhibit 316

6 Defendant's Exhibit 331

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Admitted 1880 1880 1880

Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court
(415) 373-2529

Case3:00-cv-00905-SI Document440 Filed02/03/09 Page151 of 151
CERTIFICATE OF REPORTER I, BELLE BALL, Official Reporter for the United States Court, Northern District of California, hereby certify that the foregoing proceedings in C 00-0905 SI, Lira v. Cate, were reported by me, a certified shorthand reporter, and were thereafter transcribed under my direction into typewriting; that the foregoing is a full, complete and true record of said proceedings as bound by me at the time of filing. The validity of the reporter's certification of said transcript may be void upon disassembly and/or removal from the court file.
____________/S/ Belle Ball______________ Belle Ball, CSR 8785, CRR, RMR Tuesday, February 3, 2009
Belle Ball, CSR #8785, RMR, CRR Official Reporter - U.S. District Court
(415) 373-2529

 
 . •
~I
'
I 2 3 4 5 6 7 8 9 10 11 12 13 HOWARD
I\ ICE NEMEROv'5KI
14 CANADY FALK &1\ABKJN
.~. . . . .,,. ."'"'"~ 15
16 17 18 19 20 21 22 23 24 25 26 27 28

Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 1 of 47

DOUGLAS A. WINTHROP (No. 183532)

Email: dwinthrop@howardrice.com

ROBERT D. HALLMAN (No. 239949)

Email: rhallman@howardrice.com

HOWARD RICE NEMEROVSKI CANADY . ''

FALK & RABKIN

A Professional Corporation Three Embarcadero Center, 7th Floor

..,

San Francisco, California 94111-4024

Telephone: 415/434-1600

Facstmile: 415/217-5910

Attorneys for Plaintiff ERNESTO G. LIRA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ERNESTO G. LIRA, Plaintiff,
V .
DIRECTOR OF CORRECTIONS OF THE STATE OF CALIFORNIA; et al.,
Defendants.

No. C 00-905 SI
Action Filed: March 14, 2000
FIRST AMENDED COMPLAINT
4U2NuD.sE.Rc.T§H1E98C3IVIL RIGHTS ACT,
JURY TRIAL DEMANDED

/rJD

FIRST AMENDED COMPLAINT

C 00-905 SI

. ' . \ "

Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 2 of 47

1

This is a complaint for injunctive relief, declaratory relief, and damages arising from

2 Defendant prison officials' deprivation of Plaintiff Ernesto G. Lira's constitutionally

3 protected liberty interest during his confinement by the California Department of

4 Corrections and Rehabilitation ("CDCR") at the Deuel Vocational Institution ("DVI") and

5 Pelican Bay State Prison ("Pelican Bay" or "PBSP").

6

7

JURISDICTION

8

I. This action arises under 42 U.S.C. §1983, and this Court has jurisdiction over

9 Plaintiffs claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).

10

11

VENUE

12

2. Venue is proper in the Northern District of California, San Francisco Division,

13 HOWARD R.ICE NEMEROJSKI
14 CANADY FAlK & R.ABK.IN
15 '~--<o,_..m

under 28 U.S.C. §139l(b)(2) because a substantial part of the events or omissions giving rise to Plaintiffs claims occurred in this district.

16

EXHAUSTION OF ADMINISTRATIVE REMEDIES

17

3. Plaintiff Ernesto G. Lira is currently confined at DVI. During the period of time

18 relevant to this action, Plaintiff was an inmate at either DVI or PBSP. Both institutions have

19 a grievance procedure.

20

4. Plaintiff presented the claim at issue in this Complaint for review through the

21 available grievance procedure.

22

23

1. Appeal No. DVI 96-01026.

24

5. On July 29, 1996, Plaintiff filed Appeal No. DVI 96-01026 (attached as Exhibit I

25 to this Complaint). The informalleve1 review was bypassed.

26

6. The first formal level review was completed on August 23, 1996. Plaintiffs

27 appeal was denied.

28

7. The second formal level rev1ew was completed on September 27, 1996.

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 3 of 47

1 Plaintiffs appeal was denied.

2

8. The third and final formal level review was completed on January 24, 1997.

3 Plaintiffs appeal was denied.

4

9. Plaintiff initiated additional grievances on April4, 1998, and November 3, 1999,

5 each requesting immediate release from his Ad Seg confinement and challenging the basis of

6 for such confinement. Neither was pursued to the final level of review because in each case

7 Plaintiff came to the recognition that the prison administration had already been fully

8 apprised of-and had already rejected-his due process claim through the July 29, 1996

9 appeal.

10

11

2. Appeal No. PBSP 02-03100.

12

10. On November 18, 2002, following this Court's determination that Plaintiffs

HOWARD 13 !\ICE NEMEROv'SKl
14 CANADY FALK & 1\ABKJN
15 il'r<>/<'>'¥"""1'"'"'-~""

July 29, 1996 Inmate Appeal may not have exhausted administrative remedies for his due process claim in its entirety, Plaintiff filed Appeal No. PBSP 02-03100 (attached as Exhibit 2 to this Complaint). The informal level review was bypassed.

16

11. The first formal level review was completed on December 24, 2002. Plaintiffs

17 appeal was denied.

18

12. The second formal level review was completed on January 28, 2003. Plaintiffs

19 appeal was denied.

20

13. The third and final formal level revtew was completed on May 21, 2003.

21 Plaintiffs appeal was denied.

22

23

PARTIES

24

14. Plaintiff Emesto G. Lira is currently an inmate at DVI, in Tracy, California. At

25 all times relevant to this Complaint, Plaintiff was an inmate within the CDCR system. He

26 was incarcerated at DVI from October 31, 1995 until his transfer to PBSP on September 23,

27 1996. Plaintiff remained incarcerated at PBSP until he was paroled on April 14, 2004.

28 Following a parole violation, he has been incarcerated at DVI from May 13, 2005, until the

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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 4 of 47

1 present.

2

15. The Defendants referenced below in paragraphs 16 through 34 were served

3 pursuant to this Court's January 22, 2001 Order of Service, Partial Dismissal and Denial of

4 Injunctive Relief ("Order of Service").

5

16. During the period of time relevant to this action, Defendant Steve Herrera was

6 employed by the CDCR and was a Sergeant at DVI. He is sued in his individual and official

7 capacities.

8

17. During the period of time relevant to this action, Defendant Brian Fielder was

9 employed by the CDCR and was an Investigative Services Unit Officer or a Correctional

10 Counselor at DVI. He is sued in his individual and official capacities.

11

18. During the period of time relevant to this action, Defendant Weldon J. Olmsted

12 was employed by the CDCR and was a Lieutenant at DVI. He is sued in his individual and

13 HOWAR.D R.ICE NEMEROVSKI
14 CANADY FALK £< R.ABKIN
""'""""'"'"'"""""' 15

official capacities. 19. During the period of time relevant to this action, Defendant EdwardS. Alameida,
Jr. was employed by the CDCR and was Director of the Department from September 2001

16 until December 2003. Upon information and belief he was Chief Deputy Warden at DVI

17 from 1991 until 1996, and Warden from 1996 until March 2000. He is sued in his individual

18 and official capacities.

19

20. During the period of time relevant to this action, Defendant Donald R. Busser

20 was employed by the CDCR and was an Assistant Warden at DVI. He is sued in his

21 individual and official capacities.

22

21. During the period of time relevant to this action, Defendant Jose H. Chavez was

23 employed by the CDCR and was a Correctional Counselor at DVI. He is sued in his

24 individual and official capacities.

25

22. During the period of time relevant to this action, Defendant K. Mann was

26 employed by the CDCR and was a Correctional Counselor at DVI. She is sued in her

27 individual and official capacities.

28

23. During the period of time relevant to this action, Defendant Darlene Best-Pizzella

FIRST AMENDED COMPLAINT
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1 was employed by the CDCR and was a Correctional Counselor at DVL She is sued in her 2 individual and official capacities.

3 4 5 6 7 8 9 10 11 12 13 HOWARD
RICE NEMER.L-rv5KI
14 CANADY FAL.K <•RABKIN
15 ·-~··""'"'-"""'
16 17 18 19 20 21 22 23 24 25 26 27 28

24. During the period of time relevant to this action, Defendant John D. Stokes was

employed by the CDCR and was a Facility Captain at PBSP. He is sued in his individual

and official capacities.

25. During the period of time relevant to this action, Defendant Cheryl Bolles was

employed by the CDCR and was a Correctional Counselor at PBSP. She is sued in her

individual and official capacities.

26. During the period of time relevant to this action, Defendant B. Heaps was

employed by the CDCR and was a Correctional Counselor at PBSP. He or she is sued in his

or her individual and official capacities.

27. During the period of time relevant to this action, Defendant Allen K. Scribner

was employed by the CDCR and was an Assistant Warden at PBSP. He is sued in his

individual and official capacities.

28. During the period of time relevant to this action, Defendant C. Patten was

employed by the CDCR and was a Correctional Counselor at PBSP. He is sued in his

individual and official capacities.

29. During the period of time relevant to this action, Defendant Darin W. Bradbury

was employed by the CDCR and was a Correctional Counselor at PBSP. He is sued in his

individual and official capacities.

30. During the period of time relevant to this action, Defendant J. Briddle was

employed by the CDCR and was a Captain in the Institutional Gang Investigation Unit at

PBSP. He or she is sued in his or her individual and official capacities.

31. During the period of time relevant to this action, Defendant Matt J. Nimrod was

employed by the CDCR and was a Correctional Counselor at PBSP. He is sued in his

individual and official capacities.

32. During the period of time relevant to this action, Defendant Donald D. Bruce was

employed by the CDCR and was a Correctional Counselor at PBSP. He is sued in his

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 6 of 47

1 individual and official capacities.

2

33. During the period of time relevant to this action, Defendant K. Cruse was

3 employed by the CDCR and was a Correctional Counselor at PBSP. He or she is sued in his

4 or her individual and official capacities.

5

34. During the period of time relevant to this action, Defendant M. Piland was

6 employed by the CDCR and was a Sergeant in the Investigative Services Unit ("ISU") at

7 PBSP. He is sued in his individual and official capacities.

8

35. The Defendants referenced below, in paragraphs 36 through 49 were not served

9 with Plaintiff's initial Complaint because their acts depriving Plaintiff of his constitutionally

10 protected liberty interest were conducted, entirely or in large measure, after Plaintiff's initial

11 Complaint was filed. They are included in Plaintiff's First Amended Complaint according to

12 the same rationale employed by Court when it determined that Plaintiff stated a cognizable

13 HC1WARD R.Ja NEMEROVSI<J
CAN~f~ 14
[-<RABKIN

claim for relief for a due process violation against those "who were on the committees that decided to place or retain Lira in administrative segregation." Order of Service at 6.
36. During the period of time relevant to this action, Defendant D. Smith was

16 employed by the CDCR and was a Facilities Captain at PBSP. He is sued in his individual

17 and official capacities.

18

37. During the period of time relevant to this action, Defendant J. Cox was employed

19 by the CDCR and was a Correctional Counselor or a Facilities Captain at PBSP. He is sued

20 in his individual and official capacities.

21

38. During the period of time relevant to this action, Defendant R. Pederson was

22 employed by the CDCR and was a Correctional Counselor at PBSP. He is sued in his

23 individual and official capacities.

24

39. During the period of time relevant to this action, Defendant J. Schwartz was

25 employed by the CDCR and was an Associate Warden at PBSP. He or she is sued in his or

26 her individual and official capacities.

27

40. During the period of time relevant to this action, Defendant B. O'Neill was

28 employed by the CDCR and was an Assistant Warden at PBSP. He is sued in his individual

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 7 of 47

I 2 3 4 5 6 7 8 9 I 0 11 12 13 HOW'\RD
RICE NEMER.O/SK.l
CA~~B( 14
&RABKIN
,~.~ 15 4 .... , ••,.,. .
16 17 18 19 20 21 22 23 24 25 26 27 28

and official capacities.

41. During the period of time relevant to this action, Defendant Richard Kirkland was

employed by the CDCR and was an Associate Warden or Warden at PBSP. He is sued in

his individual and official capacities.

42. During the period of time relevant to this action, Defendant Steve R. Moore was

employed by the CDCR and was Warden at DVL He is sued in his individual and official

capacities.

43. During the period of time relevant to this action, Defendant Victor Almager was

employed by the CDCR and was an Associate Warden at DVI. He is sued in his individual

and official capacities.

44. During the period of time relevant to this action, Defendant K. Slatten was

employed by the CDCR and was a Facility Captain at DVI. He is sued in his individual and

official capacities.

45. During the period of time relevant to this action, Defendant L. Olivas was employed by the CDCR and was a Facility Captain at DVI. He is sued in his individual and

official capacities.

46. During the period of time relevant to this action, Defendant P.S. Nowling was

employed by the CDCR and was a Correctional Counselor at DVI. He is sued in his

individual and official capacities.

47. During the period of time relevant to this action, Defendant S. Dwight was

employed by the CDCR and was a Correctional Counselor at DVI. He is sued in his

individual and official capacities.

48. During the period of time relevant to this action, Defendant M. Day was

employed by the CDCR and was an Institutional Gang Investigator at DVL He or she is

sued in his or her individual and official capacities.

49. During the period of time relevant to this action, Defendant J. Maykel was

employed by the CDCR and was an Institutional Gang Investigator at DVI. He is sued in his

individual and official capacities.

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 8 of 47

I

50. At all times relevant to the events described herein, all of the Defendants have

2 acted under color of state law, in the course and scope of their employment.

3

51. Plaintiff is informed and believes, and on the basis of such information and belief

4 alleges, that each of DOES 1 through I5 is responsible in some manner for the injuries

5 alleged in this Complaint. The true names and capacities of said DOES I through I5, are

6 presently unknown to Plaintiff, who therefore sues DOES 1 through I5 by such fictitious

7 names and will seek leave to amend this Complaint to add their true names and capacities

8 when the same have been ascertained.

9

10

STATEMENT OF CLAIM

11

52. Defendants imposed and are imposing atypical and significant hardship on

12 Plaintiff in relation to the ordinary incidents of prison life by confining him in DVI

13 HOVVARD RICE NE.tv\ER.Civ'SK.l
~~8! 14
&RABKJN
...........,~.""""' 15

administrative segregation ("Ad Seg") and in the Pelican Bay security housing unit ("SHU") for more than eight years. In Ad Seg, Plaintiff was locked in a windowless cell for twentytwo and one-half hours each day, every day of the year. There he had minimal yard time (at

16 DVI approximately one and one-half hours each week), he was denied for many years all

17 educational programs, he could not work or accrue work credits, and he was disallowed

18 contact visits or telephone access. He has suffered severe anxiety and has been diagnosed

19 with, and treated for, post-traumatic stress disorder as a result of his eight years of Ad Seg

20 confinement. This long-term deprivation of Plaintiffs constitutionally protected liberty

21 interest was supported by no reliable evidentiary basis, and was executed without the

22 procedure required by the Due Process Clause of the Fourteenth Amendment to the United

23 States Constitution. For ten months Plaintiff was denied the opportunity to review all of the

24 evidence relied upon to confine him in Ad Seg as a prison gang affiliate, he was never

25 granted a hearing or any meaningful opportunity to present his views, and, despite Plaintiffs

26 requests, the periodic reviews by Defendant prison officials failed to consider the evidentiary

27 basis for his confinement or engage in any meaningful review of his classification.

28

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 9 of 47

1

FACTUAL ALLEGATIONS

2

53. Plaintiff was transported to DVI reception center on October 31, 1995, following

3 the completion of a criminal trial at Sacramento County Superior Court. On December 28, 4 1995, Plaintiff was handcuffed and removed from the DVI general population and placed in

5 Ad Seg in DVI's K-Wing. For the duration of his sentence Plaintiff would remain confined 6 in Ad Seg, first at DVI and then at Pelican Bay.1

7

54. Plaintiff was informed by Defendant S. Herrera that his Ad Seg confinement was

8 ordered by Defendant W.J. Olmsted, who, upon information and belief, had been informed

9 by Defendant B. Fielder of the Investigative Services Unit that Plaintiff was a validated

10 member or associate of the Northern Structure Prison Gang. Plaintiff had no prior

11 knowledge of the validation, he was not informed of any evidence supporting the validation,

12 and he had no meaningful opportunity to challenge the validation. Defendant Herrera

13 HClWARo
RICE
NECMAE~ROfvrSKJ 14
&RABKJN
""""~"·"~·~..... 15

instructed Plaintiff to sign a CDCR Form 114-D ("114-D") ("Order and Hearing for Placement in Segregated Housing") which was already filled out. Plaintiff signed the 114D, having been assured by Defendants Fielder and Herrera that the DVI Institutional

16 Classification Committee ("ICC") would soon review and evaluate his central files ("C-

17 Files") to determine whether the validation was proper, and would provide Plaintiff with an

18 opportunity to review any evidence supporting his validation and to present his position. 19 Plaintiff did not understand his signing of the 114-D to waive his due process rights, and he 20 consistently informed Defendants at each committee review and at every opportunity that he 21 demanded (1) all evidence supporting the validation underlying his Ad Seg confinement, 22 (2) a hearing concerning his Ad Seg confinement,2 and (3) the aid of a staff assistant and

23 investigative personnel.

24

55. The 114-D that Plaintiff was instructed to sign on December 28, 1995, indicated

25

26

1The bulk of that time was spent in the Pelican Bay Security Housing Unit ("SHU"),

the equivalent of Ad Seg conditions of confinement at California's highest security prison.

27

2Plaintiff wanted access to the evidence before a hearing, so that he could understand

28 the claims against him and adequately prepare to challenge those claims.

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 10 of 47

1 that he was "entitled to a written decision including references to the evidence relied upon

2 and the reasons for such confinement" and that "[p]rior to initial placement, or within 48

3 hours of such placement, an inmate is entitled to written notice of the reasons for placement

4 in sufficient detail to enable the inmate to prepare a response or defense." Defendants

5 contravened CDCR regulations by providing no reference to any evidence relied upon other

6 than a meaningless statement that the DVI Investigative Services Unit ("ISU") "informed

7 [Defendant Olmsted] that [Plaintiff was] a validated Northern Structure associate."

8

56. On January 4, 1996, Plaintiff appeared before the DVI ICC for an initial review

9 of his Ad Seg confinement. The ICC panel included Defendants E. Alameida, Jr., D. Busser,

10 and J. Chavez. Plaintiff denied any involvement with the Northern Structure Prison Gang,

11 and pointed out that he had no record of violence and no recent disciplinary infractions

12 (CDCR Form 115s) in his files. He demanded that he be shown the evidence supporting his

13 HOWARD R.lCE NEMEl'Ov'SKI
~PZ 14
& R.AilKJN
'""""'"'"''·"'~-'-"" 15

validation and Ad Seg confinement. Plaintiff was informed that his C-Files had not been available to the ICC, and that a review of his validation or a confirmation of his status could not be made until the ICC was in possession of the relevant files. Despite the absence of any

16 reliable evidence, the ICC at this stage ordered the continuation of Plaintiff's Ad Seg

17 confinement. Plaintiff's requests for (1) all documentation related to his validation, (2) a

18 staff assistant to help file a grievance, (3) an investigative employee to aid in obtaining

19 evidence and interviewing witnesses, and (4) a hearing before the Institution Gang

20 Investigator concerning his validation, were summarily denied and he was returned to his

21 cell within approximately five minutes.

22

57. Plaintiff's Ad Seg confinement continued, and on February 8, 1996, Defendants

23 D. Schmidt, J. Chavez and D. Busser conducted a 30-day ICC review. Upon information

24 and belief, no investigation or review of Plaintiff's alleged validation was conducted, yet

25 Defendants nonetheless ordered the continuation of Plaintiff's Ad Seg confinement.

26 Plaintiff was not present at the review due to an unrelated court appearance.

27

58. Upon his return to DVI on February 29, 1996, Plaintiff was again confined in Ad

28 Seg. Plaintiff refused to sign a new 114-D prepared and endorsed by Defendant Olmsted,

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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 11 of 47

1 fearing that he would waive his right to a hearing. Defendant Herrera informed Plaintiff that

2 a refusal to sign the 114-D could lengthen his Ad Seg confinement. Plaintiff requested that

3 Defendant J. Chavez provide him with any evidence relied upon in confining him to Ad Seg.

4 As before, no evidence was provided and no hearing conducted.

5

59. On March 7, 1996, Plaintiff appeared for a 30-day revtew of his Ad Seg

6 confinement before an ICC panel including Defendants D. Schmidt and J. Chavez. Plaintiff

7 again noted that his C-Files reflected no violence or disciplinary infractions, and repeated his

8 demands for evidence pertaining to his validation, for a hearing, for a staff assistant and

9 investigative employee. Plaintiff also delivered a CDCR Form 602 Inmate Appeal ("Inmate

10 Appeal" or "grievance") to Defendant J. Chavez requesting the evidence supporting his

11 alleged validation as a prison gang associate. Defendant Schmidt indicated that there was in

12 his files a CDCR Form 128B-2 ("128B-2") dated July 2, 1993, that purportedly validated

~Ro 13 RlCE NEMERCNSKJ
~8( 14
&RABKJt-<
""~ffl"""·fr~'""' 15

him as a prison gang member, and that it needed to be reviewed to determine Plaintiff's status. Plaintiff was further informed by Defendant D. Schmidt that after Plaintiff's return from another unrelated court appearance "all this would be cleared up." Within

16 approximately five minutes, Plaintiff had been returned to his cell. The ICC panel sought a

17 90-day extension of Plaintiff's Ad Seg confinement, which was approved on April3, 1996,

18 in order "to allow completion of gang validation process."

19

60. Plaintiff was later informed by Defendant J. Chavez in general terms that one of

20 the documents ("128B chronos") cited in the 128B-2 related information allegedly provided

21 by R. Romero, an officer at the Merced County Sheriff's Department. Plaintiff also learned

22 that a drawing with gang symbols had been attributed to him, and that the drawing was also

23 cited in the 128B-2. He was eventually granted access to the above-mentioned documents,

24 but it was not until he had been confined in Ad Seg for nearly ten months that Plaintiff was

25 able to review all of the evidence supporting his validation.

26

61. On April4, 1996, an ICC panel including Defendants D. Schmidt, D. Busser and

27 J. Chavez conducted a 30-day review and ordered the continuation of Plaintiff's Ad Seg

28 confinement. Upon information and belief, the reliability of any evidence in support of such

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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 12 of 47

1 confinement was not reviewed.

2

62. On June 20, 1996, Plaintiff returned from an unrelated court appearance and was

3 immediately returned to Ad Seg confinement. The 114-D once again failed to refer to any

4 specific evidence justifying Ad Seg confinement, much less a showing of such evidence in

5 sufficient detail to enable Plaintiff to prepare a response or defense. The form offered only

6 the meaningless statements that Plaintiff was in Ad Seg before he left for court, and that

7 "information obtained from DVI ISU indicated that you are a validated 'Northern Structure'

8 gang associate."

9

63. On June 27, 1996, Plaintiff appeared before an ICC panel including Defendants

10 D. Busser, D. Schmidt and J. Chavez for an initial review of his Ad Seg confinement.

11 Plaintiff repeated his demands for evidence, a hearing, a staff assistant and investigative

12 employee. He complained that the ICC had been giving him "the run-around"-confining

13 H<)WARo RICE NEMERDvSKI
CA~~[r 14
&RABKIN
'"" ..,. ,._.. 15

him in Ad Seg but refusing to provide any evidentiary basis for such confinement. Plaintiff informed the panel that to the extent it was relying on an alleged statement of Officer R. Romero from the Merced County Sheriffs Department, that reliance was improper

16 because Officer Romero had informed Plaintiff that he had not identified Plaintiff as a

17 member or associate of a prison gang, and had written a letter to DVI to that effect. Within

18 approximately five minutes, the ICC panel had denied Plaintiffs requests, and while

19 acknowledging that it had not yet reviewed Plaintiffs C-Files "for prison gang

20 membership," nonetheless ordered the continuation of his Ad Seg confinement, and returned

21 him to his cell.

22

64. On July 25, 1996, Plaintiff appeared before an ICC panel including Defendants

23 D. Schmidt, D. Busser, and K. Mann for a 30-day review. Plaintiffs demands for evidence

24 and a hearing were ignored. After seven months in Ad Seg, the ICC had finally reviewed

25 Plaintiffs C-Files, and had ordered a current CDC Form 128B-2 via the ISU. Plaintiff had

26 no opportunity to review or participate in the preparation of the 128B-2, and upon

27 information and belief, the proper procedural safeguards in the validation process were not

28 observed. Despite the absence of a completed 128B-2 (or the supporting 128B chronos)

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 13 of 47

1 validating Plaintiff, and despite Defendant Busser's observation at the review that Plaintiffs

2 C-Files did not demonstrate that Plaintiff was a threat to staff or other inmates, the ICC

3 revealed that it had nonetheless made up its mind, stating: "ICC has reviewed the C-File and

4 the SSU 128B-2 chrono has been ordered via ISU. Upon its receipt, RC processing will be

5 completed and the case referred to CSR for endorsement and transfer to PBSP-SHU on

6 Indeterminate SHU status based on validated gang membership in the Northern Structure

7 Prison Gang.'' Defendant Busser relayed that determination to Plaintiff during the review,

8 responding to Plaintiffs request to be released from Ad Seg by telling him that the only

9 place he would be going is to the SHU at Pelican Bay. Ad Seg confinement having been

10 assigned on an indeterminate basis, in the absence of any reliable evidentiary basis and

1I without any type of hearing, Plaintiff was back in his cell within approximately five minutes.

12
HOWARD 13 R.ICE NEMERDv'SKJ
cANtpz 14
&RABKIN
'"''""""'"~""'"'"' 15

65. On July 27, 1996, Plaintiff requested an interview with Defendant K. Mann to review any 128B chronos and I030s3 relied upon to validate him or otherwise confine him in -Ad Seg. Defendant K. Mann declined the interview and informed Plaintiff on July 30, I996, that "[w]hen your 128B-2 is received from SSU we will also receive supporting documents

16 and you will be served 1030's."

I7

66. On July 29, 1996, after seven months of Ad Seg confinement and now aware that

18 despite critical evidentiary and procedural shortcomings the ICC intended to transfer him to

19 Pelican Bay for indeterminate Ad Seg confinement, Plaintiff filed an Inmate Appeal

20 challenging his Ad Seg confinement and the evidentiary basis for the underlying validation.

21 The grievance specifically requested that Plaintiff be released from Ad Seg and that I28B

22 chronos supposedly supporting his gang validation-those he had been able to review and

23 any others he had not yet been granted access to--be removed from his C-Files. Ex. I at 1.

24 Plaintiff also noted that he had not been provided with the type of details concerning his

25 validation that would enable him to prepare for a hearing. !d. at 3.

26

27

3CDCR Form 1030 is a confidential information disclosure form that references the

28 nature of a confidential statement without identifying the informant.

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 14 of 47

1

67. On August 22, 1996, Plaintiff appeared before an ICC panel including

2 Defendants D. Busser, D. Best, and K. Mann. Plaintiff repeated his requests for all the

3 evidence relied upon to validate him and for a hearing. Defendants acknowledged that the

4 ICC still did not have access to "the documents utilized by SSU to validate inmate."

5 Defendant D. Best informed Plaintiff that she had received his Form 602 Appeal and that she

6 would review his grievance.

7

68. On August 23, 1996, Plaintiff was interviewed by Defendant D. Best. Plaintiff

8 informed her again that any alleged statements made by Officer R. Romero were not reliable

9 and again sought access to all evidence used to support his Ad Seg confinement. In her

10 denial of Plaintiff's Inmate Appeal, Defendant Best noted that the ICC had not been able to

11 verify Plaintiff's validation status because it had not received Plaintiff's C-Files until

12 July 25, 1996. Id. at 9. She further observed that in reviewing the C-Files it was apparent

13 HOWARD RILt: :-.JEMERCNSKJ
cA~~[:' 14
& RABKIN
'"'~·"-""'"'!·~·~· 15

that the validation dated July 2, 1993, did not meet validation requirements and that the ISU had been contacted to investigate Plaintiff's status and to complete a current 128B-2. She noted that "[t]o date this chrono has not been received at DVI." !d. Although she had no

16 evidence to rely on, Defendant Best nonetheless denied Plaintiff's grievance "since staff

17 believes you are an associate member of this prison gang ..." ld. Plaintiff appealed that

18 decision on September 2, 1996, commenting that the 1993 validation was "all wrong" as

19 Defendant Best herself had noted.

20

69. Upon information and belief, on September 4, 1996, unbeknownst to Plaintiff,

21 Defendant Olson of the Investigative Services Unit "revalidated" Plaintiff as a Northern

22 Structure Prison Gang associate. The materials on which the revalidation was based were

23 reported to be the contents of a "gang validation package" dated June 22, 1993. Although

24 apparently in the CDCR system for more than three years, Plaintiff had been afforded no

25 reasonable notice of the claims against him, had not been provided with all the evidence

26 supporting the validation (or revalidation), and had not been given a hearing. This

27 "revalidation," in tum, was the basis for the denial of Plaintiff's grievance at the second

28 formal level review by the DVI Warden, Defendant E. Alameida, Jr., on September 27,

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 15 of 47

1 1996. The Warden's response, prepared by N. Kramer in consultation with Defendant

2 K. Mann, indicated that an updated 128B-2 had been filed on September 4, 1996, validating

3 Plaintiff and making his "indeterminate placement" in Ad Seg appropriate. Id. at 11. Upon

4 information and belief, no inquiry was made into the reliability of the evidence used for the

5 revalidation, even though the documents referenced were more than three years old and even

6 though their reliability had been directly called into question in Plaintiffs grievance.

7

70. On September 19, 1996, Plaintiff appeared before an ICC panel including

8 Defendants D. Busser, D. Best, and K. Mann. As planned, having received the updated

9 128B-2 , the ICC elected to impose an indeterminate SHU term at Pelican Bay. Plaintiffs

10 requests for all the evidence and for a hearing were denied. Defendant Best acknowledged:

11 at that session that the validation did not meet departmental requirements, but Defendant

12 Busser informed the panel that any such problems had since been "taken care of' with the

13 HQV\IARD RICE NEMERCJVSKJ
CA1~fK 14
&RABKIN
·~~'""""'''!"~~~. 15

updated 128B-2. No copy of the 128B-2 (or any supporting evidence) was provided to Plaintiff. Within approximately five minutes, Plaintiff had been escorted back to his cell. The next day, the DVI CSR endorsed an indeterminate SHU confinement. Three days later,

16 on September 23, 1996, Plaintiff was transferred to the Pelican Bay SHU, where he

17 continued to be confined in a windowless cell for twenty-two and one-half hours each day,

18 and continued to be deprived of work or educational programs.

19

71. On September 27, 1996, Plaintiff appeared before the PBSP Unit Classification

20 Committee ("UCC") for his initial review. The Committee panel included Defendants

21 C. Bolles and B. Heaps. Plaintiff demanded that Defendants provide him with any and all

22 evidence supporting his validation, and with the due process protections denied him at DVL

23 Without reviewing the reliability of the evidence underlying the validation Defendants

24 denied Plaintiffs demands and instead advised him to pursue a "debriefing" procedure-to

25 reduce his own SHU confinement by informing on other inmates. When Plaintiff disavowed

26 any knowledge concerning Northern Structure Prison Gang members, Defendants intimated

27 that he could make something up. At every ICC or UCC review thereafter, Plaintiff was

28 informed that "debriefing" was his only way out of the SHU.

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 16 of 47

1

72. On October 18, 1996, in an Olson review conducted with Defendant B. Heaps,

2 Plaintiff was provided copies of all of the evidence relied upon in validating him as a

3 Northern Structure Prison Gang associate-including the 128B-2 and 128B chronos, and a

4 1030 confidential information disclosure indicating that "during a debriefing, an inmate

5 identified you as a Northern Structure." This was the first time, nearly ten months into his

6 Ad Seg confinement, that Plaintiff was able to review the 1030 disclosure relied upon to

7 validate him. Plaintiff showed Defendant B. Heaps his Inmate Appeal (he had received the

8 second formal level response several days prior) and indicated that this was the first time he

9 had seen some of the documents, and the first time he had even heard about a Confidential

10 Memorandum dated September 25, 1992. Defendant Heaps agreed that Plaintiff should

11 persist with his Inmate Appeal, observing that it was a particularly weak validation.

12

73. When Plaintiff was finally able to review all of the evidence supporting his

13 HOWARD RICE NEMERLA'SKI
~82" 14
& R/\BKJN
""""''~.,,.,. . . 15

validation and Ad Seg confinement, his concerns about the nature and reliability of the evidence-as voiced at ICC panel reviews and in his Inmate Appeal-were immediately confirmed. Upon information and belief, the validation was based upon a Confidential

16 Memorandum dated September 25, 1992, and two 128B chronos dated May 10, 1993. One

17 of the 128Bs was based on statements allegedly made by Officer R. Romero, which Officer

18 Romero had later contradicted, and the other described a gang-related drawing that bore no

19 indications that it was made by Plaintiff. In addition, Plaintiff is informed and believes that

20 the Confidential Memorandum was uncorroborated at the time it was filed. Convinced there

21 was no reliable evidentiary basis for his Ad Seg confinement, Plaintiff appealed his

22 grievance to the Director's Level review, where his appeal issue was framed as follows: .

23 "Whether or not the institution's denial of appellant's request to release him to the general

24 population and remove all gang related information from his Central File (C-File) is

25 appropriate." /d. at 12. Relying on the September 4, 1996 revalidation, the Director's office

26 denied Plaintiffs appeal on January 24, 1997. Although Plaintiff indicated during an

27 interview with Appeal Examiner H. Bard that a simple telephone call to Officer Romero

28 would demonstrate that the evidence was unreliable, the Director's Level response held that

FIRST AMENDED COMPLAINT -15-

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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 17 of 47

1 "appellant fails to provide convincing proof that he was inappropriately removed from the

2 general population." /d. at 14. Copies of the Director's denial were sent to DVI and PBSP.

3

74. Plaintiff reported the fundamental problems with the evidence underlying his Ad

4 Seg confinement to Pelican Bay ICC and UCC review panels, including but not limited to

5 the ICC annual review conducted on February 20, 1997, by Defendants A. Scribner~

6 J. Stokes, C. Bolles, and B. Heaps. Defendants responded that Plaintiffs Inmate Appeal had

7 been reviewed and denied, indicating that his confinement in the SHU was more than 8 justified.4 Plaintiff believed that the unreliability of the evidence would have been

9 discovered during a reasonable review or investigation, but he could not persuade

10 Defendants to listen to his arguments or review the evidence. Even after Plaintiff produced a

11 letter from Officer R. Romero indicating that he had no record Plaintiffs association with

12 the Northern Structure Prison Gang while housed in the Merced County facilities, and even

13 H<)Vv'ARD I \ ICE NEl'vtER.OIISKl
c4~W 14
&1\.ABKJN
""""""-"'''-~ 15

after the authenticity of the letter had been verified by Defendant M. Piland, Defendants continued to rely on an inadequate evidentiary basis to confine Plaintiff in Ad Seg for a total of more than eight years.

16

75. When Plaintiff produced the letter from Officer Romero contradicting one of the

17 128B chronos at a UCC Review before Defendants J. Stokes, C. Patten, and D. Bradbury in

18 March 1998, he was told that the letter did not change anything, and that if he wished to he

19 could file an Inmate Appeal. Plaintiff initiated the grievance process seeking to be released

20 from Ad Seg and to have Officer Romero's letter entered in his C-Files. On August 6, 1998,

21 Defendant M. Piland denied Plaintiffs grievance at the first formal level of review, stating

22 that the evidentiary basis for Plaintiffs validation was appropriate notwithstanding Officer

23 Romero's letter, but he confirmed the authenticity of the letter and indicated that it would

24 become part of Plaintiffs C-Files as an attachment to the Inmate AppeaL Plaintiff appealed

25 to the Warden's Level, where his grievance was denied for the same reasons on September

26 21, 1998. Plaintiff did not complete the grievance process because Officer Romero's letter

27

28

4The same observation was repeated at a number of subsequent ICC and UCC reviews.

FIRST AMENDED COMPLAINT
-16-

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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 18 of 47

1 had been attached to his files to his satisfaction (via the Inmate Appeal), and he realized that

2 all other aspects of his grievance-including Officer Romero's refutation of the 128B

3 chrono--had already been addressed and fully exhausted through his July 29, 1996 Inmate

4 Appeal.

5

76. The ongoing failure to review the reliability of the evidentiary basis for Plaintiffs

6 Ad Seg confinement or to afford him a forum in which to present his views was carried out

7 by numerous PBSP UCC or ICC review panels that were conducted between Plaintiffs

8 arrival September 1996 transfer and his parole in April 2004. These panels continued to rely

9 on evidence Plaintiff challenged in his July 1996 Inmate Appeal. The reviews ordering

10 Plaintiffs continued Ad Seg confinement without a proper evidentiary basis and without

11 affording him a hearing or any meaningful opportunity to present a defense included the

12 following:

HowAw 13 P-ICE NEMERCNSKI
~~[K 14
& R.A!'KIN
'"""'"''""""'" 15

• February 20, 1997-Annual review before an ICC panel including Defendants A. Scribner, J. Stokes, C. Bolles, and B. Heaps.
• August 5, 1997-120-day review before a UCC panel including Defendant

16

C. Patten.

17

• March 31, 1998-Initial review before a UCC panel including Defendants·

18

J. Stokes, C. Patten, and D. Bradbury.

19

• May 14, 1998-120-day review before a UCC panel including Defendant

20

M. Nimrod.

21

• September 24, 1998-120-day review before a UCC panel including Defendant

22

J. Briddle.

23

• December 8, 1998-Annual review before an ICC panel including Defendants

24

A. Scribner, J. Briddle, M. Nimrod, and D. Bruce.

25

• April6, 1999-120-day review before a UCC panel including Defendant D. Smith.

26

• August 10, 1999-120-day review before a UCC panel including Defendants

27

D. Smith and K. Cruse.

28

• November 17, 1999-Annual review before an ICC panel including Defendant

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 19 of 47

1

K. Cruse. At this review the panel acknowledged that Plaintiff's validation was

2

called into question by the apparent conflict between Officer Romero's letter and

3

one of the 128B chronos. Plaintiff was informed that he would be reviewed for

4

inactive status. Inactive status was denied on April 4, 2000, upon information and

5

belief due to a Confidential Memorandum dated April 1, 1998, which allegedly

6

indicated Plaintiff was an active associate of the Northern Structure Prison Gang.

7

Plaintiff had not been apprised of this Confidential Memorandum until his inactive

8

status review, and believes it to be inaccurate and inadequately corroborated.

9

• May 31, 2000-180-day review before a UCC panel including Defendants

10

D. Martin and D. Smith.

11

• November 8, 2000-Annual review before an ICC panel including Defendants

12

J. Schwartz and J. Cox.

13 HOWARD R.ICE NF..MEI\0/SKI
CA~~w 14
&R.ABKIN
,,,.......,""·-···" 15

• May 15, 2001-180-day review before a UCC panel including Defendants· D. Smith, R. Pederson, and J. Cox.
• October 17, 2001-Annual review before an ICC panel including Defendants

16

J. Schwartz, R. Pederson, and J. Cox.

17

• April 9, 2002-180-day review before a UCC panel including Defendants J. Cox,

18

S. O'Dell, and R. Pederson.

19

• October 16, 2002-Annual review before an ICC panel including Defendants

20

R. Kirkland and J. Cox.

21

• April 8, 2003-180-day review before a UCC panel including Defendants J. Cox

22

and B. Rose.

23

• September 10, 2003-Annual review before an ICC panel including Defendants

24

B. O'Neill, D. Marvin, and J. Cox.

25

• March 30, 2004-180-day review before a UCC panel including Defendants

26

J. Cox, S. O'Dell, and D. Marvin.

27

77. On March 14, 2000, Plaintiff filed his initial Complaint in this action. The Court

28 served many of the aforementioned Defendants with Plaintiff's due process claim on

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 20 of 47

1 January 22, 2001, but ultimately dismissed Plaintiffs case without prejudice upon

2 Defendants' motion for summary judgment, on May 17, 2002, concluding that Plaintiff had

3 not exhausted his administrative remedies surrounding his "retention" in Ad Seg by various

4 ICC and UCC panels.

5

78. Although Plaintiffs understanding and belief is that he had fully exhausted

6 available administrative remedies for all aspects of his improper Ad Seg confinement, he

7 pursued another Inmate Appeal on November 18, 2002, challenging the improper basis for

8 his validation and the failure of the ICC/UCC reviews to engage in any meaningful

9 consideration of the appropriateness of Plaintiffs confinement. Plaintiffs grievance was

10 denied at each level of review. On December 24, 2002, at the first formal level review,

11 Defendant J. Cox denied Plaintiffs Inmate Appeal, noting that "[t]he original validation

12 documents remain unchanged. You have not provided any new information that would

13 H()W,'\R.D !<.ICE NEMER!.MKI
CA1~ 14
& R.ABKIN
""'"'~"~"-"" 15

warrant any different decision relative to your current PBSP-SHU indeterminate placement." Ex. 2 at 4. The Warden's Level review, conducted by Defendant J. Schwartz on behalf of Warden Joe McGrath on February 3, 2003, reached the same conclusion and warned that

16 future appeals focusing on Plaintiffs validation documentation would be rejected. !d. at 6.

17 Plaintiffs grievance was denied at the Director's Level on May 21, 2003. !d. at 7.

18

79. Plaintiff was released from prison on parole on April 14, 2004, but subsequently

19 had his parole revoked, and was transported to DVI on May 13, 2005, where he was

20 immediately removed to Ad Seg on the basis of his validation as an associate of the Northern

21 Structure Prison Gang.

22

80. The same pattern that characterized his prior Ad Seg confinement re-emerged at

23 DVI. Even though Plaintiff has consistently addressed the deficient evidentiary basis for Ad

24 Seg confinement and the failure to afford him due process at each ICC review, Defendants

25 still-ten years later-persist in depriving Plaintiff of his constitutionally protected liberty

26 interest. Plaintiff was informed that he is again being reviewed for inactive status, but has

27 received no further information and has no observed no signs of progress toward his release

28 from Ad Seg. The recent DVI ICC reviews ordering Plaintiffs continued Ad Seg

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 21 of 47

1 confinement without a proper evidentiary basis and without affording him a hearing or any

2 meaningful opportunity to present a defense include the following:

3

• May 19, 2005-Initial review before an ICC panel including Defendants

4

V. Almager, L. Olivas, B. Fielder, J. Maykel and S. Dwight.

5

• September 28, 2005-Initial review before an ICC panel including Defendants S.R.

6

Moore, K. Slatten, J. Chavez, J. Maykel, and P. Nowling.

7

• April 20, 2006--Initial review before an ICC panel including Defendants S.R.

8

Moore, K. Slatten, J. Chavez, P. Nowling, B. Fielder, and M. Day.

9

81. Plaintiff began treatment for severe anxiety and post-traumatic stress disorder in

10 Spring, 2005. He believes that his condition is the direct result of his long-term Ad Seg

11 confinement.

12

82. Plaintiff remains confined in Ad Seg at the filing of this Amended Complaint;

HOWARD 13 RICE NEMEI\l"Jv'SKI
14 CAN.'\DY FALK &RABKJN
15

still without an adequate evidentiary basis, and still without having been afforded the opportunity to challenge the reliability of his Ad Seg confinement or the underlying validation.

16

17

CLAIM FOR RELIEF

18

83. Plaintiff supports the following claim by reference to the previous paragraphs of

19 this Amended Complaint.

20

84. Defendants' confinement of Plaintiff in Ad Seg for more than eight years

21 imposed atypical and significant hardship in relation to the ordinary incidents of prison life,

22 thus depriving him of a liberty interest of real substance. Defendants have thus deprived

23 Plaintiff of his constitutionally protected liberty interest without affording him the procedure

24 required by the Due Process Clause of the Fourteenth Amendment to the United States

25 Constitution, and without the reliable evidentiary basis required by the Due Process Clause

26 of the Fourteenth Amendment to the United States Constitution.

27

85. As a proximate result of Defendants' conduct, Plaintiff has suffered and

28 continues to suffer severe anxiety. He has been diagnosed with post-traumatic stress

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 22 of 47

1 disorder and is currently being treated with psychiatric medications.

2

86. In acting as described herein above, Defendants have acted knowingly, willfully!

3 and maliciously, or with reckless or callous disregard for Plaintiff's federally protected

4 rights.

5

6

PRAYERFORRELIEF

7 WHEREFORE, Plaintiff respectfully prays that this Court:

8

87. Declare that the acts and omissions described herein violated Plaintiff's rights

9 under the Constitution and laws of the United States.

10

88. Enter preliminary and permanent injunctions ordering Plaintiff's release from his

11 indeterminate Ad Seg confinement on the basis of the inadequate evidence relied upon to

12 date; ordering that such unreliable validation evidence be expunged from Plaintiff's C-Files;

13 HOWARD R-ICE NE1\t\ER.l7V'SKI
cA~fk' 14
&RABKiN
""""'"~·..,·-··· 15

ordering that Defendants release inmates from Ad Seg if evidence supporting Ad Seg! confinement on the basis of gang validation is not provided within 72 hours; ordering that Defendants cease pressuring inmates to waive their rights to a hearing upon placement in Ad

16 Seg and cease requiring inmates to "debrief' in order to secure their constitutionally

17 protected liberty interest.

18

89. Enter judgment in favor of Plaintiff for nominal, compensatory, and punitive

19 damages, as allowed by law, against each Defendant, jointly and severally.

20

90. Award attorney fees and costs.

21

91. Order such additional relief as this Court may deem just and proper.

22
23

24

25

26

27

28

FIRST AMENDED COMPLAINT
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 23 of 47

1 DATED: June 28, 2006. 2 3 4 5 6 7 8 9 10 11 12 HLIWARD 13
RJCE NEMEROVSKI
~~PZ 14
£-<RABKIN
16 17 18
19
20 21 22
23
24 25 26 27 28

Respectfully, DOUGLAS A. WINTHROP ROBERT D. HALLMAN HOWARD RICE NEMEROVSKI CANADY
FALK & RABKIN A Professional Corpo ation
Attorneys for PlaintiffERNESTO G. LIRA

FIRST AMENDED COMPLAINT -22-

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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 24 of 47

•

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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 25 of 47
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If you need more space, attach one additional. sheet.

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Date Submitted: C. INFORMAL LEVEL {Date Received:-------StaH Response: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Staff Signature: ·

Date Returned to ·Inmate:

0. FORMAL LEVEL

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If you are dissatisfied, explain below. attach supportingdocu£'· tl!. , mpleted CDC 115, Investigator's Report. Classification chrono. CDC 128, etc.)and

submit to the Institution/Parole Region Appeals Coordinator fl:it'iirOc:essing within 15 days of receipt of response.

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acc:ompanied by a ~mpleted laim

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INMATE I\PPEALS

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Date Submitted: - - - - - - CDC Appeal Number:

. Case 3:00-cv-00905-SI Document 1- 00. - -F- iled 06/28/06 Page 26 of 47

~- ..._ ___ .

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Due Date:

Staff Signature: Division Head Approved: Signature:

Date Completed: -""::-'~,.......t--:;;,...c;,.~ Returned Date to Inmate:

econd level 0 Granted

0 P. Granted

G. REVIEWER'S ACTION (Complete within 10 working days):
0 See Anached Lener

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fot' the Director's Review, submit all documents to: Directot' of Corrections

P.O. Box 942883

Sacramento. CA 94283-0001

Attn: Chief. Inmate Appeals

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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 27 of 47
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 28 of 47

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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 29 of 47

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DEPARTMENT OF CORRECTIONS

STATE OF CAliFOR~IA

ORDER AND HEARING FOR PLACIMINT IN .IORIOATID HOUSING

I
An inmate is entitled to a written decision including references to the evidence relied upo~ ~~d the reasons for sJ,:h

:onfinement. A co~yofthe co:npl.ete~form must be given to theinmate,a C91l.'Jti'Jeced in thece1~file, and a copy retai1ed

·~.. Ln a centrallocatton at the znstttutwn.

-... ....

~~~

1

FROM: WH-303 to K-

Prior to initial placement, or within 48 hours of such placement, an inmate is entitled to written notice of the reasons {rr

placement in sufficient detail to enable the inmate to prepare a response or defense.

,

r PART I NOTICE OF REASONS FOR PLACEMENT IN ADMINISTRATIVE SEGREGATION

NAME

1 NUt;IBER

INSTITUTION

LIRA

Hb36693

PVk/RC

1

·A determination has been mode to place you in segregated housing. The reasons for such placement are1

!

uriYed .tt Deutl YouUoul IMtihUon u a PV/RTC on 10131195, froa Snraaento County. On 12/27/95 In•tsUgative Services Uni• () inforaed te that you 1r1 .t nlidatttl MorUern Strutvrt uaodlte. Per tht aforeHntiontfl, yoar c:ontinllad prnence in Ut RC/&~
!5 a threat to the safety of staff and intdn alUt, and to tbe ncarity of t~il f~eility. Per :orden of Correction~! UeatenJnt 1.\ lluted, yov are ordered to AdlinistuUn StgrtfiUon tffec~!:j~~~;~~~~·:·~~.JIIndint redev/enltltiori of cast hdors.. · i

1:· 11. Dltsted, Corrtctionil lieutenant

·

•

INWATE SIGNATURE
Copy Given to Inmate
•iff'

,.

0 Refused to Sign

v '· ·Lf- l. t.-t; i. {' .

Representation by counsel-substitute is required when it is determined that the inmate is illiterate or tlfat the complexity o~

the issues makes it unlikely that he/she can collect and present the evidence necessary for an adequate comprehension ofthe case. This determination must be made at the time of initial placement or within 48 hours ofsuch placement. (Complet~

both A and B below.)

· ·

I

PART II COUNSEL-SUBSTITUTE

A. STAFF ASSISTANT (Assigned if inmate is illiterate or issues complex.)

~'· / Nat Assigned

0 Inmate Not Illiterate

.;t.*~.
0 Inmate Declines

0 Issues Not Complex

0 Assigned

(Nome)----------------------------------

,.;.'';i.,.l if #. l .• l..t lt.: ··:J

Other Reasons or Comments:

··

•

t ,; • i1 1 (: • /. • 1.: If ~ {j 7 1.. ~t.-'i /t I i 1

B. INVESTIGATING EMPLOYEE (Assigned when inmate is not illiterate and issues ore not complex but assistance is necessary to enable inmate to

1

o' D collect and present evidence necessary for on adequate comprehension of the case.)

Not Assigned

Inmate Declines

0 Inmate Able to Collect and Present Evidence

0 Assigned

(Nome)--------------------------------------------------------------

,~·/·

· .·

.I .

.
l

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t

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An inmate placemen.'t.

iTsheentiintlmedaCtteoamaseanye3aw:n0ani0gv-ecwtvhu-e~0:h0nec9'c0u5·•'•-ifvS,· I·w~a~~Div•oe. _ct_hu.em7e2n-hto1u0r 0limFitailetidon0, 6or/2r8eq/0u6est

aPcaognetin3u0anocfe4b7eyona

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-1=:r:Rg:T;,.; WAIVER OF HEARING OR OF TIME TO PREPARE ANO REQUESLEOR WITNESSES. _

I understand that I have o right to a hearing concerning ~-1;'1~1~Zg'1~n~W,"s~grc~!,eR ~~~si~:!'01 ~b~~:,~ waive that right.

L__j

'

•

.

'

..QJt.l~lOUl Ol COWWGUtZ'
\..:~ I hereby request that my hearing be continued and not be held before the date of - - - - - - - - - - - - - - - - - - - tOi:jl~~quest the folloJ~;:~/ness(e~}-:- - - - - - - - - - · ~----- ····------· ---------·~----·-··---------------·-
D fUWO~G DGC(!UGZ
Wta<W is ~~~~rz-hf~~.ffYffl( to be held not less than:7ih-;;;;rs ~fter.initial placement in the SegregatedHousing
rJ'nit unless tlie inmate requests in writing additional time in which to prepare a defense. (See Part Ill above.)

n <;:ob>. G!AGU ~0 fUWOjG
bpla1n:
8wllilaiJnseMiub$11.tvte Present:
0 Stoff Assistant 0 Investigating Employee
Other Reasons and Comments:

0 Counsel-Substitute Not Present 0 Inmate Waives AHendance

cr -w • q~WJUvAv1UmOeUsselJsOi!.". rDeGsGeUntWOEJn bltoncesssAeOsI'IN.IUo!ZtW<.6~LuGe6sarlie>Qa J.IO.M..:I.U..ttr.-.il..J.l.rli~~LGuaelsQfeUu~ tOOrLu:~l.q.~.$lb.iW\IlCllG.W2.!~i.U..~ j Or LSe l _$~ _ nce w••~11,-.1....w- L.• .ft.,.ll.l.l~fu

~-----~-- !,,:sEa V!YI'IE

_

_

hazard us to institutional safety and correctionol_gools.

~ii~on:V1011CE 01:: 15EV20V12 l:OIS bfVCEWEV111V1 VDWIV112llfv'l1AE 2ECHECV110V1

we. b\UC.G\l.fl>\.1\ 1_\J ?.11\.\!<.~1>\.l\ qqm.\ tO GU<l\JV"

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O\ O\ Wl· ~~ \0 ~\l~\~0\ b\<lCG\\!(,1!\' 0!.. 11\~W~\l '\'i3 \fOI'\\.2 ?.11\.\1 D\U(..,}\f()\1\' U\I Hl'\.iiU\() ~'l (;U\~\\E>(\ \0 ffi\.~\\GU l.Hl\tc',()

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<:.G\I\!..0\ \!\1>. U\1(\ 0' (.0\:))1 \.GtU~\1{,(,

. \f'.s ~lSUS(l\G ~'G G\I\~\Y•<l; \0 (l 1'\l\.f\\{;U q()CI'G~O\l ~UC.\tH\1,\t'i'. \.(,\E>>..f.lJ(',()\l \0 Wt Gr\~(\1:>\$(,(, \.G\~G{\ !1bO\I 0\H\ W" \.{,0?.0\I'G \~'\.. ?.1\C\l .

OISDEIS YMD HEYISIMe I:OIS bfYCEWEMl IM 2EeiSEeYlED H0ft21Me

DEb'tUWH11 0~ COISISEC110k1?

--~---------~---'~

- .........

i

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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 31 of 47

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:::;:t:::::: off)ce for further· r•;;;. Gordon .. \ . swtreoevr.ed~r!aY~-C.aHdIN~oO!c.t~taelsdol.co'antts~ea.~.~.-,..:obnTe·ha.ec~~~·-i-adg~urea~~leysi;n:-tghh~'e.,as·~:'::bw<aa!nsradw,h.glngte~:~:ar_tbrtee~qtuoeptshtleeedtt1.htls1'sntrmietatutuelrinoLnf~a0a·ln

1
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1

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I.S.U

Correctional Officer

)ATE May 10, 1993

Calaveras Unit
sec
(GANG INFORMATION)

1 i

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--,, . . . ·. . '

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. . ,• • • 5"• • • • •

GENER..o\L CHRONO \

. ' •

.

I

I i

·-· -- - __________;,____________

I'
i.
______.. ______________ .jI -

~AMEand NUMBER LIRA, ERNESTO H-36693

I

CDC·l28·B (Rev. 4/74\

.

I

On April 13, 1993 I received information !rom Officer R. Romero, of' the i

Merced County Sherif:fs Department, who identifies Inmate Lira H-36693 AKA I
"CHINO" to be an associate of the NORTHERN STRUCTURE Prison Gang, and a i

member of the NORTE 14. Officer Romero informed me that on April 24, 1992

Jnmate Lira along with five other northern Hispanic gang members including

Inmate Morales, Juan D-02845 AKA "PULGA" (Val! dated member of the Nor t bern

Structure Prison Gang), approached two Southern Hispanic gang members and

was questioning them about there tattoos and where they were from, Romero

stated that Lira and Morales were the main instigator~ of the incident, and

Lira stated to Officer ·Romero· that all they wanted to do was to play with I

them (Southern Hispanics) for a little while because you know when we go to I

the "PE~n they rush us from the g~te.

I

I

I

I

t\TE
. May 1_0, 1993
-·,,

Continued on page 2

GENERALCHRONO I
I . I

I

I

"" . .·'.\.

I •

: :-:- .:~ ..-:... .. :_ : .... ,• .,,
t~~::\':~(~~~~~{~~~~~~{itt{~~~~;~~t~~~'' .·· ) .

Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 32 of 47

· '··.!·.·,.NAME ·.and NUMBER

~.ra,_, ~cnt:.sco

~..St!P~-~-

·t:;~J1~t~t.-~.::~i.,:_~:>Z?.·«/93 ~ valida~ion )'

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at

p a~•vc(:'k~)·/a)k/g.]:eq..Lr-e.-_,s..-•-.,.r-a-s---r-·e c

e

i

ved The

from documcnr

l}j~}~#,~su}J.mi tted as verification of s 's gang affiliation were sufficient to

l[;~'l3tf0epartmental validati~ requirements. Accordingly, s has bee

!~~full=~_{!(~r,tlje.r!J ~r~re... .

(me.:mb<;u:)(fassocia

t; •' ' ' .,,

/

•torig:/LiC-file

· ·

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GANG IDENTIFICATION VALIDATION
..

ssu
GENERAL

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CXII. I CPai-s.eF3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 33 of 47
DEUEL VOCATIONAL JN~TITUTION Tracy, California
SLWPLEMENTALPAGE

TO: LIRA, ERNESTO, H-36693

RE: Appeal Log No. DVI 96-01026

INMATE INTERVIEWED: the first level appeal review.

Inmate was interviewed on 8-23-96 by Darlene Best, CCII, for

APPEAL ISSUE: CUSTODY/CLASSIFICATION. You are appealing your placement in A~ministrative Segregation (Ad-Seg) and your designation as a prison gang member. You request release from Ad-Seg and removal of all CDC 128Bs from your Central File.

APPEAL RESPONSE: This matter was reviewed by Darlene Best, Correctional Counselorii, at Deu.!!I..Y.0.9J!U9.9.~Llt!$.!itu!jg.JkJ~~£9lJiQ~Cent~r. Both the informal and formal levels of appeal review were by-passed.

CDC 114D dated 6-20-96 reflects you did not wish to have a CDC 114D hearing. However, ICC did review the reasons for your placement in Ad-Seg and approved your placement on 6-27-96. Your retention was based on information provided by ISU at DVI that you are a validated Northern Structure member. There was no Central File available to verify this information. On 7-25-96, ICC reviewed your Central File and noted CDC 128-B dated 7-2-93, listing you as a validated associate of the Northern Structure Prison Gang. Since !fle. ~I?,.C 128-B =da£d. 7-~?3••q~s not .m~et cw:r~nt ~..¥~QD teQui.reO!!e.Dls. ICC directed SSU via DVIIISU to be contacted to investigate your gang status to determine whether information available meets or does not meet current prison
gang validation requirements. Your ~W.W~.~Jl..,!J.e_x.~.P.Qtt..s.q,..p)l,..!,.,C..Q,CJ.2..8J}-2 .•Yp_u. wilJ receive a
c~f.tlli§.£J;u:q,nJ4..lV $Ws"!P~~~~gt~e.!!Jrfeived at DVI.

Un,ll!..x<:~r...s~~~U!Li..s_ful!Y.li!YSs.!~~t.s9-'W..cti..~£J~~'!!i.2!l.J.~.!D.fft..s.llx..~~~red a

threat to the safeD- and .security of the. institution. As vou know. the prison gang known as the

NOrtb;rirs~~~~ ~j~;~'j,7';;;;ot~' Viol~n~e in the institutio~. '

Since \

si.a..f..f..believes

-you

are

an

associate

member of this prison gang, your presence 'in the General Population would jeopardize institutional

security and the safety of staff and inmates.

APPEAL DENIED. Based on the available information, your request for General Population placement is denied at this time. However, you will continue to receive regular ICC reviews and a special review once the above mention CDC 128 B-2 is provided. Furthermore, your request to have all CDC 128Bs removed from your Central file is denied, These informative chronos cannot be removed.

~~
DARLENE BEST Corredional Counselor II DVI-RC

.. E;<tf. i I PfCc.a. s(;e, 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 34 of 47
DEUEL VOCATIONAL INSTITUTION Tracy, California

TO: LIRA, E. H-36693

RE: Appeal Log No.: 96-01026 Second Level Response

APPEAL DECISION:

Appeal denied.

INMATE INTERVIEWED:

On 8-23-96, you were interviewed by Darlene Best,

Correctional Counselor ll, for a First Level Appeal Review.

APPEAL ISSUE: CUSTODY/CLASSIFICATION

You are appealing your placement in the Deuel Vocational Institution (D.V.l) Administrative Segregation (Ad. Seg.) unit and the validity of a CDC 128B Chrono dated 7-2-93.

APPEAL RESPONSE: The issues in your appeal.have been reviewed by N. KRAMER, Correctional Counselor. A review of this matter, including examination of submitted documents, consultation with your assigned Correctional Counselor; Ms. Mann and research of your central file, was conducted for the purpose ofthe Second Level response.

In her written First Level Review completed 8-23-96, Counselor Best accurately explains the reasons for your detainment in Ad. Seg. A review of your case determined it was being handled in compliance with California Code of Regulations (CCR), Title 15, Article 7, Sections 3335, 3336, 3337. More specifically, the following section applies to your case. CCR section 333&(4){f) st:tes:

When the reason for an inmate's. placement in administrative segregation is for nondisciplinary reasons, the hearing will consider all available evidence or information relating to the validity of the reasons given for such placement as well as the need to retain the inmate in administrative segregation pending resolution of the situation of circumstances set forth in the administrative segregation order.

The Institutional Classification Committee (ICC) reviewed your situation and decided to retain
you in Ad. Seg. pending receipt of a new CDC 128B-2 chrono ftcm the Special 'Services Unit (SSU)~in Sacramento, catifornia. The purpose ofthis Chiono is.,to eccuratcly Mluate your status

F;<.H. I I CPasi.e H3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 35 of 47

?.ith the Northern Structure Prison Gang (a· prison. gang known to promote violence in CDC

institutions). Department policy dictating the verification process for determining gang status has

changed. The CDC 128B-2 dated 7-2-93 -does not meet current CDC validation requirements.

Thus, re uests for mt u ated clltono were m

.th SSU. Without the chfono, your gang

status was not validated under the current criteria.

Since you have fiJed our a eaJ for Second Level Response, the CDC 128B-2 {dated 9-4-96) has
een recetve . ·s chrono validates you as an associate of the Northern Structure under current criteria. Therefore, your indeterminate placement in Ad. Seg. is appropriate per CCR, Title 15, Article 7. Administrative Segregation, section 3341.5(c)(2)(A):
(c) Security Housing Unit (SHU). An inmate whose conduct endanger-S the safety of others or the security of the institution shall be housed in a SHU.
(2) Length of SHU Confinement. Assignment to a SHU may be for an indeterminate or for a fu.ed period of time.
(A) Indeterminate SHU Segregation. An inmate assigned to security housing unit on an indeterminate SHU term shall be reviewed by a classification committee at least every 180 days for consideration of release to the general inmate population.

After a analysis of the available information, your appeal is denied for the reasons explained above. If you are dissatisfied with this decision, .you may appeal to the Director's LeveL using Section "H" of your CDC form 602.

/." a£<~P?>o ..
EDWARD S. ALAM

E~ ~'kJr.

Warden

-;-, -- (t..- r, t6"'

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3 3 {I L

(7) (fir f,(/or~ /h,-/ J rf'-f"/ ht9 ve.

.my t .
iY/

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+ I) tt (.l d s s{w -ted ThV'l

rt re v,'-e0 oF m{.( CrtS-e

;+ h~ ~ been doi\'€.? ·-r~-tVI L-Vh'-f 1~

Thl4t ..L CJ<in

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t h ilL) f\ II ~ 1~ 5 ht:: -e. V\ r -e v ,· e. tJ e. d .. 1'/ ::z-v e /f .s ;I- "' s- ·,. 7 c: f:

Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 36 of 47
·cx.H /, Pt..
SlAlE Of CAtiFORNIA-YOUlH AND ADULT CORRECTIONAl AGENCY
DEPARTMENT OF CORRECTIONS P. 0. Box 942883 Sacramento, CA 94283-0001

January 24, 1997

Lira, H-36693 Pelican Bay State Prison P.O. BOX 7000
Crescent City, Ca. 95531-7000

RE: DIRECTOR LEVEL DECISION CASE NO. 9603926 INSTITUTION LOG NO. 96-1026 DVI

This matter was reviewed on behalf of the California Department of Corrections (CDC), Inmate Appeals Branch, at Pelican Bay State Prison (PBSP), on January 13, 1997, by Appeals Examiner H. Bard.

All submitted documentation and supporting arguments of the

parties have been considered.

To the extent such

documentation and arguments are in accordance with the

findings and conclusions stated herein~ they have been

accepted. To the extent they are inconsistent therewith,

they have been rejected.

ISSUES

Whether or not the institution's denial of appellant's request to release him to the general population and remove all gang related information from his Central File (C-File) is appropriate.

FINDINGS

I

The appellant states that he has been improperly validated
as a Northern Structure {NS) Prison Gang AssoCiate·.:----- He

explains that in the past he was a Level I camp qualified

inmate with no documented gang involvement. He states there

is insufficient justification to validate him as a NS

Asso~iate.

He is requesting return to the general

population and to remove all gang related documentation from

his C-File.

EC,<aHsIe .

I3':0P0i--.cv0-0~ 09- 05' -SI

Document 100

LIRA, H 36693 Page 2

CASE NO. 9603926

\ .
'wl Filed 06/28/06 Page 37 of 47

II

The institution takes the position that sjnce be filed for t~Second, Level Respo~se, yeptembe~--~ '-· -~-~ 9 6 ,~Tal Serv~ces Un~t (SSU), t'tx::-porm 128-B-2 has been received. This ·-chr-onDva1:1dates-nifu- as an Assoc1ate·- o-f--the--NS- under
current criteria. The appeal was denied at the Second Level Response after analysis of available information.

III

The Department 1 s rules regarding Gang Activity, Critical
Case Information and Segregated Housing Program Units, are contained in the California Code of Regulations (CCR), Title 15, Sections 3023, 3378 and 3341.5:

3023. Gang Activity. (a) Inmates and parolees shall not knowingly
promote, further or assist any gang as defined in section 3000.

3378. Critical Case Information.

Any . information regarding an inmate/parolee

which is or may be critical to the safety of

persons inside or outside an institution shall_be

documented on a CDC Form 812 (Rev. 4/84 below),

Notice of Critical Case Information--Safety of

Persons and a CDC Form 812-A (Rev. 9/92), Notice

of

Critical

Information--Prison

Gang

Identification; CDC Form 812-B (9/92), Notice of

Critical

Information--Disruptive

Group

Identification; and CDC Form 812-C (4/89) , Notice

of Critical Information- -Conf ident'ial Enemies.

the CDC Forms 812, 812-A, 812-B, and 812-C and all

documents referred to on the forms shall be filed

in the C-File of each identified inmate/parolee.

Any confidential material affecting the critical

case factors of an inmate/parolee shall conform to

the provisions of section 3321. Entries on these

forms shall not be a substitute for detailed

documentation required elsewhere in the C-File.

(c) Gang involvement allegations shall be

investigated by a gang coordinator/investigator or

their designe~.

3341.5 Segregated Program Housing Units.

Special housing units are designated for

extended term programming of inmates not suited

for general population.

Placement into and

release from these units requires approval by a

classification staff representative (CSR) .

£JC<Ia-fs. eI,3:p00t.-cKv-0090~5. -SI Document 100 Filed 06/28/06 Page 38 of 47
LIRA, H-36693 '-'c~sE NO. 9603926
Page 3

(c} Security Housing Unit (SHU). An inmate whose conduct endangers the safety of others or the security of the institution shall be housed in a SHU.

The documentation and arguments presented are persuasive that the appellant fails to provide convincing proof that he was inappropriately removed from the general population.

The documentation reveals that Q!! July 2, 1996;. an

In it tion Gang Investigator collectea and documented

information re c 1ng t e ~pel ant's

an

i~fSOi1 gang. That dodimentat1on was reviewed byt:ne

Insf:..it.ut1on Clas!hfication Committee. On September 4, 1996,

the documentation was reviewed by a SSU special agent who

confirmed and validated the appellant to be an Associate of

the NS Prison Gang. The appellant 1 s case factors were

~eviewed by a Classification Staff Representative, who

subsequently endorsed the appellant to SHU as his conduct

endangered the safety of others and the security of the

institution.

CCR 3023 establishes that "Inmates and parolees shall not knowingly promote, further or assist any gang ... " CCR 3378(c) establishes that "Gang involvement allegations shall be investigated by a gang coordinator/investigator or their designee." CCR 3341.5 establishes that "Special housing units are designated for extended term programming of inmates not suited for general population. Placement into and release from these units requires approval by a classification staff representative. {CSR)." CCR 3341.5 (c) establishes that " ... An inmate whose conduct endangers the safety of others or the security of the institution shall be housed in a SHU."

Based upon the documentation, it is determined that the actions taken against the appellant were proper and in accordance with the referenced CCR.

DETERMINATION OF ISSUE

The institution's denial of appellant 1 s request to release him to the general population and remove all gang ~elated information from his C-File is appropriate.

The appeal is denied.

ORDER

No changes or modifications are required by the institution.

~ i

Case 3:00-cv-009'\.05-SI Document 100 Filed 06/28/06 Page 39 of 47

I
I

•

'--tASE ·LIRA, H-36693

NO. 9603926

I

Page 4

This decision exhausts the administrative remedy available to appellant within the Department of Corrections.

I

I

.. , t;Z:t.t~:/frj~

I

H. BARD, Appeals Examiner

--{ G. BONNIE GARIBAY, .Chief

I

Inmate Appeals Branch

· Inmate Appeals Branch

I
I

cc: Warden, PBSP

I

Appeals Coordinator, PBSP Appeals Coordinator, DVI

I
I

I

I

Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 40 of 47

Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 41 of 47

'. STATE OF CAUFORNIA

I DEPARTMENT OF CORRECTIONS

-~~~:r~~~;~~m

'""'~ :""'M'"'PB"!l ]00-vot o~~f·

CDC 602 (1.2/87)

~ J " "' .

yo~. h~::·:;ssi;;~~~~~n You may appt!al any policy, action or decision which has a si:nificantadverse affect upon With the exception of Serious CDC

. •

committee actions. and classification and staff representative decisions, you must first informally seek relief through discussion with the appropriate staff

member, who will sign your form and state what action was taken. If you ere not then satisfied. you may sand your appeal with all the supporting

d«uments and not more than one additional page of comments to the Appeals Coordinator within 15 days of the action taken. No reprisals will be taken

for using the 11ppeals procedure responsibly.

NAME
£At\/L5Jo };~/9

HUMBER

ASSIGNMENT

.J-/~1/93

tJ A Descrjbe Problem: --rd[ • 7.-v::.::f;r/ D./T/0/\1 /Yd..::£.:5///

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C. INFORMAL LEVEL (Date Received: - - - - - - - Sta~ Response: ------------~-----------------------------

Staff Signature:

Date Returned to Inmate:

D. FORMAl lEVEl If you are dissatisfied. explain below, attach supporting documents (Completed CDC 115. Investigator's Report, Classification chrono. CDC 128, etc.) and submit to the Institution/Parole Region Appeals Coordinator for processing within 15 days of receipt of response.

Signature: ------------------~~--------Note: Property/Funds appeals must be accompanied by a completed
~~;r::~ ~ontrol form~C• -lnm-a1 Claim

I1 ··/_.-...d...,.
~.QV222711]-

·-
07-

·Date Submitted: - - - - - - CDC Appeal Number:
'----------'

_-_9::__-_<_9_ Fir
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st Le~~l
RE,VIEWER

';,

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of 47
__:__/

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Interviewed by:

S~~

------------------------------------··--·---

F. Udissatisfied. e)(plain reasons for requesting a Second~Level Review, and submit to Institution or Parole Region Appeals Coordi receipt of response.

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cY. -· . L::ULl: Signature:

~;_·"t;.,\~/1

Date Submi.tted:

Second Level 0 Granted

0 P. Granted

'i:J_.Denied

·fr l REVIEWER'S ACTI.ON (Complete within 10 working days): Date assigned:---'----''---_;;;'---='----- Due Date: -=-.;;;;:::::____:::::::...,,.L--~

f l See Attached Lette/

""

Sig~ature:. · • )

O_J Date Completed: _/:.._,;·~_.d _f__

Warden/Superintendent Signature:

l 0 2003 Date Returned to lnmafJB

H. If dissatisfied, add data or reasons for requesting a Director's Level Re · w, and submit by mail to the third level within 15 days of receipt of response.

Signature:
For the Director's Review. submit all documents to: Director of Corrections P.O. Box 942883 Sacramento, CA 94283-CX>Ol Ann: Chief. Inmate Appeals

DIRECTOR'S ACTION: 0 Granted 0 See Attached Lener
CDC 602 fll/8 )I

0 P. Granted

0 Denied

0 Other

Date Submined: Date:

. ' "-' · r-~7c·L L. /-'/?.4

Case 3:00-cv-00905-SI Document 100
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Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 44 of 47
~SUPPLEMENTAL PAGE ....,;-
PELICAN BAY STATE PRISON (PBSP) FIRST LEVEL REVIEWER'S RESPONSE
APPEAL#PBSP.-€~02-03100 INMATE: LIRA, H-"66693

You are requesting release from the Security Housing Unit (SHU) and placement on the general population (GP). Additionally you request to have all confidential documentation used in the validation process expunged from the Central File (C-File).

A review of your appeal has been completed. Your complaint, including your requested remedial action, has received careful consideration. Mr. J. Cox, Correctional Counselor II (CCII), was assigned to investigate your allegations by the First Level Reviewer. CCJI Cox interviewed you on December 20, 2002.

During the interview, you related basically the same information as contained in your appeal. You contend you were inappropriately retained on indeterminate status in PBSP-SHU. You claim your validation is inappropriate and that the information used in the validation is also· inappropriate. You are requesting the confidential documentation utilized in the validation be expunged from your C-File.

CCll Cox completed a review of your C-File relative to this appeal issue. The C-File contains a California Department of Corrections (CDC) fonn 128B2, dated September 4, 1996, indicative that you are validated as an associate of the "Northern Structure" (NS) prison gang. Additionally, your C-Flle is inclusive of a CDC-128B Active/L'lactive Gang Status Review dated April 4, 2000. The Active/Inactive review is indicative that there was new information developed as a result of the investigation; a confidential memorandum dated April 4, 1998. The Institutional Classification Committee (ICC) of October 16, 2002, reviewed the aforementioned documents and determined the validation/SHU Indeterminate placement to be appropriate. The Classification Staff Representative (CSR) review completed on November 2i, 2002, following the ICC review, re-endorsed you for retention in PBSPSHU. The CSR reviewed your Classification/validation and indicated the following, in part (Copy attached):

"Inmate remains a threat to the security of the institution by his continuing association with a prison gang engaged in a criminal conspiracy against the safety of others. All referenced documents are present in the

I
I

file, properly annotated and properly disclosed."

I

The original validation documents remain unchanged. You have not provided any new information that would warrant any different decision relative to your current PBSP-SHU indeterminate placement. Your contention that you should be released from SHU or that the confidential memorandums utilized in the validation process should be removed from your C-File, is inappropriate and unsupported by any departmental rule.

After close review of this matter, 1 find that staff have acted appropriately and in accordance with State Law, California Code of Regulations, Title 15, and the Department Operations Manual. There is no evidence to support your claim that continued SHU Indeterminate placement is inappropriate.

Based on the above, your appeal is DENIED at the First Level of Review.

.

..

. /;.k;.;.R{a 2-

··D~tel:''.

Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 45 of 47
• PELICAN BAY STATE PRISON SECOND LEVEL REVIEW

DATEFEB 0 3 Z001

Inmate LIRA, H-36693 Pelican Bay State Prison Facility C, Security Housing Unit Building 10, Celli 07

RE: WARDEN'S LEVEL DECISION APPEAL LOG NO. PBSP-C-02-031 00 C-02-03434

APPEAL: DENIED ISSUE: CUSTODY/CLASS

This matter was reviewed by JOE MCGRATH, Warden, at Pelican Bay State Prison. J. Cox, Correctional Counselor ll, conducted the Appeal interview at the First Level of Appeal Review on December 20, 2002.

ISSUES

The inmate requests to be released from the Security Housing Unit (SHU) to a General Population (GP) setting, where he could have access to "work furlough." He requests to be permitted to present his case to the Warden. He asks that all gang-related infonnation be removed from his Central File. Also, he requests that aU disciplinaries be removed from his Central File from April 1, 2000, through April 10, 2002, as they were issued in retaliation. AdditionaJly, the inmate requests to be personally shown the reliability of the evidence used to validate him as an associate of the Northern Structure prison gang. The inmate has also filed an additional Appeal concerning the Classification Staff Representative (CSR) endorsement of the Institution Classification Committee (ICC) action in this Appeal. These two Appeals are combined and responded to in this response.

FINDINGS

The inmate claims that each year he appears before a Classification Committee to only be told that the validation and supporting documents remain appropriate. The Committee has failed to prove to the inmate the reliability of information used for validation. This failure has denied the inmate the opportunity to challenge the evidence.
II
The First Level Reviewer interviewed the inmate on December 20, 2002. The inmate was advised that his Central File contains a CDC 128-B-2 dated September 4, 1996, validating him as an associate of the Northern Structure prison gang. Additionally, the Central File contains as CDC 128-B dated April 4, 2000, describing additional information being obtained describing the inmate's involvement in gang activity during 1998. This infonnation was reviewed by ICC October 16, 2002, and it was determined the gang validation and indeterminate placement within SHU remained appropriate. The decision to retain the inmate in SHU was subsequently approved by the CSR November 21, 2002. Therefore, the original validation remains appropriate, since there has not been any additional information obtained that would warrant a different decision relative to the inmate's current placement.

'".-..

Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 46 of 47

. ' Supplement Page 2 Lira, H-36693

Appea!. # PBSP-C-02-031 00

-

C-02-03434

III
The California Code of Regulations (CCR), Title 15, Section 3341.5 (c)(A)(2.), identifies a validated prison gang associate as a severe threat to the safety of others or the security of the institution and requires placement in SHU for an indeterminate term.
CCR Title 15, Section 3321 (b)(3 )(B), requires that documentation provided to an inmate regarding confidential information include as much information as can be disclosed without identifying its source, and that it contain an evaluation of the source's reliability.
CCR, Title 15, Section 3341.5 (c)(5), allows the Departmental Review Board to authorize the release of validated gang associates from the SHlJ categorized as not being involved in any gang activity for a minimum of six years.
DETERMINATION OF ISSUE
The inmate is requesting to be released from SHlJ. The inmate contends that since staff have failed to prove the reliability of evidence used to validate him as an associate of a prison gang, the evidence is therefore invalid, making his placement in SHlJ inappropriate. The CDC 128-B-2 of September 4, I 996, was supported by three documents, one dated September 25, 1992, that was deemed to be confidential. The subsequent CDC 128-B dated April 4, 2000, described additional information relative to gang activity contained in a confidential memorandum dated April 1, 1998. Both confidential documents were disclosed via CDC 1030 Forms and included an evaluation of the source's reliability. Each document's reliability had been established through multiple means. However, to provide the inmate with additional information relative to the reliability would result in the confidential source being disclosed. Therefore, the decision reached by the ICC on October 16, 2002, to retain the inmate in Security Housing Unit for an indeterminate period oftime based upon his gang affiliation was appropriate. In the second Appeal, Log #C-02-03434, the inmate contends the same issues. Overall, these Appeals are an attempt to question the accuracy of the validation, which was completed in 1996. The inmate has been informed during several attempts to appeal the validation recently that he exceeded time limits to appeal. Future Appeals concerning ICC or CSR endorsements for Indeterminate placement that are void of Appeal issues concerning due process errors during the Committee and only refer to validation documentation will be rejected. The APPEAL IS DENIED. The inmate has also failed to support his allegation that the disciplinaries from April I, 2000, through April 10, 2002, were issued as retaliation.
MODIFICATION ORDER
No modification of this decision or action taken is required.

Warden Pelican Bay Stat
BDS#017 1-28-03

Case 3:00-cv-00905-SI Document 100 Filed 06/28/06 Page 47 of 47

ri

STATE OF CALIFORNIA

DEPARTMENT OF CORRECTIONS

TNMATE APPEALS BRANCH

P. 0. BOX 942883

SACRAMENTO, CA 94283-0001

DIRECTOR'S LEVEL APPEAL DECISION

Date: flAY 2J 2003

In re:

Lira, H-36693 Pelican Bay State Prison P.O. Box 7000 Crescent City, CA 95531-7000

lAB Case No.: 0209553

Local Log No.: PBSP 02-03100

This matter was reviewed on behalf of the Director of the California Department of Corrections (CDC) by Appeals Examiner l Pearson, Facility Captain. All submitted documentation and supporting arguments of the parties have been considered.
1 APPELLANT'S ARGUMENT: It is the appellant's position that he should be housed in a general inmate population placement. The appellant is requesting to have his case reviewed and to be released to the general inmate population with access to a work furlough program.
II SECOND LEVEL'S ARGUMENT: It is staff's position that the appellant is validated as an associate of the Northern Structure (NS) prison gang. The Institution Classification Committee reviewed the appellant's case on October 16, 2002, and determined the validation and Security Housing Unit (SHU) indeterminate placement to be appropriate. The Classification Staff Representative reviewed the appellant's case and reendorsed the appellant for retention in the SHU as he found that the appellant remains a threat to the safety and security of the institution.
III DIRECTOR'S LEVEL DECISION: Appeal is denied.
A. FINDINGS: The appellant is housed in facility, which is commensurate with his case factors. The appellant's case factors as delineated on CDC Form I 28-G, Classification Chrono, include his association with a prison gang. The appellant's placement is appropriate and in accord with the primary objectives of the correctional institutions which are to protect the public by safely keeping person committed to the custody of the Director of Conections, and to afford such persons with every reasonable opportunity and encouragement to pruticipate in rehabilitative activities. Consistent effort is being made to insure the security of the institution and the effectiveness of the treatment programs within the framework of security and safety. The requirement of custodial security and of staff, inmate and public safety must take precedence over all other considerations in the operation of all the programs and activities of the institutions of the department. No relief shall be afforded to the appellant at the Director's Level ofReview.
B. BASIS FOR THE DECISION: California Code of Regulations, Title I5, Section: 3270, 3341.5, 3375
C. ORDER: No changes or modifications are required by the institution.
This decision exhausts the administrative remedy available to the appellant within CDC.
Lt..~
N. GRANNIS, Chief Inmate Appeals Branch
cc: Warden, PBSP Appeals Coordinator, PBSP

 
 Case 3:00-cv-00905-SI Document 115 Filed 01/08/2007 Page 1 of 6

United States District Court
For the Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 ERNESTO G. LIRA,

No. C 00-905 SI

9 10 v.

Plaintiff,

ORDER DENYING DEFENDANT MANN’S MOTION TO DISMISS

11 DIRECTOR OF CORRECTIONS OF THE

STATE OF CALIFORNIA, et al., 12

Defendants.

13

/

14 Defendant Karen Mann has filed a motion to dismiss based on insufficiency of service of
15 process, which is currently set for a hearing on January 12, 2007. Pursuant to Civil Local Rule 7-1(b),
16 the Court determines the matter is appropriate for resolution without oral argument, and VACATES the
17 hearing. For the reasons set forth below, the Court DENIES the motion.
18

19 BACKGROUND
20 On March 14, 2000, plaintiff Ernesto Lira, acting in pro per, filed his original complaint in this
21 case. Plaintiff alleged that his due process rights were violated in connection with his gang validation
22 process and his continued retention in Administrative Segregation. On January 22, 2001, the Court
23 issued an Order of Service, finding plaintiff’s complaint stated a cognizable claim for relief and ordering
24 the U.S. Marshals Service to serve eighteen defendants, including defendant Mann.
25 On February 26, 2001, the Litigation Coordinator at Duel Vocational Institution (DVI) did not
26 accept service for Mann because Mann no longer worked at that institution. Wolff Decl., Ex. A. On
27
June 21, 2001, the U.S. Marshals Service filed a return of service with the Court stating that service was 28

Case 3:00-cv-00905-SI Document 115 Filed 01/08/2007 Page 2 of 6

United States District Court
For the Northern District of California

1 refused by DVI with respect to Mann, that the Service had learned that Mann was now working for the

2 Parole Office in Region I located in Sacramento, California, and that the complaint was mailed to this 3 address on March 5, 2001. Feudale Decl. Ex. B; Docket No. 29.1 The return also stated, “[n]o 4 acknowledgment received as of 6/20/01.” Id.2

5

Defendants filed an answer to the complaint on October 24, 2001. The answer stated that Mann

6 had not been served, and that no appearance was made on her behalf. On October 30, 2001, plaintiff

7 sent a letter to the Court seeking clarification of the status of Mann’s service. He wrote:

8

In the answer, page 1, footnote 1, Defendants aver that Defendant K. Mann has not yet

been served, nor requested representation, and no appearance is made on behalf of

9

Defendant. On page 6 of Defendants’ answer they deny allegations against[] Defendant

K. Mann. I am confused, so please answer the following questions. #1. What efforts

10

should I take in order that Defendant K. Mann can be served and represented – please

note that I have no access to a phone or any assistance with my cause . . . #2. Can I

11

request that the first defendants provide me with present location of Defendant K. Mann

in order to serve her? 12

Chapman Decl. Ex. A; Docket No. 38. Plaintiff sent another letter on December 5, 2001, advising the 13

Court of the address at which he believed Mann could be served, and repeating his request for guidance: 14

Your Honor a Defendant in my ongoing action before this Court has not been served with

15

my complaint and/or civil action against her. Her name is Mrs. K. Mann and to my

knowledge her present address is: 16

Parole Region One

17

9825 Goethe Rd. Suite 200

Sacramento, Cal. 95827

18

What do I do? Do I provide this address to the Defendant[’s] attorney? Do I again serve

19

her with a complaint and summons? Do I forward this above address to the U.S.

Marshals Service? . . . [P]lease advi[s]e me how I may proceed and serve Defendant K.

20

Mann.

21 Id., Ex. B; Docket No. 45.

22

In February 2002, plaintiff communicated with Mann directly, informing her that she needed to

23 contact defendants’ counsel at the Attorney General’s Office, and enclosing a copy of a declaration and

24

25
1 Mann’s motion papers do not state whether she received that complaint. 26
2 The court docket entry incorrectly states that service had been effected upon Mann. See Docket 27 No. 29. Although plaintiff emphasizes this fact and states that, as a result of this docket entry, he had
“every reason to believe that the Marshals had effected sufficient service on Mann,” plaintiff has not 28 submitted a declaration stating that he actually relied on this docket entry.

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1 a set of interrogatories. Mann acknowledges that she received this letter. See Def’s Motion at 2; Wolff

2 Decl., Ex. B. Plaintiff’s letter stated, inter alia,

3

It took me some time to get your address. I had to get at your boss man E. Alameida Jr.

Who is now the Director of Corrections, que no?

4

Check it out Mrs. K. Mann. You need to contact the attorney who is represented in this

5

civil action as your attorney. His name is Mr. Jonathan L. Wolff, and his number is (415-

703-1113).

6

Wolff Decl. Ex. B. Plaintiff and defendants’ counsel then exchanged letters about Mann’s status. Id.

7

at Ex. C-E. A letter dated March 8, 2002, from defendants’ counsel to plaintiff stated:

8

To our knowledge, Ms. Mann has not been served in this case. In order for her to be

9

properly served, you should request that the U.S. Marshal’s office serve her pursuant to

Rule 4 of the Federal Rules of Civil Procedure. For your information, Ms. Mann may

10

be served c/o Litigation Coordinator, Parole Region II, 1515 Clay Street, 10th Floor,

Oakland, CA 94612. Only after Ms. Mann has been properly served may discovery be

11

propounded upon her.

12 Id., Ex. E. On May 16, 2002, plaintiff submitted a request with the U.S. Marshals Service asking the

13 Marshals to serve Mann at the address listed in the March 8, 2002 letter. See Chapman Decl. Ex. C;

14 Docket No. 64.

15

The next day, on May 17, 2002, the Court granted defendants’ motion for summary judgment,

16 concluding that plaintiff’s complaint contained both exhausted and unexhausted claims, and that the

17 Prison Litigation Reform Act mandated dismissal under such circumstances. Presumably because of

18 the summary judgment order, the U.S. Marshals Service never served Mann as requested in plaintiff’s

19 May 16, 2002 letter.

20

Plaintiff appealed the summary judgment order, and the Ninth Circuit reversed. The case was

21 remanded to this Court on December 28, 2005. Now represented by counsel, on June 28, 2006, plaintiff

22 moved to correct and amend his complaint pursuant to the Ninth Circuit’s mandate. By order filed

23 August 29, 2006, the Court granted plaintiff’s motion and deemed his amended complaint filed. On

24 October 2, 2006, a summons was issued as to Mann, and she was served with the summons and amended

25 complaint on October 3, 2006.

26

27

DISCUSSION

28

Mann moves to dismiss the complaint for insufficiency of service of process, contending that

3

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United States District Court
For the Northern District of California

1 plaintiff never served her with the original complaint, and thus that she should be dismissed from this

2 action. Rule 4(m) of the Federal Rules of Civil Procedure authorizes the dismissal of an action if service

3 of the summons and complaint is not effected within 120 days after the filing of the complaint. Rule

4 4 also provides “that if the plaintiff shows good cause for the failure, the court shall extend the time for

5 service for an appropriate period.” Fed. R. Civ. P. 4(m). “At a minimum, ‘good cause’ means excusable

6 neglect. A plaintiff may also be required to show the following: (a) the party to be served personally

7 received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would

8 be severely prejudiced if his complaint were dismissed.” Boudette v. Barnette, 923 F.2d 754, 756 (9th

9 Cir. 1991). “The current rule requires a district court to grant an extension of time if good cause is

10 shown, and permits the district court to grant such an extension even absent good cause.” Mann v Am.

11 Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003).

12

The Court concludes that there was good cause for the failure to serve Mann with the original

13 complaint, and finds Puett v. Blandford, 912 F.2d 270 (9th Cir. 1990), instructive. In Puett, the Ninth

14 Circuit held a district court abused its discretion in dismissing a complaint for failure to timely serve,

15 finding that the plaintiff had demonstrated good cause for the failure to serve because he

16 “conscientiously took numerous steps to ensure that the defendants would be served,” and the Marshals

17 Service did not effect proper service. Id. at 275. “[A]n incarcerated pro se plaintiff proceeding in forma

18 pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint, and, having

19 provided the necessary information to help effectuate service, plaintiff should not be penalized by having

20 his or her action dismissed for failure to effect service where the U.S. Marshal or the court clerk has

21 failed to perform the duties required of each of them under 28 U.S.C. § 1915(c) and Rule 4 of the

22 Federal Rules of Civil Procedure.” Id.

23

Here, the record shows that the U.S. Marshals Service first attempted to serve Mann in February

24 2001 at DVI, and again at a different address after determining that Mann had relocated to the Region

25 I Parole Office in Sacramento, California. There is no indication in the record whether the U.S.

26 Marshals Service further attempted service, despite the notation on the June 2001 return of service that

27 they had not received an acknowledgment of service as of June 22, 2001. Once defendants filed an

28 answer in October 2001 stating that Mann had not been served, plaintiff promptly acted to cure the

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United States District Court
For the Northern District of California

1 deficiency in service. Plaintiff immediately sent a letter to the Court seeking clarification and assistance

2 with serving Mann. Plaintiff sent another letter to the Court on December 5, 2001, providing what he

3 believed was Mann’s new work address at the Region I Parole Office in Sacramento. Plaintiff continued

4 to take steps regarding service of Mann, communicating with her directly in February 2002, and then

5 corresponding with defendants’ counsel about how to effect service on Mann. Defense counsel advised

6 plaintiff to request a renewed service attempt by the U.S. Marshals Service, and provided plaintiff with

7 the correct address for Mann. Plaintiff followed that advice and requested renewed service by letter

8 lodged May 16, 2002. Service was never effected, presumably due to the Court’s May 17, 2002 order

9 granting summary judgment in favor of defendants. Plaintiff has established good cause to excuse the

10 failure to timely serve Mann with the original complaint because he acted diligently to cure the

11 deficiencies in service.

12

The Court further finds that the other factors mentioned in Boudette weigh in favor of excusing

13 the service deficiency. Mann does not deny that she received actual notice of the lawsuit by plaintiff’s

14 February 5, 2002 letter to her, and the record is unclear as to whether Mann received the complaint that

15 the U.S. Marshals Service mailed to her at the Sacramento office in March 2001.

16

Relatedly, the Court finds that Mann will not be prejudiced from the failure to serve the original

17 complaint. Mann asserts that she will be prejudiced because the events giving rise to plaintiff’s

18 complaint occurred in 1996, and thus “it is likely that her memory with respect to many of the allegations

19 against her has faded.” Reply at 7. However, because Mann had actual notice of the lawsuit no later

20 than February 2002, she could have taken steps at that time to preserve her memories of the events at

21 issue. Moreover, the passage of time in this case is due largely to the appeal of the summary judgment

22 order, and all defendants will face this same difficulty of fading memories.

23

Plaintiff would also be severely prejudiced if defendant Mann’s motion to dismiss was granted

24 because the claims against Mann would likely be time-barred. See Fed. R. Civ. P. 4(m) Adv. Comm.

25 Notes (1993) (“Relief may be justified, for example, if the applicable statute of limitations would bar

26 the refiled action . . .”); see also Mann, 324 F.3d at 1090 (discussing Rule 4(m) and 1993 Advisory

27 Committee Notes quoted supra).

28

Finally, the Court notes that even if plaintiff had not established good cause under Rule 4(m),

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United States District Court
For the Northern District of California

1 the Court would exercise its discretion to extend the time to serve Mann past the 120-day deadline.

2 Plaintiff has been incarcerated in Administrative Segregation during the pendency of this lawsuit, and

3 was acting pro se for much of this litigation. The record reflects some degree of confusion as to Mann’s

4 location and proper address for service. Once alerted to the deficiency in service on Mann, plaintiff took

5 a number of steps to cure the deficiency, including directly contacting Mann and corresponding with

6 defendants’ counsel, and requesting that the U.S. Marshals Service re-serve Mann.

7

8

CONCLUSION

9

For the foregoing reasons, the Court hereby DENIES defendant Mann’s motion to dismiss.

10 (Docket No. 107).

11

IT IS SO ORDERED.

12

13 Dated: January 8, 2007 14

SUSAN ILLSTON United States District Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

 
 Lira v. Director of Corrections

2008 WL 619017 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Ernesto LIRA, Plaintiff, v.
DIRECTOR OF CORRECTIONS, et. al., Defendants.
No. C-00-0905 SI. |
March 4, 2008.
Attorneys and Law Firms
William B. Chapman, Mark Andrew White, Chapman, Popik & White LLP, San Francisco, CA, for Plaintiff.
Scott John Feudale, California Attorney General‘s Office, San Francisco, CA.
Danielle Felice O’Bannon, Attorney General’s Office, San Francisco, CA, for Defendants.
ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
SUSAN ILLSTON, District Judge.
*1 On February 29, 2008, the Court held a hearing on defendants’ motion for summary judgment. After consideration of the parties’ papers and arguments, the Court DENIES defendants’ motion in part and GRANTS in part.
BACKGROUND
I. Procedural background This case returns to the Court after remand. Plaintiff Ernesto Lira filed this originally pro se suit under 42 U.S.C. § 1983 challenging his placement in administrative segregation (“Ad Seg”) while at Deuel Vocation Institute (“DVI”), and later in a Special Housing Unit (“SHU”) at

Pelican Bay Prison. Prison officials placed Lira in Ad Seg and the SHU because he was “validated” as an associate of the Northern Structure prison gang. Lira alleges that his due process rights were violated because there was not sufficient, reliable evidence to support this “validation,” and because he was denied meaningful opportunities to challenge the validation.
In an order filed in May 2002, this Court granted defendants’ motion for summary judgment on the ground that the sole remaining cause of action encompassed both a fully exhausted claim and some unexhausted claims. This Court noted that it was undisputed that Lira had only exhausted administrative remedies with respect to a 1996 grievance, and that the 1996 grievance “was limited to his placement in ad seg” and “did not challenge the propriety of any of the periodic reviews that occurred after the grievance was filed.” May 15, 2002 Order at 5-6. This Court concluded that Lira failed to meet the exhaustion requirement of 42 U.S.C. § 1997e(a), and dismissed the case without prejudice.
The Ninth Circuit reversed and remanded, holding that § 1997e(a) did not require dismissal of an entire action where a prisoner’s complaint contains exhausted and unexhausted claims. See Lira v. Herrera, 427 F.3d 1164 (9th Cir.2005). Instead, the Ninth Circuit instructed that the proper treatment of a “mixed” complaint depends on the relatedness of the claims. If the exhausted and unexhausted claims are interrelated, the district court should dismiss the complaint and allow the plaintiff the opportunity to amend the complaint to excise the unexhausted claims; if the claims are not interrelated, the court should dismiss the unexhausted claims and allow the case to proceed.
With respect to Lira’s case, the Ninth Circuit stated:
The district court’s dismissal of Lira’s case turned on its implicit, but not fully discussed, interpretation of Lira’s complaint as presenting multiple claims regarding his validation as a Northern Structure gang member. It correlated the number of grievances filed within the California prison system with the number of claims within his complaint, and therefore did not regard his complaint as presenting a single due process claim challenging the unavailability of the evidence used against him
1

Lira v. Director of Corrections
and resulting in his placement and retention in administrative segregation.
The Ninth Circuit noted that Lira, now represented by counsel, challenged “a constellation of due process violations for his validation as a gang associate and his placement and retention in the administrative segregation at [DVI] and the SHU at Pelican Bay” that amounted to a single, exhausted claim. Id. at 1177 (emphasis in original). The Ninth Circuit noted that “[a]lthough there is force to Lira’s argument, we leave it to the district court to consider this new characterization of Lira’s due process claim in the first instance.” Id. at n. 13.
*2 On remand, the Court granted plaintiff’s motion to file a first amended complaint that alleged a single due process claim challenging his validation as a gang associate and his placement and retention in ad seg and the SHU-essentially, the “constellation” of due process violations referred to in the Ninth Circuit’s decision.
II. Factual background Plaintiff is currently a parolee under the custody of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff is scheduled to be discharged from CDCR’s custody on March 9, 2008. It is undisputed that plaintiff was validated as a member of the Northern Structure prison gang in 1993 while he was out on parole. The parties dispute whether plaintiff was notified and/or interviewed in connection with the initial gang validation; plaintiff states that he was never notified of defendants’ investigation into his alleged gang affiliation, and that the first time he learned of his gang validation was in 1995 when he returned to prison after a parole violation (and subsequent conviction).
A. Initial gang validation in 1993 at Sierra Conservation Center In 1991, plaintiff was convicted for petty theft and received a two year sentence. On August 13, 1992, plaintiff was incarcerated within the CDCR at Sierra Conservation Center. Defendants state that while plaintiff was housed at Sierra, “Assistant Institutional Gang Investigator Smith received notification and supporting documentation that plaintiff was associated with the Northern Structure Prison gang.” Motion at 3-4. At their deposition, neither Smith nor Smith’s supervisor, Institutional Gang Investigator (“IGI”) Covello, could remember what supporting documentation Smith received. Feudale Decl., Ex. C. at 39:10; White Decl., Ex.

FF at 12:5. Covello testified that if documentation was sent, “it would have to either be a 128 of some sort, or it could have been a confidential report with no other corroboration.” Feudale Decl. Ex. C at 39:11-14. Based on that information, Smith began investigating plaintiff’s potential involvement in the Northern Structure prison gang.
In the course of that investigation, Smith found three pieces of evidence that were used to validate plaintiff as a gang member: (1) a drawing found in plaintiff’s locker at Sierra; (2) an April 24, 1992 incident report describing an incident with plaintiff and several Merced County Jail inmates identified as “Surenos”; and (3) a September 25, 1992 debriefing report in which a confidential informant lists plaintiff as an active associate of the Northern Structure gang. On April 4, 2000, during a review of plaintiff’s gang associate status, a fourth piece of evidence was added to plaintiff’s central file-a confidential debriefing report dated April 1, 1998 which identified plaintiff as engaging in gang activity within the past six years. Each of these pieces of evidence, and plaintiff’s challenge to the evidence, is discussed below.
(1) Drawing *3 As part of his investigation, Smith spoke with Officer Gordon and requested that he search plaintiff’s locker. Officer Gordon searched plaintiff’s locker and discovered a drawing with many illustrations on it. Feudale Decl. Ex. F. Gordon testified in his deposition that after the search, plaintiff confronted Gordon about the search, admitted to creating the drawing, and asked for its return. Gordon Depo. 28:14-24; 56:25-57:5. However, plaintiff disputes that he admitted to drawing the picture, and has submitted evidence that the drawing was created by another inmate.
After Gordon gave the drawing to Smith, Smith told Gordon that the drawing contained several gang symbols, notably the number “14” and the “Northern Star,” as well as the name “Chino,” which defendants assert is plaintiff’s moniker. According to defendants, the Northern Star, the number “14,” and the “Huelga bird,” which is also contained in the drawing, have been identified by numerous gang investigators and gang experts within the CDCR as being associated with the Northern Structure prison gang.
Plaintiff challenges the use of the drawing as evidence of his gang affiliation. Plaintiff notes that during the course of discovery, the drawing was shown to numerous CDCR personnel, including a number of professed gang experts, and that few could find the number “14” unaided, no one could find the “Northern Star,” and several were able to
2

Lira v. Director of Corrections
point out the Huelga bird, but admitted that it is a common symbol in Hispanic culture and has been used as an insignia for such groups as the United Farm Workers. Plaintiff has also submitted the declaration of inmate Freddie Leyba in which Leyba confirms that he made the drawing. White Decl. Ex. B. Leyba describes the drawing as just sketches of some thoughts and asserts that he “did not intend to put any prison gang symbols in the drawing.” Id. Leyba states that the number “14” the picture was “just intended to mean Norteno, a Northern Hispanic, which is what I was an am,” and that “there is no Northern Star in the drawing.” Id. Leyba also states that he made the drawing before he met plaintiff, and thus the supposed reference to “Chino” in the drawing could not refer to plaintiff. Id.
(2) April 24, 1992 jail yard incident report The second piece of evidence used to validate plaintiff is a report concerning an incident on April 24, 1992 involving plaintiff in the yard of the Merced County Jail when plaintiff was housed there. As part of his investigation, Smith contacted Officer Romero of the Merced County Sheriff’s Department to determine if Merced County had any evidence of plaintiff’s gang activity. Officer Romero provided Smith with a “late entry” typed incident report, dated April 13, 1993, recounting the events that occurred on April 24, 1992. The typed incident report states, inter alia:
AT THE PRESENT TIME AND CURRENTLY, 3 BLOCK HOUSES THE MAJORITY OF NORTHERN STRUCTURE, NUESTRA FAMILIA AND LOCAL NORTHERN HISPANIC STREET GANG MEMBERS. AS 3 BLOCK CAME INTO THE YARD THE FOLLOWING GANG MEMBERS GROUPED TOGETHER AND STARTED TO SCAN THE YARD. THE INMATES WERE, LIRA, ERNESTO GEORGE, AKA “CHINO,” DOB 010664 CDC # C60918 NORTENO, M 14 ASSOCIATE/NORTHERN STRUCTURE MEMBER AND NF ASSOCIATE, MORALES, JUAN AKA “PULGA” DOB 021866 CDC # 002845 [and other individuals]
*4 THESE INMATES GATHERED TOGETHER AND STARTED TO GO OVER TO PAMONA 13 [and other individuals]. AS I SEEN THEM STARTING TO WALK TOWARDS THEM I CALLED OTHERS [sic] OFFICERS THE YARD FOR A POSSIBLE GANG FIGHT. BY THE TIME THE OFFICERS ENTERED THE YARD, THE NORTHERN GANG MEMBERS WERE HUDDLED AROUND THE SOUTHERN GANG MEMBERS WITH CLINCHED FIST, QUESTIONING THEM

ABOUT THEIR TATTOOS AND WHERE THEY’RE FROM. THE TWO MAIN INMATES THAT WERE DOING THE MOST QUESTIONING AND INTIMIDATING WERE MORALES ... AND LIRA.... THE OFFICERS BROKE UP THE CROWD AND TOOK THE TWO “SURENOS” OFF THE YARD. LIRA THEN LOOKED UP AT ME AND SAID “COME ON ROMERO, ALL WE WANTED TO DO WAS PLAY WITH THEM A LITTLE WHILE. YOU KNOW WHEN WE GO TO THE ‘PEN’ THEY (MEANING SURENOS) RUSH U.S. FROM THE GATE.”
White Decl. Ex. C. Defendants state that numerous gang investigators and high ranking prison administrators have relied on this report as indicating plaintiff’s gang activity.
Plaintiff argues that the report is unreliable for numerous reasons. First, plaintiff notes that the typed report was prepared a year after the incident, and specifically in response to Smith’s request for any gang-related information related to plaintiff. In contrast, a handwritten report prepared by Romero the day after the incident is significantly different, and less detailed. The original handwritten report lists Lira as one of eight inmates involved in the incident, and states, in relevant part,
The larger group of “Nortenos” gathered on the East side of the yard, all of them staring at the “Surenos” on the West side of the yard. At this time Hernandez & Morales started to tie their shoes, that’s when I knew something was going to go down. They all then started walking toward the “Surenos” looking at me and then at the “Surenos.” I got on the radio and called the officers back to the yard for a possible Group 415. By the time the officers got to the yard, the “Nortenos” were in the “Surenos” face with clinched fist. The officers broke up the crowd and I directed them to remove the “Surenos” off of the yard.
Id. The handwritten report does not record any statements made by plaintiff to Officer Romero.
After he learned he was validated, plaintiff secured a letter dated March 8, 1998 from Officer Romero to CDCR which states,
3

Lira v. Director of Corrections

IN CHECKING WITH THE

CLASSIFICATION

DEPARTMENT, WE CANNOT

FIND ANY GANG VALIDATION

ON ERNESTO LIRA IN

MERCED COUNTY JAIL. LIRA

IS ALWAYS HOUSED IN

GENERAL POPULATION WITH

OTHER

NORTHERN

HISPANICS, WHICH IS THE

MAJORITY OF OUR JAIL. I

HOPE THIS LETTER WILL

HELP

CLARIFY

ANY

MISUNDERSTANDING THAT

YOU MIGHT HAVE.

Id. Ex. D. Plaintiff submitted this letter in the course of his administrative challenges to his gang validation, but as set forth below, plaintiff’s gang validation was never rescinded.

Finally, both sides have submitted competing declarations from Officer Romero regarding the April 24, 1992 incident. The declaration submitted by plaintiff states, inter alia, that up through April 24, 1992, Merced County did not have any evidence that plaintiff was a prison gang member or associate and that plaintiff was a Norteno (an inmate of Mexican heritage from Northern California) and housed with all Nortenos, whether or not they were members or associates of any street gangs, any prison gangs, or were just Mexicans from Northern California. October 5, 2007 Romero Decl. ¶¶ 2-8 (White Decl. Ex. E). Romero’s October 5, 2007 declaration also states that Romero did not see Lira do anything that indicated he was trying to instigate a fight, and that Romero “couldn’t say that Lira was trying to start trouble [and] can’t say that Lira was a problem maker at that incident.” Id. ¶¶ 16, 18. Romero further states “I didn’t think Lira was a gang banger. That’s why I agreed to write my March 8, 1998 letter.” Id. Romero also states that “I think the CDC officers may have misconstrued the information in my April 13, 1993 typewritten report. The identifying comments about Lira, starting on line 8 of paragraph 2, end with the words “M-14 associate,” followed by the diagonal slash mark. M-14 is a street gang in Merced.” Id. at ¶ 31.

*5 The declaration submitted by defendants states, inter alia, that on the day of the incident in question, “[t]he two inmates who I observed doing the most questioning and intimidating were Mr. Lira and Juan Morales, a validated Northern Structure prison gang member.” February 14, 2008 Romero Decl. ¶ 4. This declaration repeats the statement that Lira allegedly made to Romero (as stated in

the April 1993 typewritten report). Id. ¶ 6. Romero also states that his October 5, 2007 declaration “was not intended to disavow or deny any of my observations on April 24, 1992. I still believe that Mr. Lira’s actions on April 24, 1992 in associating with validated gang members, questioning and intimidating South Hispanic gang members, and making the statement he made to me were indicative of gang activity.” Id. ¶ 9.
(3) September 25, 1992 debriefing report of confidential informant Smith also received a debriefing report dated September 25, 1992. Feudale Decl. Ex. N. In the debriefing report, a confidential informant who purportedly wanted to leave the Northern Structure gang identifies plaintiff on a list of active associates and members of the Northern Structure. Id. at 11. The twelve-page long report contains numerous details about the Northern Structure gang and various supposed gang members, but does not contain any information about plaintiff aside from including his name on a list of individuals and their gang status. Defendants state that the report is reliable because members of the Northern Structure are required to memorize information about inmates in good and bad standing with the gang. Defendants also argue that the report is reliable because the informant incriminated himself in providing the information, some of the information provided had already proven to be true at the time the report was prepared, and part of the information provided had been previously supplied by an independent source. Id.
Plaintiff argues that the report is not reliable because it does not contain any information about Lira aside from his inclusion on a “laundry list” of gang associates. Plaintiff notes that because of the inherent unreliability of such “laundry lists,” in 2005 the CDCR amended its regulations governing prison gang validation and discontinued using such lists for validation. While the amended regulations are prospective in effect, plaintiff argues that nevertheless the amendment shows that the debriefing report is inherently unreliable. Furthermore, because inmates are not given their Miranda warnings before being debriefed, plaintiff contends that selfincrimination would not even be a possibility.
(4) April 1, 1998 confidential inmate debriefing report In April 2000, defendant Fielder reviewed plaintiff’s gang validation status. Fielder noted that a confidential debriefing report dated April 1, 1998 was placed in plaintiff’s file. The report identifies plaintiff as engaging in gang activity, including assaulting his cellmate for
4

Lira v. Director of Corrections
gang-related reasons and sending a threatening letter to the informant’s mother. Feudale Decl. Ex. I I. Defendants argue that this report is reliable for the reasons set forth in Robert Marquez’s declaration, filed under seal. In addition, the informant had previously provided information which proved to be true, other confidential sources had independently provided the same information, the informant incriminated himself in providing the information, and some of the information provided had already proven to be true at the time the report was prepared.
*6 Plaintiff argues that the report is unreliable because it does not name the inmate plaintiff allegedly assaulted or provide the date or time frame of the assault. Pelican Bay SHU cellblock activity logs for October 7, 1997, include a reference to plaintiff fighting with a newly assigned cellmate, Anthony Ramirez. White Decl. Ex. H. However, other CDCR records reveal that no assault occurred on that occasion. Plaintiff asserts that Ramirez, who has a history of behavioral problems in prior cellmate assignments, began acting erratically and threatened to damage plaintiff’s possessions, and when plaintiff complained to the guards, Ramirez was led away. Plaintiff notes that a form 115 disciplinary report was generated over the incident,1 but that the report reflects no evidence of physical violence or disciplinary violation cited against plaintiff. Furthermore, plaintiff argues that it is implausible that he mailed a threatening letter from prison because inmate mail at Pelican Bay was closely screened for gang-related communications at the time plaintiff allegedly sent the threatening letter.
After receiving the first three documents described above, Smith prepared a “gang validation package” containing these documents for review by IGI Covello. Covello reviewed the package and determined that it met the criteria required for submission to the Special Services Unit in Sacramento. Neither Smith nor Covello remembers speaking with plaintiff regarding his validation prior to submitting the validation package for review with the Special Services Unit. Plaintiff states he was never told by anyone that he was being investigated. Covello testified in his deposition that inmates were routinely interviewed prior to the submission of their gang validation package. However, he could not recall if Lira had been interviewed and there is no evidence in the record that plaintiff was afforded such opportunity.
On May 14, 1993, plaintiff was released on parole. On June 22, 1993, the gang validation package was received by the Special Services Unit for review. Defendant Olson, a Special Agent in the Special Services Unit, determined that the validation package was sufficient to meet the

Departmental validation requirements, and validated plaintiff as an associate of the Northern Structure prison gang.
B. Review of plaintiff’s gang validation at Deuel Vocational Institution, 1995-1996 On February 25, 1995, plaintiff was arrested for violating provisions of the California Health and Safety Code. Feudale Decl. Ex. Q. On March 29, 1996, plaintiff was found guilty and sentenced to a prison term of eleven years for violating Health and Safety Code Sections 11379 (sale/transportation of controlled substances) and 11377(a) (possession of controlled substances). Id. Ex. R. On October 31, 1995, after his arrest but before his conviction, plaintiff’s parole was revoked and he was sent to the Deuel Vocational Institution’s reception center. Id. Ex. B. On December 27, 1995, defendant Olmstead received information from defendant Fielder of the Investigative Services Unit at Deuel that plaintiff was a validated associate of the Northern Structure prison gang. Fielder Decl. ¶ 5; Olmstead Decl. ¶ 5(a).
*7 On December 28, 1995, defendant Herrera provided plaintiff with an “Order for Hearing and Placement in Segregated Housing” (CDCR Form 114-D). Herrera Decl. Ex. A. The order notified plaintiff that he was being retained in Ad Seg because he was a validated associate of the Northern Structure prison gang and his presence in the general population was “a threat to the safety of staff and inmates alike, and to the security of the facility.” Id. Plaintiff states that this was when he first learned that he had been validated as a Northern Structure gang associate.
On January 4, 1996, plaintiff appeared before the Deuel Vocational Institution Institutional Classification Committee (ICC) for a review of his placement in Ad Seg. The hearing included defendants Alameida, Busser and Chavez. Plaintiff voiced his concern over having been validated as a gang associate and asked to see the evidence used to validate him. Defendants say they informed plaintiff of the reasons he was placed in Ad Seg, but they did not have his Central File. Because the committee did not have plaintiff’s Central File to review at the time of the hearing, the ICC elected to retain plaintiff in Ad Seg pending receipt of his file to review for evidence of prison gang membership.
On February 8, 1996, the ICC, comprised of defendants Chavez, Busser and Schmidt, conducted a thirty-day review of plaintiff’s placement in Ad Seg. Plaintiff was not present at the hearing because he was in Merced County for unrelated court proceedings. The ICC decided to retain plaintiff in Ad Seg because “information had
5

Lira v. Director of Corrections
been received that plaintiff was a validated associate of the Northern Structure.” On February 29, 1996, plaintiff returned to Deuel following his court appearance in Merced County. Plaintiff was provided with an “Order for Hearing and Placement in Segregated Housing” which, like the previous Order, informed plaintiff that he was retained in Ad Seg because prison records indicated that he was a validated associate of the Northern Structure prison gang.
On March 7, 1996, April 4, 1996, June 27, 1996, July 15, 1996, and August 22, 1996, plaintiff appeared before the ICC for thirty-day reviews of his Ad Seg placement. The committees included defendants Chavez, Busser, Schmidt, Mann and Pizzella. At each hearing, the ICC decided to retain plaintiff in Ad Seg due to his validation as a gang associate.
Plaintiff asserts that at the March 7, 1996 hearing, plaintiff presented a CDCR form 602 inmate appeal, in which he requested the evidence supporting his validation. No action was ever taken on plaintiff’s appeal, and CDCR later told him they had to record of it. In June of 1996 plaintiff’s Central File arrived at DVI and he was shown summary descriptions2 of the evidence used to validate him. On July 29, 1996, plaintiff filed another 602 appeal. He was interviewed by defendant Darlene Best (now Pizzella) regarding his appeal about a month later. Best denied his appeal on the ground that “staff believe[d] [he was] an associate member of this prison gang.” White Decl. Ex. W. On September 4, 1996, Olson re-validated plaintiff as a gang associate using the first three abovementioned pieces of evidence. On September 23, 1996, plaintiff was transferred to Pelican Bay SHU, where he spent the next eight years.
C. Review of plaintiff’s gang validation at Pelican Bay 1996-2004 *8 While at Pelican Bay, plaintiff appeared before Unit Classification Committees every 180 days. On April 4, 1998, plaintiff submitted another inmate appeal challenging the items used to validate him. Feudale Decl. Ex. AA. In this inmate appeal, plaintiff attached the letter drafted by Officer Romero, which stated that Merced County Jail authorities did not have any evidence that plaintiff was a gang member. Officer Piland was assigned to review the appeal, and after guidance from SSU in Sacramento, Piland denied plaintiff’s appeal at the first level. Plaintiff renewed his appeal at the Warden’s level and was again denied. White Decl. Ex. X.

LEGAL STANDARD
Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In a motion for summary judgment, “[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial.” See T.W. Elec. Service, Inc., v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the non-moving party. See T.W. Elec. Service, Inc., 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The evidence presented by the parties must be admissible. See Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).
DISCUSSION
I. Liberty interest and due process A liberty interest may arise from either of two sources: the due process clause itself or state law. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), rejected on other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). State law creates a liberty interest if it substantively limits official discretion by establishing particularized standards or criteria that govern state decision-makers. Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). The liberty interest at issue here is the interest of prisoners in remaining in the general prison population and not being confined in a security housing unit. In Toussaint v. McCarthy, 801 F.2d 1080, 1097-98 (9th Cir.1986), the Ninth Circuit held that
6

Lira v. Director of Corrections
sections 3335(a) 3336, and 3339(a) of Title 15 of the California Code of Regulations, taken together, create a constitutionally protected liberty interest to be free from placement in Ad Seg. Because confinement in segregated housing may implicate a liberty interest, prisoners must be provided the procedural due process required by the Constitution before confinement. See Madrid v. Gomez, 889 F.Supp. 1146, 1271 (N.D.Cal.1995).
*9 A prison inmate who is investigated and confined to Ad Seg on account of validation in a prison gang is entitled to minimal procedural protections: (1) an opportunity to present his views to the IGI when he is under investigation, before the validation is confirmed; (2) an informal non-adversarial hearing within a reasonable time after segregation; (3) notice of the charges or reasons for segregation; and (4) a meaningful opportunity to present his views during post-validation reviews. See Toussaint, 801 F.2d at 1100; see also Guizar v. Woodford, 2007 WL 951294 (N.D.Cal. Mar.27, 2007); Jones v. Gomez, 1993 WL 341282 (N.D.Cal. Aug.23, 1993).
Due process also requires prison officials to have an evidentiary basis for their decisions to confine an inmate to a security housing unit, whether the purpose of that segregation is disciplinary or administrative. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). In order to validate an inmate as a prison gang member, CDC regulations require that IGIs identify at least three “original, independent source items of documentation indicative of association with VALIDATED gang members and/or associates.”3 DOM § 55070.19.3. (emphasis in original); Madrid, 889 F.Supp. at 1242. Once the IGI believes there is sufficient documentation to validate an inmate, the IGI prepares a “validation package” for submission to the Special Services Unit in Sacramento for review. Id. Due process requires that such decisions be supported by “some evidence.” Id.; Toussaint, 801 F.2d at 1103-06. This standard is only “minimally stringent,” and the relevant inquiry is whether there is any evidence in the record that could support the conclusion reached by the prison decision-makers. Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.1987).
Furthermore, the Ninth Circuit has held that, in the context of prison disciplinary proceedings, the information relied upon must also have at least “some indicia of reliability.” Id. at 705 (citing Mendoza v. Miller, 779 F.2d 1287, 1295 (7th Cir.1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2251, 90 L.Ed.2d 697 (1986)). A number of district courts have since applied the “some indicia of reliability” standard to decisions regarding

placement in Ad Seg. See Tapia v. Alameida, 2006 WL 842470, at *9 (E.D.Cal. Mar.29, 2006); Jones v. Gomez, 1993 WL 341282, at *3 (N.D.Cal. Aug.23, 1993); Madrid, 889 F.Supp. at 1273. This Court agrees 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.

A. Some reliable evidence The Court finds that plaintiff has raised serious questions as to the reliability of the four pieces of evidence used to validate him. Plaintiff has submitted evidence disputing the interpretation of the drawing confiscated from his footlocker, as well as disputing that he created the drawing. Similarly, plaintiff has raised significant questions about the reliability of Officer Romero’s April 13, 1993 typewritten report. At the very least, the parties’ competing declarations from Officer Romero are sufficient to raise a dispute of material fact on this point.

*10 With regard to the 1992 and 1998 confidential informant reports, when using information from a confidential informant the record must contain “some factual information from which the committee can reasonably conclude that the information was reliable.” Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir.1987). In Zimmerlee, the Ninth Circuit held that

a prison disciplinary committee’s

determination derived from a

statement of an unidentified inmate

informant satisfies due process

when (1) the record contains some

factual information from which the

committee can reasonably conclude

that the information was reliable,

and (2) the record contains a prison

official’s affirmative statement that

safety considerations prevent the

disclosure of the informant’s name.

Review of both the reliability

determination and the safety

determination

should

be

deferential.

Id. (citing Mendoza v. Miller, 779 F.2d 1287, 1293 (7th Cir.1985)). The court went on to explain that reliability may be established in one of four ways:

(1) the oath of the investigating officer appearing before the committee as to the truth of his

7

Lira v. Director of Corrections
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 based on the informant’s past record, or (4) an in camera review of the documentation from which credibility was assessed.
Id. at 186-87. Furthermore, proof that the confidential informant previously supplied reliable information is sufficient. Id. at 187.
Defendants argue that the September 1992 confidential informant/debriefing report is reliable because (1) the informant incriminated himself by admitting criminal activity in providing the information, (2) some of the information had proved to be true at the time the report was prepared, and (3) part of the information had been previously supplied by an independent source. Plaintiff argues that the report is not reliable because the inmate debriefing process involves no risk of self incrimination. Furthermore, neither the information that “had proved to be true at the time the report was made,” nor the independent proof, is identified on the report itself or elsewhere. Finally, plaintiff notes that the CDCR recognized the inherent unreliability of “laundry lists” which simply name alleged gang associates when CDCR changed its regulations in 2005. The Court finds that plaintiff has raised triable issues as to the reliability of this report.
Defendants argue that the 1998 confidential informant/debriefing report is reliable because the informant had previously provided information which proved to be true, other confidential informants had independently provided the same information, and the informant incriminated himself in providing the information.
Plaintiff argues that the 1998 report is unreliable because it does not name the inmate allegedly assaulted by Lira, or provide the date or time frame of the assault. The Pelican Bay SHU cellblock activity logs that do refer to plaintiff fighting with a newly assigned cellmate are not corroborated by CDCR records. Moreover, plaintiff asserts that the dispute was because the cellmate had behavioral problems, and not for gang-related reasons. The disciplinary report that was generated regarding the incident reflects no evidence of physical violence or disciplinary violation cited against plaintiff. Furthermore,

plaintiff argues that mailing a threatening letter is implausible because inmate mail at Pelican Bay was closely screened for gang-related communications at the time plaintiff allegedly sent the threatening letter. The Court finds that plaintiff has raised questions about the reliability of this report and the above mentioned pieces of evidence, and the Court finds that there are triable issues of material fact as to whether plaintiff’s evidentiary due process rights were violated. Accordingly, the Court DENIES defendants’ motion for summary judgement as to whether plaintiff’s evidentiary due process rights were violated.
B. Procedural due process *11 Defendants contend that plaintiff was afforded due process both at Deuel and at Pelican Bay because he (1) was provided with notice regarding the reasons for his placement in Ad Seg and the SHU, (2) had his status reviewed by numerous committees at DVI and Pelican, in which he was made aware of the reasons for the decisions being made and afforded an opportunity to express himself, (3) had his status reviewed by IGIs and the Special Services Unit, (4) submitted inmate appeals, (5) was afforded opportunities to review his central file and some of the evidence used to validate him, (6) was provided with confidential disclosure forms, and (7) had his housing placement regularly reviewed by different Classification Service Representatives.
Plaintiff argues his due process rights were violated because (1) he was never afforded an informal hearing before a CDCR IGI prior to the completion of his validation process, (2) all of his requests for access to the evidence relied on for his validation were rejected or ignored until October 18, 1996, almost a year after he was first placed in Ad Seg, and (3) his periodic reviews and appeals were not meaningful. The facts, accepted in the light most favorable to plaintiff, show that there is a dispute of material fact as to whether plaintiff’s constitutional right was violated when he was not afforded an opportunity to be heard before he was validated as a gang associate and not afforded meaningful periodic reviews. Therefore, defendants’ summary judgment motion as to the issue of procedural due process is DENIED.
II. Individual defendants In their motion for summary judgement, defendants also argue that each individual defendant did not violate plaintiff’s due process rights. However, plaintiff has raised questions of fact as to the reliability of the evidence
8

Lira v. Director of Corrections
used to validate him and the meaningfulness of the hearings. Because each remaining defendant was involved in some way, either in the evidentiary and validation process or in the subsequent hearings and appeals, the Court finds that plaintiff has raised triable issues of fact as to the liability of each defendant. Accordingly, the Court DENIES defendants’ summary judgment as to the liability of each defendant.
III. Qualified immunity Qualified immunity protects government officials from civil liability for actions taken within their official discretion insofar as these actions do not violate clearly established statutory or constitutional rights of which a reasonable official would have been aware. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity is not merely a defense to liability; rather, when applicable, qualified immunity protects government officials from lawsuits and, hence, from the burdens of litigation. See Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). In ruling upon the issue of qualified immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the defendant’s conduct violated a constitutional right. Id. at 201. If, and only if, a violation can be made out, the next step is to ask whether the right was clearly established. Id.
*12 By 1992, the law was clearly established that due process required that plaintiff be given notice and a meaningful opportunity to heard before he was validated as a gang associate; that “some evidence” support the decision and that the supporting evidence have some indicia of reliability; and that plaintiff be provided with periodic reviews that were more than meaningless gestures. See Toussaint, 926 F.2d at 802-03; Cato, 824 F.2d at 705; Toussaint, 801 F.2d at 1098-1101; see also Guizar v. Woodford, 2007 WL 951294, at *5 (N.D.Cal. Mar.27, 2007) (denying qualified immunity in gang validation case because “defendants could not have reasonably believed that due process did not require their providing plaintiff with an opportunity to present his views to the officials responsible for placing him in administrative segregation and the SHU”); Tapia, 2006 WL 842470, at *16-17 (denying qualified immunity in gang validation case where plaintiff argued that he was not given notice and opportunity to be heard regarding initial validation and that post-validation hearings were not meaningful).
Defendants argue that they cannot be held liable for the possible procedural misstep of the IGI in initially

validating plaintiff because reasonable officers in their position would not have believed they were violating the law in connection with their post-validation decisions. However, due process requires that plaintiff be provided with meaningful post-validation hearings. See Tapia, 2006 WL 842470, at *16-17. Plaintiff has set forth triable issues of fact as to the reliability of the validating evidence, as well as whether he was afforded a hearing before his validation as a gang associate and in the postvalidation hearings while at DVI and Pelican Bay. Accordingly, the Court DENIES summary judgment as to the issue of qualified immunity.
IV. Damages claim for mental harm Defendants seek summary judgment on plaintiff’s claim for mental harm, arguing that plaintiff has not substantiated either his diagnosis for PTSD nor any causal relationship between his diagnosed depression and PTSD and his SHU confinement. In support, defendants rely primarily on the opinion of their mental health expert, Dr. Adam Goldyne. However, plaintiff has submitted declarations of mental health experts who have concluded that plaintiff does suffer from PTSD, and that both plaintiff’s depression and PTSD are a result of his eight year SHU confinement. As such, the Court finds that there are material issues of fact as to both diagnosis and causation.
Defendants also argue that the PLRA bars plaintiff’s claim for emotional and mental distress damages. 42 U.S.C. § 1997e(e) provides:
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.
Interpreting this section as applied to a Fourteenth Amendment claim, the Ninth Circuit held, “ § 1997e(e) applies only to claims for mental and emotional injury. To the extent that appellant’s claims for compensatory, nominal or punitive damages are premised on alleged Fourteenth Amendment violations, and not on emotional or mental distress suffered as a result of those violations, § 1997e(e) is inapplicable and those claims are not barred.” Oliver v. Keller, 289 F.3d 623, 630 (9th Cir.2002). Accordingly, the Courts DENIES defendants’ summary judgment motion as to this issue.
9

Lira v. Director of Corrections

V. Injunctive relief *13 Plaintiff seeks a judicial declaration that his gang validation was never supported by accurate or reliable evidence and implemented in violation of his procedural rights. In conjunction with this, plaintiff also seeks a court order directing defendant Tilton as Secretary of CDCR to expunge his validation as a Northern Structure associate from departmental records, to report the expungement to all gang-related law enforcement databases and clearinghouses to which the original validation was reported previously, and to remove all related documents from plaintiff’s C-file.
Defendants argue that plaintiff’s claim for injunctive relief is moot in light of plaintiff’s forthcoming discharge from CDCR custody. Ordinarily, an inmate’s “release from prison while his claims are pending generally will moot any claims for injunctive relief relating to the prison’s policies unless the suit has been certified as a class action.” Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir.1995). However, plaintiff contends that his claim for injunctive relief is not moot because the validation will continue to have an adverse impact on him. See Kerr v. Farrey, 95 F.3d 472, 476 (7th Cir.1996) (paroled prisoner’s claim to have negative references expunged from prison record not moot “because any such references may have a continuing adverse impact on him”). Plaintiff argues that he will be at risk of suffering reprisal attacks from actual Northern Structure members or associates. Plaintiff notes that defendants have gone to great lengths during the course of this litigation to show that prison gangs can assault former inmates on the outside if they

are perceived-even wrongly-as dropouts or other enemies of the gang.
The Court agrees with plaintiff that his claim for injunctive relief is not moot. Defendants argue that plaintiff has failed to demonstrate how prison gang members, who are not provided access to CDCR’s gang intelligence records, would have knowledge that plaintiff’s gang files have been expunged. However, as the parties are aware, and as discussed at the summary judgment hearing, the trial in this matter, and any resulting judgment, will be a matter of public record. Thus, plaintiff’s current status as a validated Northern Structure associate, and any expungement of that validation if plaintiff prevails, will be a matter of public record. Accordingly, the Court finds that plaintiff may continue to pursue his claim for injunctive relief.
CONCLUSION
For the foregoing reasons, the Court DENIES defendants’ motion for summary judgment. [Docket No. 249]
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2008 WL 619017
	  

Footnotes	  

	  

1	  

CDCR	  never	  produced	  the	  form	  115	  report	  during	  the	  course	  of	  this	  litigation.	  

	  

	  

2	  

These	  summaries	  were	  in	  the	  form	  of	  128B	  chronos.	  

	  

	  

3	  

At	   least	   one	   of	   the	   three	   sources	   must	   be	   a	   direct	   link	   to	   a	   validated	   member,	   such	   as	   “a	   validated	   member	   or	   former	  

	  

member	   identifying	   the	   inmate/parolee	   as	   an	   associate;	   correspondence	   with	   a	   validated	   member;	   photographed	   with	   a	   validated	  member;	  staff	  or	  informant	  observations	  of	  being	  in	  company	  with	  a	  validated	  member;	  identified	  as	  an	  associate	  

by	  a	  validated	  associate	  who	  has	  a	  documented	  direct	  link;	  etc.”	  DOM	  §	  55070.19.3;	  Madrid,	  889	  F.Supp.	  at	  1242.	  

	  

	  
	  

10

 
 Lira v. Director of Corrections of State of California 2002 WL 1034043
2002 WL 1034043 Only the Westlaw citation is currently available.
United States District Court, N.D. California. Ernesto G. LIRA, Plaintiff, v.
DIRECTOR OF CORRECTIONS OF THE STATE OF CALIFORNIA; et al., Defendants. No. C 00–905 SI (PR). | May 17, 2002.
JUDGMENT
ILLSTON, J. *1 This action is dismissed without prejudice because plaintiff did not exhaust his administrative remedies before filing the complaint. IT IS SO ORDERED AND ADJUDGED.
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
INTRODUCTION Ernesto G. Lira, an inmate currently housed at Pelican Bay State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. Defendants now move for judgment on the pleadings or, alternatively, for summary judgment and Lira opposes the motion. The court finds no triable issues of material fact exist and defendants are entitled to judgment as a matter of law. The court therefore will grant defendants’ motion for summary judgment. The court also considers and denies plaintiff’s motion for appointment of counsel.
BACKGROUND

Lira’s complaint alleges that his due process rights were violated when he was labeled a gang associate and placed in administrative segregation (“ad seg”) because there was not sufficient reliable evidence to support the decision. His complaint also alleges that his due process rights were violated at the many periodic reviews that have occurred since his original placement in ad seg. The following facts are undisputed, unless otherwise noted.
On December 28, 1995, while he was housed at Deuel Vocational Institute (“Deuel”), Lira received a California Department of Corrections form “Order And Hearing For Placement In Segregated Housing.” In the order, correctional lieutenant Olmstead wrote that he had been informed by the investigative services unit that Lira was “a validated Northern Structure associate. Per the aforementioned, your continued presence in the RC/GP poses a threat to the safety of staff and inmates alike, and to the security of this facility.” Plaintiff’s Declaration In Support Of Motion In Opposition To Defendants’ Motion For Judgment On The Pleadings Or Alternatively, Motion For Summary Judgment (“Lira Decl.”), Exh. 5. Lieutenant Olmstead ordered Lira into ad seg “pending review/evaluation of case factors.” Id. Lira checked the box on the Segregated Housing Order form that stated “I understand that I have a right to a hearing concerning my placement in segregated housing and I hereby waive that right.” Id., part III. On January 4, 1996, Lira appeared before the Deuel institutional classification committee for the initial review of his placement in ad seg. The committee elected to retain him in ad seg pending review of his prison gang membership. Lira has remained in ad seg since then, although now he is housed in ad seg at Pelican Bay State Prison, to which he was transferred in September 1996.1 Lira received many periodic reviews of his retention in ad seg since 1995, but none of those periodic reviews has resulted in his removal from ad seg.
Lira filed an inmate grievance concerning his placement in ad seg. In his grievance filed on July 29, 1996, Lira described his problem: “The following is my appeal for this lock up order ‘114D’ dated 12–28–95 and the so call validation chronos being used.” Lira Decl., Exh. 1, p. 1 (spelling as in original). In the “action requested” portion of the form, he wrote “# 1. To be released from ad./seg. and returned to G./P, # 2 Remove all these 128–B from my C.D .C. file. # 3. Be given a program and left alone to do my time, Im to old to play games, never have.” Id. (spelling and grammar as in original). By the time the appeal reached the director’s level, the issue was described by the reviewer as “[w]hether or not the institution’s denial of appellant’s request to release him to the general population and remove all gang related
1

Lira v. Director of Corrections of State of California 2002 WL 1034043
information from his Central File (C–File) is appropriate.” Lira Decl., Exh. 1, Director’s Level Review dated January 24, 1997, p. 1. The director’s level decision denied the appeal. Id.
*2 Lira filed other inmate grievances, but never appealed them to the director’s level of review.
VENUE AND JURISDICTION
Venue is proper in the Northern District of California under 28 U .S.C. § 1391 because a substantial part of the events or omissions giving rise to the claims occurred at Pelican Bay State Prison in Del Norte County, which is located within the Northern District. This court has federal question jurisdiction over this action brought under 42 U.S.C. § 1983. See 28 U.S.C. § 1331.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Defendants have moved for summary judgment on the affirmative defense that Lira failed to exhaust administrative remedies before filing this action. See Wyatt v. Terhune, 280 F.3d 1244, 1245. Where, as here, the moving party bears the burden of proof at trial, he must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. Smith, 965 F.2d 1532, 1536 (9th Cir.1992). He must establish the absence of a genuine issue of fact on each issue material to his affirmative defense. Id. at 1537; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”) Once the moving party has come forward with this evidence, the burden shifts to the non-movant to set forth specific facts showing the existence of a genuine issue of fact on the defense.
A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn. 10–11 (9th Cir.1995) (treating plaintiff’s verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were

true and correct, and allegations were not based purely on his belief but on his personal knowledge).
The court’s function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). The evidence must be viewed in the light most favorable to the nonmoving party and the inferences must be drawn in the light most favorable to the nonmoving party. See id. at 630–31.
DISCUSSION
A. Exhaustion The Prison Litigation Reform Act of 1995, Pub.L. No. 104–134, 110 Stat. 1321 (1996) (“PLRA”), amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Even if an inmate seeks only money damages, he must complete the prison administrative grievance process that can provide some sort of relief on the complaint stated. See Booth v. Churner, 532 U.S. 731, 739–41 (2001).2
*3 The State of California provides its inmates and parolees the right to appeal administratively “any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare.” See Cal.Code Regs. tit. 15, § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. See id. § 3084.5; Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D.Cal.1997). Some relief is available under the California prison administrative grievance system for aggrieved prisoners.
The exhaustion requirement applies to all claims in a complaint; it is not enough to exhaust administrative remedies as to one claim and then use that exhaustion as a jurisdictional hook to have many unexhausted claims considered in a federal civil rights action. “When multiple prison condition claims have been joined, as in this case,
2

Lira v. Director of Corrections of State of California
2002 WL 1034043
the plain language of § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims.” Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000); Rivera v. Whitman, 161 F.Supp.2d 337, 340– 43 (D.N.J.2001) (dismissing without prejudice § 1983 prisoner action containing exhausted and unexhausted claims because plain language of § 1997e(a), as well as the legislative intent and policy interests behind it, compel a “total exhaustion” rule). But see Johnson v. True, 125 F.Supp.2d 186, 188 (W.D.Va.2000).
It is undisputed that Lira only filed a director’s level appeal and received a response thereto on his 1996 administrative grievance; he did not do so for any other grievance. Because Lira only exhausted administrative remedies as to the 1996 administrative grievance, the scope of the 1996 administrative grievance must be determined. Lira defined the scope of the 1996 administrative grievance when he wrote that he was appealing “this lock up order ‘114D’ dated 12–28–95 and the so call validation chronos being used.” Lira Decl., Exh. 1, p. 1 (spelling as in original). He wrote that he wanted to be released from ad seg to the general prison population and to have erroneous CDC–128 chronos expunged from his file. Id. Lira did not directly challenge any of the periodic reviews that had occurred up until that date. His grievance was limited to his placement in ad seg.
Lira’s 1996 administrative grievance did not challenge the propriety of any of the periodic reviews that occurred after the grievance was filed. Those later periodic reviews—conducted by many different defendants—form the basis for portions of his due process claim in this action. His complaint in this action claims he was denied due process in the original decision to place him in ad seg, as well as at the periodic reviews that occurred in 1996 through 1999. Complaint, p. 60 (alleging that defendants violated Lira’s right to due process in that they (1) placed him in ad seg wrongfully, (2) failed to give him an opportunity to be heard, and (3) “failed to provide meaningful 120 day classification reviews”). Most of the periodic reviews occurred at Pelican Bay, after his transfer there in September 1996. See Complaint, ¶¶ 12— 32. For example, Lira alleges that he received his initial review at Pelican Bay on September 27, 1996 by defendants Stokes, Bolles, and Heaps, see Complaint, ¶ 13. He does not allege that those defendants did anything wrongful before that date, yet his 1996 administrative grievance predates that initial review and could not have exhausted a later-arising claim. These defendants (and many other defendants) are named as defendants and have liability exposure only because of their alleged denial of due process to Lira when they conducted periodic

reviews.3 On the undisputed fact that only the 1996 administrative grievance was exhausted, the court concludes that Lira has not exhausted his claims that he was denied due process during the later periodic reviews.
*4 Lira argues that he “would have been precluded from raising and/or submitting the same issue that was previously adjudicated at the director’s level review” in the appeal of his 1996 grievance. Opposition, p. 17. That may be true, but it is irrelevant: the later periodic reviews of his ad seg housing were not within the scope of the 1996 grievance and appeal. Lira has not presented any evidence to support his speculation that a later grievance on separate allegedly wrongful acts—i.e., the later periodic reviews—would have been barred by the grievance challenging his original wrongful placement in ad seg. In fact, Lira did file grievances after his 1996 administrative grievance and those later grievances were not rejected as repetitive. See Lira Decl., Exhs. 2 and 3.
Lira also argues that exhaustion was not required because damages were not available for a claim such as his. This argument is unpersuasive. Exhaustion of all “available” remedies is mandatory; those remedies need not meet federal standards, nor must they be “plain, speedy and effective.” Porter v. Nussle, 122 S.Ct. 983, 988 (2002); Booth v. Churner, 532 U.S. at 739–40 & n. 5. Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id. at 741. A prisoner “seeking only money damages must complete a prison administrative process that could provide some sort of relief on the complaint stated, but no money.” Id. at 734. That the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See id. at 736–41; see also Porter, 122 S.Ct. at 988 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records).
Several of defendants’ arguments also do not persuade the court. First, defendants’ argument that Lira did not exhaust his claim for monetary relief because he did not seek monetary relief in his administrative grievance is unpersuasive because the Supreme Court specifically rejected this construction of § 1997e(a) in Booth, 532 U.S. at 739: “one ‘exhausts’ processes, not forms of relief.” Second, defendants’ argument that Lira must exhaust by filing a grievance naming the specific persons he ultimately seeks to sue goes too far, as an inmate may not know all the names of the defendants until after he files a civil action and conducts discovery, in which case, he
3

Lira v. Director of Corrections of State of California
2002 WL 1034043
would have to dismiss his action and file anew under defendants’ reasoning. Finally, the court rejects the notion that the PLRA exhaustion requirement should be treated similarly to the habeas exhaustion requirement. The comity interest, the abuse of the writ doctrine, and the successive petition rules that support the habeas exhaustion requirement simply are not present in nonhabeas actions such as this.
*5 Defendants have established the absence of a genuine issue of fact on the administrative exhaustion defense. Lira did not pursue his administrative grievance to the highest level available under the prison administrative grievance and appeal system for all his claims before filing this action as required by 42 U.S.C. § 1997e(a). The plain language of § 1997e(a) makes exhaustion a precondition to filing in federal court: “No action shall be brought ... until such administrative remedies as are available are exhausted.” Even viewing the evidence in the light most favorable to Lira and drawing the inferences therefrom in his favor, no reasonable jury could return a verdict in favor of Lira and against any defendant. Defendants are entitled to summary judgment.
This action is being decided on the summary judgment motion rather than the motion for judgment on the pleadings because it is necessary to go beyond the pleadings to consider the parties’ evidence regarding the exhaustion of administrative remedies. Because defendants prevail on their threshold argument that Lira did not exhaust before filing this action, the court will not proceed to decide the other issues raised by defendants but will wait until if and when plaintiff files a new action containing after he exhausts his administrative remedies.

both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986). Neither of these factors is dispositive and both must be viewed together before deciding on a request for counsel under section 1915(e)(1).
Here, exceptional circumstances requiring the appointment of counsel are not evident. Based on the record before it, there is no likelihood of success on the merits because Lira did not exhaust his administrative remedies. The complaint also does not raise particularly difficult legal claims. Lira’s motion for appointment of counsel therefore is DENIED.
CONCLUSION
Defendants’ motion for summary judgment is GRANTED (Docket # 43). Judgment will be entered in defendants’ favor and against plaintiff. The decision in this action does not forever terminate Lira’s ability to seek redress for the wrongs he allegedly suffered. Lira may return to court to file a new action and pursue his legal remedies if he ever exhausts his administrative remedies.
Plaintiff’s motion for appointment of counsel is DENIED. (Docket # 57.)
The clerk shall close the file.
IT IS SO ORDERED.

B. Lira’s Motion For Appointment Of Counsel Lira has moved for the appointment of counsel to represent him in this action. A district court has the discretion under 28 U.S.C. § 1915(e)(1) to designate counsel to represent an indigent civil litigant in exceptional circumstances. This requires an evaluation of

All Citations
Not Reported in F.Supp.2d, 2002 WL 1034043
	  

Footnotes	  

	  

1	  

Defendants	   filed	   two	   exhibits	   under	   seal	   with	   their	   motion	   for	   summary	   judgment.	   The	   exhibits	   were	   memoranda	  

	  

documenting	  information	  received	  from	  inmates	  who	  told	  prison	  staff	  details	  about	  prison	  gang	  activities	  and	  membership.	   The	   court	   granted	   defendants’	   request	   for	   in	   camera	   review	   of	   confidential	   documents	   used	   to	   determine	   that	   Lira	   was	  

affiliated	  with	  NS.	  Lira	  objected	  to	  the	  filing	  of	  the	  documents	  under	  seal	  and	  the	  in	  camera	  review	  procedure	  at	  the	  time	  he	  

filed	   his	   opposition	   to	   defendants’	   motion	   for	   summary	   judgment.	   The	   court	   has	   considered	   Lira’s	   arguments	   and	   rejects	  

his	   request	   to	   make	   the	   sealed	   documents	   available	   to	   him.	   Defendants	   have	   adequately	   shown	   that	   confidential	  

information	  in	  the	  documents,	  if	  disclosed,	  would	  create	  a	  risk	  to	  the	  safety	  of	  other	  prisoners	  and	  the	  institution.	  

	  

2	  

Even	   though	   Booth	   was	   decided	   after	   Lira	   filed	   this	   action,	   it	   applies	   to	   him.	   When	   the	   Supreme	   Court	   applies	   a	   rule	   of	  

federal	  law	  to	  the	  parties	  before	  it,	  as	  it	  did	  in	  Booth,	  that	  rule	  is	  the	  controlling	  interpretation	  of	  federal	  law	  and	  must	  be	  

4

Lira v. Director of Corrections of State of California 2002 WL 1034043

	  

given	   full	   effect	   in	   all	   cases	   still	   open	   on	   direct	   review	   and	   as	   to	   all	   events,	   regardless	   of	   whether	   such	   events	   predate	   or	  

postdate	  the	  announcement	  of	  the	  rule.	  Harper	  v.	  Virginia	  Dep’t	  of	  Taxation,	  509	  U.S.	  86,	  94–99	  (1993).	  

	  

3	  

The	   periodic	   reviews	   are	   not	   simply	   an	   opportunity	   for	   a	   committee	   to	   revisit	   and	   decide	   anew	   whether	   an	   inmate’s	  

	  

original	  placement	  was	  correct;	  their	  purpose	  is	  to	  consider	  whether	  the	  inmate	  should	  remain	  in	  ad	  seg.	  With	  this	  different	   purpose,	  the	  defendants	  who	  conduct	  periodic	  reviews	  could	  have	  liability	  wholly	  separate	  from	  that	  of	  the	  defendants	  who	  

make	  the	  original	  decision	  to	  place	  an	  inmate	  in	  ad	  seg.	  For	  example,	  if	  an	  inmate	  was	  placed	  in	  ad	  seg	  on	  information	  that	  

was	   deemed	   reliable	   in	   1995,	   but	   something	   happened	   in	   1997	   to	   undermine	   the	   reliability	   of	   the	   information	   (e.g.,	   the	  

informants	  who	  identified	  the	  inmate	  as	  a	  prison	  gang	  member,	  recanted,	  and	  said	  they	  had	  framed	  him),	  there	  would	  have	  

been	  sufficient	  evidence	  to	  support	  the	  original	  decision,	  but	  not	  to	  support	  the	  continued	  retention	  in	  ad	  seg	  after	  the	  1997	  

evidentiary	   problem	   arose.	   Persons	   who	   conducted	   periodic	   reviews	   thereafter	   and	   decided	   that	   the	   wrongly	   accused	  

inmate	   should	   remain	   in	   ad	   seg	   without	   any	   evidence	   to	   support	   his	   retention	   there	   could	   be	   liable	   for	   a	   due	   process	  

violation.	  

	  

	  

	  

	  

	  

5

 
 Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 1 of 61
CLOSED,E−Filing,REFSET−NJV
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:00−cv−00905−SI

Lira v. Director of Correct, et al Assigned to: Hon. Susan Illston Demand: $0 Case in other court: USCA, 08−15529
USCA, 09−17446 Cause: 42:1983 Prisoner Civil Rights Plaintiff
Ernesto G. Lira

Date Filed: 03/14/2000 Date Terminated: 09/30/2009 Jury Demand: Both Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: Federal Question
represented by Douglas Andrew Winthrop Arnold & Porter LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111−4024 415−471−3100 Fax: 415−471−3400 Email: douglas.winthrop@aporter.com TERMINATED: 12/05/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William B. Chapman Chapman, Popik & White LLP 650 California Street, 19th Floor San Francisco, CA 94108 (415) 352−3000 Fax: (415) 352−3030 Email: chapman@chapop.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol Dana Quackenbos Attorney at Law Chapman Popik & White LLP 650 California Street Suite 1900 San Francisco, CA 94108 415−352−3000 Fax: 415−352−3030 Email: cquackenbos@gmail.com ATTORNEY TO BE NOTICED
Mark Andrew White Chapman, Popik & White, LLP 650 California Street, 19th Floor San Francisco, CA 94108 (415) 352−3000 Email: mwhite@chapop.com ATTORNEY TO BE NOTICED
Robert Hallman Arnold & Porter LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111−4024 415−471−3100 Fax: 415−471−3400 Email: robert.hallman@aporter.com TERMINATED: 12/05/2006 ATTORNEY TO BE NOTICED

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 2 of 61
Scott John Feudale Office of the County Counsel Alameda County 1221 Oak Street, Suite 450 Oakland, CA 94612 (510) 272−6700 Fax: 510−272−5020 Email: scott.feudale@acgov.org ATTORNEY TO BE NOTICED

V. Defendant Director of Corrections TERMINATED: 01/22/2001 Defendant Warden Robert L. Ayers, Jr. TERMINATED: 01/22/2001 Defendant Lt. Herrera
Defendant Fielder

represented by Jonathan Lloyd Wolff CA State Attorney General's Office 455 Golden Gate Avenue Ste 11000 San Francisco, CA 94102−7004 415 703−1113 Fax: 415 703−5843 Email: jon.wolff@doj.ca.gov TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Colin Mather CA State Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 415−703−5709 Fax: 415−703−5843 Email: Scott.Mather@doj.ca.gov TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Felice O'Bannon Attorney General's Office 455 golden Gate Ave., suite 11000 San Francisco, CA 94102 (415) 703−5735 Fax: (415) 703−5843 Email: Danielle.OBannon@doj.ca.gov ATTORNEY TO BE NOTICED
represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 3 of 61

ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Defendant
Covello TERMINATED: 07/31/2000

Defendant
G. H. Wise TERMINATED: 07/31/2000

Defendant M. Piland

represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Defendant J. Briddle

represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Colin Mather (See above for address) TERMINATED: 11/14/2001

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 4 of 61

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Defendant
J. Pena TERMINATED: 07/31/2000

Defendant
R. Romero TERMINATED: 07/31/2000

Defendant
A. Scribner TERMINATED: 02/12/2008

represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Defendant J. Stokes

represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Defendant
B. Heaps TERMINATED: 02/12/2008

represented by Jonathan Lloyd Wolff (See above for address)

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 5 of 61

TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Defendant
Bruce TERMINATED: 02/12/2008

represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Defendant
K. Cruse TERMINATED: 02/12/2008

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 6 of 61

M. J. Nimrod TERMINATED: 02/12/2008

Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Defendant K. Mann

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant D. Best

represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Defendant
C. Patten TERMINATED: 02/12/2008

represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 7 of 61

Defendant D. Bradbury TERMINATED: 02/12/2008
Defendant K. C. Bolles TERMINATED: 02/12/2008
Defendant P. J. Dillard TERMINATED: 07/31/2000

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 8 of 61

Defendant M. Smith TERMINATED: 07/31/2000 Defendant J. Cello TERMINATED: 07/31/2000 Defendant Olson TERMINATED: 07/31/2000 Defendant Edward Alameida
Defendant Asst. Warden Busser
Defendant Multrup TERMINATED: 07/31/2000 Defendant

represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 9 of 61

Mills TERMINATED: 01/22/2001

Defendant
G. Luks TERMINATED: 01/22/2001

Defendant
Lt. W. J. Olmsted TERMINATED: 02/12/2008

represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Defendant
N. Kramer TERMINATED: 07/31/2000

Defendant
R. Kersh TERMINATED: 01/22/2001

Defendant
K. Takahashi TERMINATED: 01/22/2001

Defendant
Sgt. D. Conley TERMINATED: 01/22/2001

Defendant
Correctinal Officer Duncan TERMINATED: 01/22/2001

Defendant
G. M. Ater TERMINATED: 01/22/2001

Defendant
Ms. Curtis TERMINATED: 01/22/2001

Defendant

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 10 of 61

Correction Officer W. E. Murray TERMINATED: 01/22/2001

Defendant
P. Jamieson TERMINATED: 01/22/2001

Defendant
J. Chavez TERMINATED: 02/12/2008

represented by Jonathan Lloyd Wolff (See above for address) TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Colin Mather (See above for address) TERMINATED: 11/14/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Defendant
Director of Corrections of the State of California

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
R. Pederson TERMINATED: 07/03/2007

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
D Smith TERMINATED: 07/03/2007

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
J. Cox TERMINATED: 02/12/2008

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 11 of 61

Defendant
B. O'Neill TERMINATED: 02/12/2008

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant
Steve R. Moore TERMINATED: 02/12/2008

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant
K. Slatten TERMINATED: 02/12/2008

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant
L. Olivas TERMINATED: 02/12/2008

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant
P. S. Nowling TERMINATED: 02/12/2008

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 12 of 61

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant
S. Dwight TERMINATED: 02/12/2008

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant
M. Day TERMINATED: 02/12/2008

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant
J. Maykel TERMINATED: 02/12/2008

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant Teresa Schwartz

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address)

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 13 of 61

ATTORNEY TO BE NOTICED

Defendant Richard Kirkand

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant
Victor Almager TERMINATED: 02/12/2008

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant
James E. Tilton TERMINATED: 10/08/2008

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant Judy Olson

represented by Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant Donald Schmidt

represented by Scott John Feudale (See above for address) LEAD ATTORNEY

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 14 of 61

ATTORNEY TO BE NOTICED

Danielle Felice O'Bannon (See above for address) ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Defendant
Matthew Cate Secretary of CDCR

represented by Danielle Felice O'Bannon Attorney General's Office CLS 455 golden Gate Ave., suite 11000 San Francisco, CA 94102 (415) 703−5735 Fax: (415) 703−5843 Email: Danielle.OBannon@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neah Huynh Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 415−703−5720 Fax: 415−703−5843 Email: neah.huynh@doj.ca.gov ATTORNEY TO BE NOTICED

3rd party defendant pizzella

represented by Danielle Felice O'Bannon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Lloyd Wolff (See above for address) ATTORNEY TO BE NOTICED

Scott John Feudale (See above for address) ATTORNEY TO BE NOTICED

3rd party defendant Don Waite

represented by Scott John Feudale (See above for address) ATTORNEY TO BE NOTICED

3rd party defendant pederson, richard

represented by

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 15 of 61
Scott John Feudale (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/14/2000 03/14/2000 04/20/2000 05/05/2000 05/05/2000 05/30/2000 06/26/2000
06/26/2000 07/31/2000
08/07/2000 08/11/2000 12/19/2000 12/19/2000 12/19/2000 12/19/2000 12/19/2000 12/19/2000

# Docket Text
1 COMPLAINT Fee status ifpp entered on 3/14/00 (); jury demand [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
1 IN FORMA PAUPERIS AFFIDAVIT by Plaintiff Ernesto G. Lira for leave to proceed in forma pauperis [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
2 LETTER dated 4/12/00 from Ernesto G. Lira inquiring as to the status of the issuance of process. [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
3 NOTICE by Plaintiff Ernesto G. Lira [1−1] lawsuit and request for waiver of summons. [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
RECEIVED Waiver of Service of Summons form submitted by Plaintiff Ernesto G. Lira [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
4 DECLARATION by Ernesto G. Lira and request that it be attached to the complaint [1−1] as exhibit #14th, as well as attach exhibits #12, and #13. [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
5 ORDER by Judge Susan Illston granting affidavit motion for leave to proceed in forma pauperis [1−1]; the total filing fee due is $150.00; the initial partial filing fee due for the plaintiff at this time if $6.47. (cc: all counsel) [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
6 ORDER by Judge Susan Illston of dismissal with leave to amend ; plaintiff must file an amendment to complaint no later than 7/28/00. (cc: all counsel) [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
7 AMENDED COMPLAINT [1−1] by Plaintiff Ernesto G. Lira; jury demand terminating defendant N. Kramer, defendant W. J. Olmsted, defendant B., defendant Multrup, defendant Busser, defendant Edward Alameida, defendant Olson, defendant J. Cello, defendant M. Smith, defendant P. J. Dillard, defendant K. C. Bolles, defendant D. Bradbury, defendant C. Patten, defendant D. Best, defendant K. Mann, defendant K. Cruse, defendant Bruce, defendant B. Heaps, defendant A. Scribner, defendant R. Romero, defendant J. Pena, defendant M. Piland, defendant G. H. Wise, defendant Covello, defendant Fielder, defendant Herrera; adding R. Kersh, K. Takahashi, D. Conley, Duncan, G. M. Ater, Curtis, W. E. Murray, P. Jamieson [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
8 LETTER dated 7/31/00 from Ernesto G. Lira asking for confirmantion of receipt of his amended complaint. [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
9 DECLARATION by Ernesto G. Lira re complaint [7−1] [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
10 MOTION before Judge Susan Illston by Plaintiff Ernesto G. Lira for preliminary injunction [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
11 LETTER dated 12/14/00 from Ernesto G. Lira re his motion for preliminary injunction [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
12 MEMORANDUM by Plaintiff Ernesto G. Lira in support of motion for preliminary injunction [10−1] [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
13 DECLARATION by Ernesto G. Lira in support of motion for preliminary injunction [10−1] [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
14 EXHIBITS A, pages A−5 re motion for preliminary injunction [10−1] [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
15 RECEIVED Proposed Order ( Plaintiff Ernesto G. Lira ) re: motion for preliminary injunction [10−1] [3:00−cv−00905] (rcs, COURT STAFF) Modified on 03/30/2001

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 16 of 61

01/22/2001
02/02/2001
02/05/2001 02/28/2001 02/28/2001 03/19/2001 03/19/2001 03/27/2001 03/27/2001 04/10/2001 04/17/2001 05/03/2001 05/03/2001 05/08/2001 05/17/2001 05/17/2001 05/25/2001 05/29/2001 06/15/2001

(Entered: 03/30/2001)
16 ORDER by Judge Susan Illston order of service and partial dismissal dismissing defendants P. Jamieson, W. E. Murray, Curtis, G. M. Ater, Duncan, D. Conley, K. Takahashi, R. Kersh, G. Luks, Mills, Robert L. Ayers, and Director of Correct denying motion for preliminary injunction [10−1] () (cc: all counsel) [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
SUMMONS issued as to defendants Herrera, Fielder, M. Piland, J. Briddle, A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, and J. Chavez [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
17 REQUEST by Plaintiff Ernesto G. Lira for clarification of the defendants to be served with summons and complaint [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
18 RETURN OF SERVICE of copy of summons and complaint with the State Attorney General's Office [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
19 NOTICE OF APPEAL by Plaintiff Ernesto G. Lira from Dist. Court decision order [16−2] Fee status fp granted on 6/26/00 [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
Copy of notice of appeal and docket sheet to all counsel [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
CERTIFICATE of Record mailed to USCA, counsel notified. [3:00−cv−00905] (rcs, COURT STAFF) (Entered: 03/30/2001)
NOTIFICATION by Circuit Court of Appellate Docket Number 01−15515 [3:00−cv−00905] (slh, COURT STAFF) (Entered: 04/06/2001)
BRIEFING SCHEDULE from USCA [3:00−cv−00905] (slh, COURT STAFF) (Entered: 04/06/2001)
20 NOTICE AND MOTION before Judge Susan Illston by defendant to dismiss memorandum of points and authorities in support thereof [3:00−cv−00905] (ys, COURT STAFF) (Entered: 04/19/2001)
21 LETTER dated 04/11/01 from Plaintiff Ernesto G. Lira re request a copy of documents. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 04/27/2001)
22 NOTICE OF MOTION AND MOTION WITH MEMORANDUM OF POINTS AND AUTHORITIES before Judge Susan Illston by defendant for protective order staying discovery [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/14/2001)
RECEIVED Proposed Order ( defendant) re: motion for protective order staying discovery [22−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/14/2001)
23 MOTION before Judge Susan Illston by Plaintiff Ernesto G. Lira for appointment of counsel and declaration in support [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/22/2001)
24 OPPOSITION by Plaintiff Ernesto G. Lira to motion for protective order staying discovery [22−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/24/2001)
25 OPPOSITION by Plaintiff Ernesto G. Lira to motion to dismiss memorandum of points and authorities in support thereof [20−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/24/2001)
26 REPLY by defendant re opposition [25−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/29/2001)
27 COPY of USCA Order: Appellant's motion for appointment of counsel on appeal is DENIED. Appellant's opening brief is due 6/22/01. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/31/2001)
28 Rebuttal by Plaintiff Ernesto G. Lira re reply [26−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 06/19/2001)

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06/21/2001
07/18/2001 07/19/2001 09/18/2001 10/02/2001
10/10/2001
10/10/2001 10/10/2001 10/15/2001 10/24/2001
11/05/2001 11/14/2001

29 RETURN OF SERVICE executed upon defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant K. Cruse, defendant M. J. Nimrod, defendant K. Mann, defendant D. Best, defendant Herrera, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez on 6/20/01 [3:00−cv−00905] (ys, COURT STAFF) (Entered: 06/26/2001)
30 CERTIFIED COPY of USCA Order: dismissing the appeal [19−1] for failure to comply with the rules requiring processing the appeal to hearing. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 07/19/2001)
31 CLERK's letter spreading the mandate to counsel. re appeal [19−1]. Appeal is dismissed. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 07/19/2001)
32 LETTER dated 9/13/01 from plaintiff Ernesto G. Lira to clerk re requesting docket sheet and question about interrogatories. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 09/18/2001)
33 ORDER by Judge Susan Illston denying motion for appointment of counsel and declaration in support [23−1], denying motion for protective order staying discovery [22−1], denying motion [22−2], denying motion to dismiss memorandum of points and authorities in support thereof [20−1]. No later than 11/16/01, defendants shall file and serve a motion for summary judgment or other dispositive motion. Plaintiff's opposition to the summary judgment or other dispositive motion shall be filed with the court and served upon defendant no later than 12/28/01. If defendants wish to file a reply brief, they must file and serve their reply brief no later than 1/18/01. ( Date Entered: 10/4/01) (cc: all counsel) [3:00−cv−00905] (ys, COURT STAFF) (Entered: 10/04/2001)
34 EX−PARTE APPLICATION before Judge Susan Illston by defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant K. Cruse, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez to extend time to file answer [3:00−cv−00905] (ys, COURT STAFF) (Entered: 10/11/2001)
35 DECLARATION by Scott Mather on behalf of defendants re motion to extend time to file answer [34−1] [3:00−cv−00905] (ys, COURT STAFF) Modified on 10/11/2001 (Entered: 10/11/2001)
RECEIVED Proposed Order ( defendants ) re: motion to extend time to file answer [34−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 10/11/2001)
36 ORDER by Judge Susan Illston granting motion to extend time to file answer [34−1] to 10/31/01. ( Date Entered: 10/16/01) (cc: all counsel) [3:00−cv−00905] (ys, COURT STAFF) (Entered: 10/16/2001)
37 ANSWER by defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant K. Cruse, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez to complaint [1−1]; jury demand [3:00−cv−00905] (ys, COURT STAFF) (Entered: 10/25/2001)
38 LETTER dated 10/30/01 from plaintiff Ernesto G. Lira to Judge Illston re inquiries about defendant's answer to complaint. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 11/07/2001)
39 Notice of Change of Assigned ATTORNEY : terminating attorney Scott C. Mather for J. Chavez, attorney Scott C. Mather for W. J. Olmsted, attorney Scott C. Mather for Busser, attorney Scott C. Mather for Edward Alameida, attorney Scott C. Mather for K. C. Bolles, attorney Scott C. Mather for D. Bradbury, attorney Scott C. Mather for C. Patten, attorney Scott C. Mather for D. Best, attorney Scott C. Mather for M. J. Nimrod, attorney Scott C. Mather for K. Cruse, attorney Scott C. Mather for Bruce, attorney Scott C. Mather for B. Heaps, attorney Scott C. Mather for J. Stokes, attorney Scott C. Mather for A. Scribner, attorney Scott C. Mather for J. Briddle, attorney Scott

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 18 of 61

11/14/2001 11/14/2001 11/14/2001 11/30/2001 12/13/2001
12/13/2001 12/13/2001

C. Mather for M. Piland, attorney Scott C. Mather for Fielder, attorney Scott C. Mather for Herrera as counsel for by defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez and substituting attorney Jonathan L. Wolff [3:00−cv−00905] (ys, COURT STAFF) (Entered: 11/16/2001)
40 EX−PARTE APPLICATION before Judge Susan Illston by defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez to extend of time to file a motion for summary judgment or other dispositive motion. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 11/16/2001)
41 DECLARATION by Jonathan L. Wolff on behalf of defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez re motion to extend of time to file a motion for summary judgment or other dispositive motion. [40−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 11/16/2001)
RECEIVED Proposed Order ( defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez ) re: motion to extend of time to file a motion for summary judgment or other dispositive motion. [40−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 11/16/2001)
42 ORDER by Judge Susan Illston granting motion to extend of time to file a motion for summary judgment or other dispositive motion [40−1] to 12/21/01. Plaintiff must file and serve his opposition to the motion no later than 1/25/02. Defendants must file and serve their reply, if any, no later than 2/8/02 ( Date Entered: 11/30/01) (cc: all counsel) [3:00−cv−00905] (ys, COURT STAFF) (Entered: 11/30/2001)
43 NOTICE OF MOTION AND MOTION WITH MEMORANDUM OF POINTS AND AUTHORITIES before Judge Susan Illston by defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant K. Cruse, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez for judgment on the pleadings , or alternatively, for summary judgment with Notice set for [3:00−cv−00905] (ys, COURT STAFF) (Entered: 12/14/2001)
44 DECLARATION by Jonathan L. Wolff on behalf of defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant K. Cruse, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez re motion for judgment on the pleadings [43−1], re motion for summary judgment [43−2] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 12/14/2001)
RECEIVED Proposed Order ( defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant K. Cruse, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez ) re: motion for judgment on the pleadings [43−1], re: motion for summary judgment [43−2] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 12/14/2001)

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 19 of 61

12/13/2001
12/13/2001
12/17/2001 12/20/2001
01/28/2002 01/28/2002 03/01/2002 03/04/2002 03/04/2002 03/18/2002 04/26/2002 04/26/2002 04/26/2002 04/26/2002

RECEIVED defendants' notice of motion and motion for receipt of confidential documents under seal and for in camera review submitted by defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant K. Cruse, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez [3:00−cv−00905] (ys, COURT STAFF) (Entered: 12/14/2001)
RECEIVED Proposed Order granting defendants' motion for receipt of confidential documents under seal and for in camera review ( defendant Robert L. Ayers Jr., defendant Herrera, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant K. Cruse, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez ) [3:00−cv−00905] (ys, COURT STAFF) (Entered: 12/14/2001)
45 LETTER dated 12/5/01 from plaintiff Ernesto G. Lira to Judge Illston re service on defendant K. Mann. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 12/17/2001)
46 NOTICE OF MOTION AND MOTION before Judge Susan Illston by defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant K. Cruse, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez for receipt of confidential documents under seal and for in camera review FILED UNDER SEAL. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 12/21/2001)
47 REQUEST by Plaintiff Ernesto G. Lira for extension of time in which to file motion in opposition to defendants' motion for summary judgment and in camera review of filed documents under seal. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 01/29/2002)
48 DECLARATION by plaintiff Ernesto C. Lira on behalf of Plaintiff Ernesto G. Lira re request [47−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 01/29/2002)
51 ORDER by Judge Susan Illston granting request [47−1]. Plaintiff must file and serve his opposition to the motion for dismissal/summary judgment no later than 3/15/02. No further extensions of time will be granted. Defendants must file and serve their reply, if any, no later than 3/29/02 ( Date Entered: 3/5/02) (cc: all counsel) [3:00−cv−00905] (ys, COURT STAFF) (Entered: 03/05/2002)
49 REQUEST by Plaintiff Ernesto G. Lira for an extension of time in which to file motion in opposition to defendants' motion for summary judgment and in camera review of filed documents under seal. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 03/05/2002)
50 DECLARATION by Ernesto G. Lira on behalf of Plaintiff Ernesto G. Lira re request [49−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 03/05/2002)
52 LETTER dated 3/14/02 from plaintiff Ernesto G. Lira to Judge Illston re requesting extension of time to file his opposition to motion for summary judgment. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 03/19/2002)
53 Motion in OPPOSITION by Plaintiff Ernesto G. Lira to motion for receipt of confidential documents under seal and for in camera review [46−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 04/30/2002)
54 Motion in OPPOSITION by Plaintiff Ernesto G. Lira to motion for judgment on the pleadings [43−1], motion for summary judgment [43−2] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 04/30/2002)
55 DECLARATION by Plaintiff on behalf of Plaintiff Ernesto G. Lira re opposition [54−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 04/30/2002)
56 STATEMENT of disputed factual issues by Plaintiff Ernesto G. Lira [3:00−cv−00905] (ys, COURT STAFF) (Entered: 04/30/2002)

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 20 of 61

04/26/2002 04/26/2002 04/26/2002 04/26/2002 04/29/2002 05/01/2002
05/01/2002
05/16/2002 05/17/2002 05/17/2002 05/21/2002 05/22/2002 06/05/2002 06/13/2002

57 MOTION before Judge Susan Illston by Plaintiff Ernesto G. Lira for appointment of counsel [3:00−cv−00905] (ys, COURT STAFF) (Entered: 04/30/2002)
58 DECLARATION by Ernesto G. Lira on behalf of Plaintiff Ernesto G. Lira re motion for appointment of counsel [57−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 04/30/2002)
59 PROOF OF SERVICE by Plaintiff Ernesto G. Lira of declaration [58−1], motion for appointment of counsel [57−1], statement [56−1], declaration [55−1], opposition [54−1], opposition [53−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 04/30/2002)
60 LETTER dated 4/15/02 from Ernesto G. Lira to Judge Illston re his filings. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 04/30/2002)
61 DECLARATION by Plaintiff on behalf of Plaintiff Ernesto G. Lira re opposition [54−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/01/2002)
62 REPLY Brief by defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant K. Cruse, defendant M. J. Nimrod, defendant C. Patten, defendant D. Bradbury, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez, defendant D. Best re motion for judgment on the pleadings [43−1], re motion for summary judgment [43−2] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/03/2002)
63 Supplemental DECLARATION by Jonathan L. Wolff on behalf of defendant Herrera, defendant Fielder, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant K. Cruse, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant P. Jamieson, defendant J. Chavez re reply [62−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/03/2002)
64 LETTER dated 5/16/02 from plaintiff Ernesto G. Lira to US Marshals Services re requesting service to defendant Mann. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/16/2002)
65 ORDER by Judge Susan Illston denying motion for appointment of counsel [57−1], granting motion for summary judgment [43−2] dismissing case ; appeal filing ddl 6/19/02 ( Date Entered: 5/20/02) (cc: all counsel) [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/20/2002)
66 JUDGMENT: by Judge Susan Illston dismissing case without prejudice because plaintiff did not exhaust his administrative remedies before filing the complaint ; appeal filing ddl 6/19/02 ( Date Entered: 5/20/02) (cc: all counsel) [3:00−cv−00905] (ys, COURT STAFF) (Entered: 05/20/2002)
67 LETTER dated 3/8/02 from ll Lockyer, Attorney General, Jonathan L. Wolff, re Ms. Mann may be served c/o Litigation Coordiantor, Parole Region 11, 1515 Clay Street, 10th Floor, propounded upon her. [3:00−cv−00905] (db, COURT STAFF) (Entered: 05/22/2002)
68 REPLY by Plaintiff Ernesto G. Lira re reply [62−1] brief in support of motion for judgment on the pleadings, or alternatively, motion for summary judgment [3:00−cv−00905] (db, COURT STAFF) (Entered: 05/22/2002)
69 MOTION before Judge Susan Illston by Plaintiff Ernesto G. Lira to vacate judgment [3:00−cv−00905] (db, COURT STAFF) (Entered: 06/07/2002)
70 RESPONSE by defendant Fielder, defendant Covello, defendant M. Piland, defendant J. Briddle, defendant A. Scribner, defendant J. Stokes, defendant B. Heaps, defendant Bruce, defendant K. Cruse, defendant M. J. Nimrod, defendant D. Best, defendant C. Patten, defendant D. Bradbury, defendant K. C. Bolles, defendant Edward Alameida, defendant Busser, defendant W. J. Olmsted, defendant J. Chavez re motion to vacate judgment [69−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 06/18/2002)

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06/28/2002 07/01/2002 07/01/2002 07/02/2002 07/02/2002 07/03/2002 07/11/2002 07/23/2002 10/09/2002 11/18/2002 12/26/2002 12/15/2003 12/23/2003 04/01/2004
04/16/2004
11/18/2005 12/28/2005 12/28/2005 03/20/2006 03/29/2006

71 ORDER by Judge Susan Illston denying motion to vacate judgment [69−1] ( Date Entered: 7/1/02) (cc: all counsel) [3:00−cv−00905] (ys, COURT STAFF) (Entered: 07/01/2002)
72 NOTICE OF APPEAL by Plaintiff Ernesto G. Lira from Dist. Court decision judgment [66−2] Fee status IFP granted. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 07/02/2002)
72 DECLARATION by on behalf of Plaintiff Ernesto G. Lira re appeal [72−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 07/02/2002)
Docket fee notification form and case information sheet to USCA [72−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 07/02/2002)
Copy of notice of appeal and docket sheet to all counsel [3:00−cv−00905] (ys, COURT STAFF) (Entered: 07/02/2002)
73 DECLARATION by on behalf of Plaintiff Ernesto G. Lira re motion to vacate judgment [69−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 07/08/2002)
NOTIFICATION by Circuit Court of Appellate Docket Number 02−16325 [3:00−cv−00905] (ys, COURT STAFF) (Entered: 07/15/2002)
74 ORDER by Judge Susan Illston This appeal is not taken in good faith copy to USCA. ( Date Entered: 7/25/02) (cc: all counsel) [3:00−cv−00905] (ys, COURT STAFF) Modified on 07/25/2002 (Entered: 07/25/2002)
FILING FEE − PARTIAL PAYMENT: fee ppd on 9/25/02 in the amount of $ 5.47, receipt # 3339682. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 10/10/2002)
75 COPY of USCA Order: Appellant Ernesto G. Lira's IFP is granted. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 11/18/2002)
76 COPY of USCA Order: The answering brief due 2/10/03 and the optional reply brief is due within 14 days of service of the answering brief. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 12/27/2002)
RECORD on Appeal to USCA, cnsl notified. re appeal [72−1] [3:00−cv−00905] (ys, COURT STAFF) (Entered: 12/15/2003)
77 RECEIPT/Acknowledgment of original case file by USCA. [3:00−cv−00905] (ys, COURT STAFF) Modified on 12/23/2003 (Entered: 12/23/2003)
78 COPY of USCA Order: The Clerk shall enter an order appointing pro bono couonsel to represent appellant for purposes of this appeal only. The Clerk shall establish a supplemental briefing schedule. The appeal is stayed pending further order. If appellant objects to the court's appointment of counsel in this appeal, appellant shall file a written objection within 14 days from the dae of entry of this order. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 04/01/2004)
79 COPY of USCA Order: Appointing pro bono counsel for appellant, Warren Metlitzky, Esq. and Douglas A. Winthrop, Esq., if appellant does not object to this order in writing 14 days from the date of entry of this order, the Clerk shall amend the dockt to reflect that. Briefing schedule, see USCA order. [3:00−cv−00905] (ys, COURT STAFF) (Entered: 04/16/2004)
80 NOTICE of Change of Address, request for a copy of the docket by Ernesto G. Lira. (ys, COURT STAFF) (Filed on 11/18/2005) (Entered: 11/21/2005)
81 USCA JUDGMENT as to 72 Notice of Appeal : Reversed, Remanded. (ys, COURT STAFF) (Filed on 12/28/2005) (Entered: 12/29/2005)
83 MANDATE of USCA as to 72 Notice of Appeal: Reversed, Remanded. (ys, COURT STAFF) (Filed on 12/28/2005) (Entered: 12/29/2005)
84 Appeal Record Returned from USCA. (ys, COURT STAFF) (Filed on 3/20/2006) (Entered: 03/20/2006)
85 ORDER setting Case Management Conference: Case management conference set for 5/24/06 at 3:30 p.m.. The parties (with Lira represented by his counsel from his

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04/19/2006 05/12/2006 05/12/2006 05/12/2006 05/25/2006
05/25/2006 06/28/2006 06/28/2006 06/28/2006 06/28/2006 06/29/2006 07/20/2006
07/21/2006
07/21/2006

appeal) must file a joint case management statement no later than 5/2/06. The clerk shall serve a copy of this order on defense counsel, plaintiff and attorney Douglas Winthrop at the Howard Rice law firm (cc: Douglas Winthrop). Signed by Judge Susan Illston on 3/24/06. (ys, COURT STAFF) (Filed on 3/29/2006) (Entered: 03/30/2006)
86 NOTICE of Change of Address by Ernesto G. Lira. (ys, COURT STAFF) (Filed on 4/19/2006) (Entered: 04/20/2006)
87 MOTION to Appoint Counsel filed by Ernesto G. Lira. (ys, COURT STAFF) (Filed on 5/12/2006) (Entered: 05/12/2006)
88 Declaration by plaintiff in Support of 87 MOTION to Appoint Counsel filed byErnesto G. Lira. (Related document(s) 87 ) (ys, COURT STAFF) (Filed on 5/12/2006) (Entered: 05/12/2006)
89 JOINT CASE MANAGEMENT STATEMENT filed by Ernesto G. Lira. (ys, COURT STAFF) (Filed on 5/12/2006) (Entered: 05/12/2006)
90 Minute Entry: Further Case Management Conference held on 5/25/2006 before Susan Illston (Date Filed: 5/25/2006). Further case management conference set for 8/18/06 at 2:30 p.m., Motion due 6/28/06, Motion hearing set for 8/18/06 at 9:00 a.m.. Petitioner's motion for appointment of counsel is denied without prejudice at this time and should be terminated from the pending motion report. (Court Reporter None.) (ys, COURT STAFF) (Date Filed: 5/25/2006) (Entered: 05/25/2006)
Set Deadlines/Hearings: Motions due by 6/28/2006. Case Management Conference set for 8/18/2006 02:30 PM. Motion Hearing set for 8/18/2006 09:00 AM. (ys, COURT STAFF) (Filed on 5/25/2006) (Entered: 05/25/2006)
91 MOTION to Amend/Correct Complaint filed by Ernesto G. Lira. Motion Hearing set for 8/18/2006 09:00 AM. (ys, COURT STAFF) (Filed on 6/28/2006) (Entered: 06/29/2006)
Proposed Order re 91 MOTION to Amend/Correct complaint by Ernesto G. Lira. (ys, COURT STAFF) (Filed on 6/28/2006) (Entered: 06/29/2006)
Received Document First Amended Complaint by Ernesto G. Lira. (ys, COURT STAFF) (Filed on 6/28/2006) (Entered: 06/29/2006)
100 First AMENDED COMPLAINT against all defendants. Filed byErnesto G. Lira. (ys, COURT STAFF) (Filed on 6/28/2006) (ys, COURT STAFF). (Entered: 08/31/2006)
92 CERTIFICATE OF SERVICE by Ernesto G. Lira re 91 MOTION to Amend/Correct , proposed order, first amended complaint. (ys, COURT STAFF) (Filed on 6/29/2006) (Entered: 06/29/2006)
Received Document Stipulation and proposed order extending opposition and reply brief filing dates and rescheduling hearing date on plaintiff's motion to amend complaint by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, Fielder, M. Piland, J. Briddle. (ys, COURT STAFF) (Filed on 7/20/2006) (Entered: 07/20/2006)
93 STIPULATION AND ORDER EXTENDING OPPOSITION AND REPLY BRIEF FILING DATES AND RESCHEDULING HEARING DATE ON PLAINTIFF'S MOTION TO AMEND COMPLAINT. IT IS SO ORDERED. 1. Defendant's opposition to Plaintiff's motion to amend is due on or before August 4, 2006. 2. Plaintiff's reply brief in support of the motion to amend is due on or before August 11, 2006. 3. The hearing on Plaintiff's motion to amend is moved to September 1, 2006. The Case Management Shall be Continued to 09/01/069 @ 2:30 p.m. Signed by Judge Susan Illston on 07/21/06. (aaa, Court Staff) (Filed on 7/21/2006) (Entered: 07/25/2006)
Set Deadlines/Hearings: Case Management Conference Continued for 9/1/2006 02:30 PM. Re 93 Stipulation and Order (aaa, Court Staff) (Filed on 7/21/2006) (Entered: 07/25/2006)

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07/21/2006 07/26/2006 07/27/2006 08/02/2006 08/04/2006
08/11/2006 08/29/2006 09/06/2006
09/06/2006 09/13/2006 09/13/2006 09/21/2006 10/02/2006 10/05/2006 10/05/2006

Set/Reset Deadlines as to 91 MOTION to Amend/Correct. Motion Hearing Continued for 9/1/2006 09:00 AM. Re 93 Stipulation and Order (aaa, Court Staff) (Filed on 7/21/2006) (Entered: 07/25/2006)
94 NOTICE by Ernesto G. Lira Notification of Association (Hallman, Robert) (Filed on 7/26/2006) (Entered: 07/26/2006)
95 CLERK'S NOTICE re: Document(s) re 94 Notice of Association E−Filed in a case not designated for ECF. Sent by U.S. Mail a copy of the Clerk's Notice to Plaintiff(s) Attorney Robert Hallman (aaa, Court Staff) (Filed on 7/27/2006) (Entered: 07/27/2006)
96 CERTIFICATE OF SERVICE by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, Fielder, M. Piland, J. Briddle re 93 Stipulation and Order,, (aaa, Court Staff) (Filed on 8/2/2006) (Entered: 08/04/2006)
97 OPPOSITION to Plaintiff's re 91 MOTION to Amend/Correct Complaint Filed by Defendants A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, Fielder, M. Piland & J. Briddle. (Related document(s) 91 ). (tn, COURT STAFF) (Filed on 8/4/2006) (Entered: 08/09/2006)
98 Reply Memorandum of Points and Authorites in support of re 91 MOTION to Amend/Correct filed byErnesto G. Lira. (ys, COURT STAFF) (Filed on 8/11/2006) (Entered: 08/15/2006)
99 ORDER by Judge Susan Illston granting 91 Motion to Amend/Correct the complaint. The First Amended Complaint received on 6/28/06 shall be deemed filed. The Court denies defendants'request to stay this action as moot. (ys, COURT STAFF) (Filed on 8/29/2006) (Entered: 08/30/2006)
101 Minute Entry: Further Case Management Conference held on 9/1/2006 before Illston (Date Filed: 9/6/2006). Case continued to 1/19/07 @ 2:30 p.m. for Further Case Management Conference(joint statement due one week prior)Discovery Cutoff: 2/16/07 ORDERED AFTER HEARING: The parties shall proceed with discovery.() (ts, COURT STAFF) (Date Filed: 9/6/2006) (Entered: 09/06/2006)
Set Deadlines/Hearings: Case Management Conference set for 1/19/2007 02:30 PM. (ys, COURT STAFF) (Filed on 9/6/2006) (Entered: 09/07/2006)
102 NOTICE of Reassignment of Counsel to Scott J. Feudale by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, Fielder, M. Piland, J. Briddle. (ys, COURT STAFF) (Filed on 9/13/2006) (Entered: 09/14/2006)
103 Waiver of Reply and DEMAND for Trial by Jury by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, Fielder, M. Piland, J. Briddle. (ys, COURT STAFF) (Filed on 9/13/2006) (Entered: 09/14/2006)
Summons on First Amended Complaint Issued as to R. Pederson, D Smith, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager. (ys, COURT STAFF) (Filed on 9/21/2006) (Entered: 09/21/2006)
Summons Issued as to K. Mann. (ys, COURT STAFF) (Filed on 10/2/2006) (Entered: 10/02/2006)
104 SUMMONS Returned Executed K. Mann served on 10/3/2006, answer due 10/23/2006. (ys, COURT STAFF) (Filed on 10/5/2006) (Entered: 10/06/2006)
105 SUMMONS Returned Executed R. Pederson served on 9/22/2006, answer due 10/12/2006; D Smith served on 9/22/2006, answer due 10/12/2006; J. Cox served on 9/22/2006, answer due 10/12/2006; B. O'Neill served on 9/22/2006, answer due 10/12/2006; Steve R. Moore served on 9/22/2006, answer due 10/12/2006; K. Slatten served on 9/22/2006, answer due 10/12/2006; L. Olivas served on 9/22/2006, answer due 10/12/2006; P. S. Nowling served on 9/22/2006, answer due 10/12/2006; S. Dwight served on 9/22/2006, answer due 10/12/2006; M. Day served on 9/22/2006,

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10/12/2006
10/23/2006 10/23/2006 10/23/2006 10/23/2006 12/04/2006 12/05/2006 12/06/2006 12/21/2006 12/21/2006 12/29/2006
01/08/2007 01/12/2007 01/22/2007

answer due 10/12/2006; J. Maykel served on 9/22/2006, answer due 10/12/2006; Teresa Schwartz served on 9/22/2006, answer due 10/12/2006; Richard Kirkand served on 9/22/2006, answer due 10/12/2006; Victor Almager served on 9/22/2006, answer due 10/12/2006. (ys, COURT STAFF) (Filed on 10/5/2006) (Entered: 10/06/2006)
106 ANSWER to 100 First Amended Complaint byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, R. Pederson, D Smith, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, Fielder, M. Piland, J. Briddle. (ys, COURT STAFF) (Filed on 10/12/2006) (Entered: 10/13/2006)
107 MOTION to Dismiss; Memorandum of Points and Authorities filed by K. Mann. Motion Hearing set for 1/12/2007 09:00 AM. (ys, COURT STAFF) (Filed on 10/23/2006) (Entered: 10/24/2006)
108 Declaration of S. Feudale in Support of 107 MOTION to Dismiss filed byK. Mann. (Related document(s) 107 ) (ys, COURT STAFF) (Filed on 10/23/2006) (Entered: 10/24/2006)
109 Declaration of J. Wolff in Support of 107 MOTION to Dismiss filed byK. Mann. (Related document(s) 107 ) (ys, COURT STAFF) (Filed on 10/23/2006) (Entered: 10/24/2006)
Proposed Order re 107 MOTION to Dismiss by K. Mann. (ys, COURT STAFF) (Filed on 10/23/2006) (Entered: 10/24/2006)
Received Document Substitution of Counsel by Ernesto G. Lira. (ys, COURT STAFF) (Filed on 12/4/2006) (Entered: 12/04/2006)
110 ORDER granting plaintiff's substitution of counsel to William B. Champman, Esq..(ys, COURT STAFF) (Filed on 12/5/2006) (Entered: 12/06/2006)
111 CLERK'S NOTICE re Inclusion of Case Into E−Filing Program. (ys, COURT STAFF) (Filed on 12/6/2006) (Entered: 12/06/2006)
112 Memorandum in Opposition to 107 Motion to Dismiss K. Mann filed byErnesto G. Lira. (Chapman, William) (Filed on 12/21/2006) Modified on 12/27/2006 (ys, COURT STAFF). (Entered: 12/21/2006)
113 Declaration of William B. Chapman in Support of 112 Memorandum in Opposition to Motion to Dismiss K. Mann filed byErnesto G. Lira. (Attachments: # 1 Exhibit Exh A# 2 Exhibit Exh B# 3 Exhibit Exh C)(Related document(s) 112 ) (Chapman, William) (Filed on 12/21/2006) (Entered: 12/21/2006)
114 Defendant Mann's Reply to 112 Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant Mann's Motion to Dismiss filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, Director of Corrections of the State of California, R. Pederson, D Smith, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 12/29/2006) Modified on 1/3/2007 (ys, COURT STAFF). (Entered: 12/29/2006)
115 ORDER denying 107 defendant Mann's motion to dismiss (SI, COURT STAFF) (Filed on 1/8/2007) (Entered: 01/08/2007)
116 JOINT CASE MANAGEMENT STATEMENT filed by Defendants and filed by Ernesto G. Lira. (Chapman, William) (Filed on 1/12/2007) (Entered: 01/12/2007)
117 Minute Entry: Further Case Management Conference held on 1/19/2007 before Illston (Date Filed: 1/22/2007). Case continued to 7/13/07 @ 2:30 p.m. for Further Case Management Conference (joint statement due one week prior)Case continued 10/12/07 @ 9:00 a.m. for motions (file 9/7/07, opposition 21/07, reply 9/28/07)Case continued to 11/13/07 @ 3:30 p.m. for Pretrial ConferenceCase continued to 11/26/07 @ 8:30 a.m. for Trial (: 8 Days)Discovery Cutoff: 8/31/07 Designate Experts by: 7/20/07,

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01/22/2007 01/22/2007 01/23/2007 01/23/2007
01/26/2007 02/20/2007 02/20/2007 02/20/2007 02/21/2007 02/21/2007 04/23/2007
04/23/2007

Rebuttal Experts:8/10/07, Expert Discovery Cutoff:8/31/07ORDERED AFTER HEARING: This case shall be referred to a magistrate−judge for settlement purposes. The conference shall occur in June 2007. Plaintiff may file an amendment to the complaint, naming, J. Olson, D. Schmidt and J. Tilton as a successor. Service of the complaint must be completed within 30 days.Cc: Wings (2) () (ts, COURT STAFF) (Date Filed: 1/22/2007) (Entered: 01/22/2007)
118 PRETRIAL ORDER. Signed by Judge Illston on 1/11/07. (Attachments: # 1)(ts, COURT STAFF) (Filed on 1/22/2007) (Entered: 01/22/2007)
Set Deadlines/Hearings: Motions due by 9/7/2007. Case Management Conference set for 7/13/2007 02:30 PM. Jury Trial set for 11/26/2007 08:30 AM. Motion Hearing set for 10/12/2007 09:00 AM. Pretrial Conference set for 11/13/2007 03:30 PM. (ys, COURT STAFF) (Filed on 1/22/2007) (Entered: 01/23/2007)
CASE REFERRED to Magistrate Judge Elizabeth D. Laporte for Settlement (wh, COURT STAFF) (Filed on 1/23/2007) (Entered: 01/23/2007)
119 Answer to 100 Amended Complaint DEFENDANT K. MANN'S ANSWER TO PLAINTIFF'S AMENDED COMPLAINT; DEMAND FOR JURY TRIAL bypizzella, Don Waite, A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, D. Best, Ernesto G. Lira, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, Director of Corrections of the State of California, R. Pederson, D Smith, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 1/23/2007) Modified on 1/24/2007 (ys, COURT STAFF). (Entered: 01/23/2007)
120 AMENDED DOCUMENT by Ernesto G. Lira. Amendment to First Amended Complaint Under the Civil Rights Act, 42 U.S.C. Sec. 1983. (Chapman, William) (Filed on 1/26/2007) (Entered: 01/26/2007)
121 MOTION for Extension of Time to File Proof of Service of Summons and Complaint Upon Defendant Schmidt filed by Ernesto G. Lira. (White, Mark) (Filed on 2/20/2007) (Entered: 02/20/2007)
122 Proposed Order Granting Plaintiff's Motion for Extension of Time to Serve Defendant Schmidt by Ernesto G. Lira. (White, Mark) (Filed on 2/20/2007) (Entered: 02/20/2007)
Summons Issued as to James E. Tilton, Judy Olson, Donald Schmidt. (ys, COURT STAFF) (Filed on 2/20/2007) (Entered: 02/21/2007)
123 ORDER granting extension to serve defts.. Signed by Judge Illston on 2/21/07. (ts, COURT STAFF) (Filed on 2/21/2007) (Entered: 02/21/2007)
124 NOTICE OF SETTLEMENT CONFERENCE AND ORDER − Settlement Conference set for 6/8/2007 09:00 AM. Signed by Judge Elizabeth D. Laporte on 2/21/07. (lmh, COURT STAFF) (Filed on 2/21/2007) (Entered: 02/21/2007)
125 MOTION to Dismiss Notice of Motion, Motion to Dismiss, and Motion for Judgment on the Pleadings filed by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, Director of Corrections of the State of California, R. Pederson, D Smith, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, Don Waite, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. Motion Hearing set for 6/29/2009 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Feudale, Scott) (Filed on 4/23/2007) (Entered: 04/23/2007)
126 Proposed Order [Proposed] Order Granting Defendants' Motion to Dismiss and Motion for Judgment on the Pleadings by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, Director of Corrections of the State of California, R. Pederson, D Smith, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, Don Waite, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 4/23/2007) (Entered: 04/23/2007)

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04/23/2007
05/10/2007 05/11/2007 05/11/2007 05/21/2007 05/21/2007 06/04/2007 06/08/2007 06/08/2007 06/15/2007
07/02/2007 07/03/2007 07/06/2007
07/13/2007

127 DEFENDANT TILTON'S ANSWER to 100 First Amended Complaint ; DEMAND FOR JURY TRIAL byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, Director of Corrections of the State of California, R. Pederson, D Smith, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, Don Waite, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 4/23/2007) Modified on 4/24/2007 (ys, COURT STAFF). (Entered: 04/23/2007)
128 ORDER re: discovery dispute. Signed by Judge Illston on 5/10/07. (SI, COURT STAFF) (Filed on 5/10/2007) (Entered: 05/10/2007)
129 Letter Brief filed byErnesto G. Lira. (White, Mark) (Filed on 5/11/2007) (Entered: 05/11/2007)
130 Letter Brief filed byDirector of Corrections of the State of California. (White, Mark) (Filed on 5/11/2007) (Entered: 05/11/2007)
131 Joint MOTION for Protective Order filed by Ernesto G. Lira. Motion Hearing set for 6/29/2007 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (White, Mark) (Filed on 5/21/2007) (Entered: 05/21/2007)
132 PROTECTIVE ORDER. Signed by Judge Illston on 5/18/07. (ts, COURT STAFF) (Filed on 5/21/2007) (Entered: 05/21/2007)
133 ORDER EXCUSING ATTENDANCE AT SETTLEMENT CONFERENCE. Signed by Magistrate Judge Elizabeth D. Laporte on June 4, 2007. (edllc2, COURT STAFF) (Filed on 6/4/2007) (Entered: 06/04/2007)
134 Memorandum in Opposition to 125 defendants' motion to dismiss and motion for judgment on the pleadings filed byErnesto G. Lira. (White, Mark) (Filed on 6/8/2007) Modified on 6/11/2007 (ys, COURT STAFF). (Entered: 06/08/2007)
135 Minute Entry: Settlement Conference held with Magistrate Judge Laporte on 6/8/2007. Case did not settle. Further Settlement Conference to be scheduled. (lmh, COURT STAFF) (Date Filed: 6/8/2007) (Entered: 06/11/2007)
136 Defendants' Reply in Support of 125 Defendants' Motion to Dismiss, and Motion for Judgment on the Pleadings filed by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, R. Pederson, D Smith, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. Motion Hearing set for 6/29/2007 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Feudale, Scott) (Filed on 6/15/2007) Modified on 6/19/2007 (ys, COURT STAFF). (Entered: 06/15/2007)
137 Minute Entry: Motion Hearing held on 6/29/2007 before Illston (Date Filed: 7/2/2007). (Court Reporter S. Wilson.) (ts, COURT STAFF) (Date Filed: 7/2/2007) (Entered: 07/02/2007)
138 ORDER by Judge Illston granting in part and denying in part 125 Motion to Dismiss and Motion for Judgment on the Pleadings (SI, COURT STAFF) (Filed on 7/3/2007) (Entered: 07/03/2007)
139 JOINT CASE MANAGEMENT STATEMENT and PROPOSED ORDER filed by pederson, richard, A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 7/6/2007) (Entered: 07/06/2007)
140 Answer to 120 First Amended Complaint Defendant's Olsen and Schmidt's Answer to Plaintiff's First Amended Complaint byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 27 of 61

07/13/2007
07/16/2007 07/16/2007 07/20/2007
08/07/2007 08/07/2007 08/13/2007 08/21/2007
08/21/2007 09/12/2007 09/17/2007 09/17/2007 09/18/2007

Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, Don Waite, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 7/13/2007) Modified on 7/16/2007 (ys, COURT STAFF). (Entered: 07/13/2007)
141 CERTIFICATE OF SERVICE by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, Don Waite, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle re 140 Answer to Amended Complaint,, Certificate of Service (Feudale, Scott) (Filed on 7/13/2007) (Entered: 07/13/2007)
142 Minute Entry: Further Case Management Conference held on 7/13/2007 before Illston (Date Filed: 7/16/2007). case continued to 8/17/07Discovery cutoff extended to 9/28/07. () (ts, COURT STAFF) (Date Filed: 7/16/2007) (Entered: 07/16/2007)
Set Deadlines/Hearings: Case Management Conference set for 8/17/2007 02:30 PM. (ys, COURT STAFF) (Filed on 7/16/2007) (Entered: 07/17/2007)
143 STIPULATION AND [PROPOSED] ORDER Joint Stipulation to Extend the Remaining Court Ordered Deadlines by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 7/20/2007) Modified on 7/25/2007 (aaa, Court Staff). (Entered: 07/20/2007)
144 STIPULATION AND ORDER to extend the remaining deadlines. Signed by Judge Susan Illston on 08/06/07. (rbe, COURT STAFF) (Filed on 8/7/2007) (Entered: 08/07/2007)
Set Deadlines/Hearings: Motions due by 10/5/2007. Jury Trial set for 1/7/2008 08:30 AM. Motion Hearing set for 11/9/2007 09:00 AM. Pretrial Conference set for 12/11/2007 03:30 PM. (ys, COURT STAFF) (Filed on 8/7/2007) (Entered: 08/08/2007)
145 JOINT CASE MANAGEMENT STATEMENT filed by defendants and filed by Ernesto G. Lira. (Chapman, William) (Filed on 8/13/2007) (Entered: 08/13/2007)
146 Minute Entry: Further Case Management Conference held on 8/17/2007 before Illston (Date Filed: 8/21/2007). Case continued to 11/30/07 @ 9:00 a.m. for Motions(file 10/26/07, Oppo 11/9/07, Reply 11/16/07Case continued to 12/18/07 @ 3:30 p.m. for Pretrial Conference (Pretrial filings due 12/11/07)ORDERED AFTER HEARING: Designate Experts: 10/1/07, Expert Discovery Cutoff: 10/19/07 () (ts, COURT STAFF) (Date Filed: 8/21/2007) (Entered: 08/21/2007)
Set Deadlines/Hearings: Motions due by 10/26/2007. Motion Hearing set for 11/30/2007 09:00 AM. Pretrial Conference set for 12/18/2007 03:30 PM. (ys, COURT STAFF) (Filed on 8/21/2007) (Entered: 08/22/2007)
147 STIPULATION to Continue Further Settlement Conference by Ernesto G. Lira. (Chapman, William) (Filed on 9/12/2007) (Entered: 09/12/2007)
148 JOINT STIPULATION AND ORDER to Continue Settlement Conference.Signed by Judge Elizabeth D. Laporte on 9/14/07. (lmh, COURT STAFF) (Filed on 9/17/2007) (Entered: 09/17/2007)
149 NOTICE AND ORDER SETTING FURTHER SETTLEMENT CONFERENCE for 12/5/2007 09:30 AM.Signed by Judge Elizabeth D. Laporte on 9/17/07. (lmh, COURT STAFF) (Filed on 9/17/2007) (Entered: 09/17/2007)
150 NOTICE by Ernesto G. Lira of Manual Filing of Letter Brief Submitted Under Seal (White, Mark) (Filed on 9/18/2007) (Entered: 09/18/2007)

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09/18/2007 09/19/2007 09/20/2007 09/21/2007 09/21/2007 09/24/2007 09/24/2007 09/24/2007 09/24/2007 09/25/2007 09/25/2007
09/28/2007
09/28/2007 10/02/2007 10/24/2007 10/29/2007

157 Letter Brief filed byErnesto G. Lira. FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 9/18/2007) (Entered: 09/26/2007)
151 STIPULATION and Order Authorizing Filing of Discovery Letter Brief, Including Attachments Under Seal by Ernesto G. Lira. (White, Mark) (Filed on 9/19/2007) (Entered: 09/19/2007)
152 ORDER denying stipulation to seal absent a showing of cause. Signed by Judge Illston on 9/20/07. (ts, COURT STAFF) (Filed on 9/20/2007) (Entered: 09/20/2007)
153 Declaration of Mark A. White in Support of Stipulation for Order Sealing Letter Brief filed byErnesto G. Lira. (White, Mark) (Filed on 9/21/2007) (Entered: 09/21/2007)
154 STIPULATION Resubmitted Stipulation and Order Authorizing Filing of Discovery Letter Brief, Including Attachments Under Seal by Ernesto G. Lira. (White, Mark) (Filed on 9/21/2007) (Entered: 09/21/2007)
158 Letter dated 9/24/07 from Scott J. Feudale to the Hon. Susan Illston. FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 9/24/2007) (Entered: 09/27/2007)
159 Declaration of E. Fisher in support of defendants' opposition to plaintiff's request to contact confidential informant filed bydefendants. FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 9/24/2007) (Entered: 09/27/2007)
160 Declaration of S. Feudale in support of defenants' opposition to plaintiff's request to contact a confidential informant filed bydefendants. FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 9/24/2007) (Entered: 09/27/2007)
161 Declaration of Service by Overnight Courier 159 Declaration in Support, 160 Declaration in Support, 158 Letter. (ys, COURT STAFF) (Filed on 9/24/2007) (Entered: 09/27/2007)
155 ORDER granting leave to file under seal. Signed by Judge Illston on 9/24/07. (ts, COURT STAFF) (Filed on 9/25/2007) (Entered: 09/25/2007)
156 JOINT CASE MANAGEMENT STATEMENT and Proposed Order filed by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, Ernesto G. Lira, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 9/25/2007) (Entered: 09/25/2007)
162 Minute Entry: Further Case Management Conference held on 9/26/2007 before Illston (Date Filed: 9/28/2007). Case continued to 9/27/07 @ 3:00 p.m. for Further StatusCase continued to 1/4/08 @ 9:00 a.m. for motions(file 11/30/07, oppos12/14/07, reply 12/21/07)Case continued to 1/22/08 @ 3:30 p.m. for pretrial conferencePretrial filings due: 1/15/08Case continued to 2/4/08 @ 8:30 a.m. for jury trialDiscovery Cutoff extended to: 10/26/07, Expert Discovery Cutoff: 11/16/07ORDERED AFTER HEARING: Counsel shall brief the legal issues in dispute via letter briefs. The moving letter shall be filed on 10/29/07, the response shall be filed on 11/9/07 and any reply shall be filed on 11/15/07. The Court will rule on the legal issues prior to the dispositive motion cutoff date of 11/26/07.The Court granted plaintiff request to increase the number of non expert depositions to 15 in addition to expert depositions. () (ts, COURT STAFF) (Date Filed: 9/28/2007) (Entered: 09/28/2007)
Set Deadlines/Hearings: Motions due by 11/30/2007. Jury Trial set for 2/4/2008 08:30 AM. Motion Hearing set for 1/4/2008 09:00 AM. Pretrial Conference set for 1/22/2008 03:30 PM. (ys, COURT STAFF) (Filed on 9/28/2007) (Entered: 10/01/2007)
163 PRETRIAL ORDER. Signed by Judge Illston on 9/28/07. (Attachments: # 1)(ts, COURT STAFF) (Filed on 10/2/2007) (Entered: 10/02/2007)
164 STIPULATION Joint Stipulation and [Proposed] Order to Further Extend the Remaining Court Ordered Deadlines by Ernesto G. Lira. (White, Mark) (Filed on 10/24/2007) (Entered: 10/24/2007)
165 ORDER continuing trial schedule. Signed by Judge Illston on 10/29/07. (ts, COURT STAFF) (Filed on 10/29/2007) (Entered: 10/29/2007)

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 29 of 61

10/29/2007 10/31/2007 10/31/2007 11/01/2007 11/05/2007
11/05/2007
11/05/2007
11/05/2007 11/05/2007 11/05/2007 11/05/2007 11/06/2007 11/07/2007 11/07/2007

Set Deadlines/Hearings: Motions due by 1/11/2008. Jury Trial set for 3/10/2008 08:30 AM. Motion Hearing set for 2/8/2008 09:00 AM. Pretrial Conference set for 2/27/2008 03:30 PM. (ys, COURT STAFF) (Filed on 10/29/2007) (Entered: 10/30/2007)
166 Letter Brief Application for Order Authorizing Filing of Discovery Letter Brief; Including Attachments, Under Seal; Supporting Declaration of Counsel; [Proposed] Order filed byErnesto G. Lira. (White, Mark) (Filed on 10/31/2007) (Entered: 10/31/2007)
168 Letter Brief filed byErnesto G. Lira. FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 10/31/2007) (Entered: 11/02/2007)
167 ORDER sealing. Signed by Judge Illston on 10/31/07. (ts, COURT STAFF) (Filed on 11/1/2007) (Entered: 11/01/2007)
169 MOTION to Seal Document Motion to File Defendants' Letter Brief Dated November 5, 2007, including Supporting Declarations and Exhibits, Under Seal filed by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 11/5/2007) (Entered: 11/05/2007)
170 Declaration of Scott Feudale in Support of 169 Defendants' Motion to File Defendants' Letter Brief Dated November 5, 2007, Under Seal filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 11/5/2007) Modified on 11/6/2007 (ys, COURT STAFF). (Entered: 11/05/2007)
171 Proposed Order 169 Granting Defendants' Motion to File Their Letter Brief Dated November 5, 2007 Under Seal in its Entirety by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 11/5/2007) Modified on 11/6/2007 (ys, COURT STAFF). (Entered: 11/05/2007)
173 Letter addressed to the Honorable Susan Illston by defendants. FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 11/5/2007) (Entered: 11/07/2007)
174 Declaration of Everett Fischer in support of 173 defendants' opposition to plaintiff's request to contact a confidential information filed bydefendants. FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 11/5/2007) (Entered: 11/07/2007)
175 Declaration of Scott Feudale in support of defendants' opposition to plaintiff's request to remove the confidential designation from produced documents w/Exhibits A thru G filed bydefendants. FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 11/5/2007) (Entered: 11/07/2007)
176 CERTIFICATE OF SERVICE re 174 Declaration in Support, 175 Declaration in Support, 173 Letter . FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 11/5/2007) (Entered: 11/07/2007)
172 ORDER by Judge Illston granting 169 Motion to Seal Document (ts, COURT STAFF) (Filed on 11/6/2007) (Entered: 11/06/2007)
177 Minute Entry: Status Conference (Date Filed: 11/7/2007). () (ts, COURT STAFF) (Date Filed: 11/7/2007) (Entered: 11/07/2007)
178 Proposed Order Removing Confidential−Material Designations From Discovery Documents by Ernesto G. Lira. (White, Mark) (Filed on 11/7/2007) (Entered: 11/07/2007)

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11/08/2007
11/13/2007 11/26/2007 11/30/2007 12/04/2007
12/04/2007
12/04/2007
12/05/2007 12/06/2007 12/06/2007 12/06/2007 12/06/2007 12/07/2007

179 Letter Brief filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 11/8/2007) (Entered: 11/08/2007)
180 Letter Brief filed byErnesto G. Lira. (White, Mark) (Filed on 11/13/2007) (Entered: 11/13/2007)
181 Brief Re Legal Basis for Relief Sought by First Amended Complaint filed byErnesto G. Lira. (White, Mark) (Filed on 11/26/2007) (Entered: 11/26/2007)
187 Minute Entry: Telephone Conference held on 11/30/2007 with Magistrate Judge Laporte re attendance at Further Settlement Conference. (FTR 9:47am − 10:08am) (lmh, COURT STAFF) (Date Filed: 11/30/2007) (Entered: 12/06/2007)
182 Ex Parte MOTION for Extension of Time to File Defendants' Ex Parte Request for Extension of Time Extending the Remaining Court−Ordered Deadlines filed by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 12/4/2007) (Entered: 12/04/2007)
183 Declaration of Scott J. Feudale in Support of 182 Ex Parte MOTION for Extension of Time to File Defendants' Ex Parte Request for Extension of Time Extending the Remaining Court−Ordered Deadlines filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 182 ) (Feudale, Scott) (Filed on 12/4/2007) (Entered: 12/04/2007)
184 Proposed Order re 182 Ex Parte MOTION for Extension of Time to File Defendants' Ex Parte Request for Extension of Time Extending the Remaining Court−Ordered Deadlines Proposed Order Extending the Remaining Court−Ordered Deadlines by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 12/4/2007) (Entered: 12/04/2007)
188 Minute Entry: Settlement Conference held with Magistrate Judge Laporte on 12/5/2007. Case did not settle. Court to issue followup order. (lmh, COURT STAFF) (Date Filed: 12/5/2007) (Entered: 12/06/2007)
185 OBJECTIONS to and Request to Strike Defendants' Ex−Parte Motion for Trial Continuance by Ernesto G. Lira. (White, Mark) (Filed on 12/6/2007) (Entered: 12/06/2007)
186 ORDER by Judge Illston granting 182 Motion for Extension of Time to File ; New trial set (ts, COURT STAFF) (Filed on 12/6/2007) (Entered: 12/06/2007)
189 ORDER RE: DISCOVERY DISPUTE. The parties shall submit a proposed stipulated protective order no later than 12/14/07. Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 12/6/2007) (Entered: 12/06/2007)
Set Deadlines/Hearings: Jury Trial set for 3/24/2008 08:30 AM. Motions due by 1/25/2008. Pretrial Conference set for 3/11/2008 03:30 PM. Motion Hearing set for 2/29/2008 09:00 AM. (ys, COURT STAFF) (Filed on 12/6/2007) (Entered: 12/07/2007)
190 Letter Brief/Response re 163 Pretrial Order Letter Brief to Judge Illston Re Legal Issues in Dispute byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod,

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12/07/2007 12/07/2007 12/10/2007 12/14/2007
12/14/2007 12/17/2007 01/10/2008
01/10/2008
01/10/2008
01/10/2008

K. Mann, D. Best, Ernesto G. Lira, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, Director of Corrections of the State of California, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, Don Waite, James E. Tilton, Judy Olson, Donald Schmidt, pederson, richard, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 12/7/2007) Modified on 12/10/2007 (ys, COURT STAFF). (Entered: 12/07/2007)
191 Letter Brief to Judge Illston re new trial date filed byErnesto G. Lira. (Chapman, William) (Filed on 12/7/2007) (Entered: 12/07/2007)
193 ORDER FOLLOWING FURTHER SETTLEMENT CONFERENCE − Defendant shall submit a letter update to the Court by 12/12/2007. Further Settlement Conference set for 3/5/2008 11:00 AM. Signed by Judge Elizabeth D. Laporte on 12/7/07. (lmh, COURT STAFF) (Filed on 12/7/2007) (Entered: 12/10/2007)
192 OBJECTIONS to Defendants' Subpoena of Plaintiff's Expert Daniel B. Vasquez by Ernesto G. Lira. (Chapman, William) (Filed on 12/10/2007) (Entered: 12/10/2007)
194 MOTION for Protective Order Stipulated Protective Order Governing the Disclosure and Handling of Sensititive Documents to Plaintiff filed by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 12/14/2007) (Entered: 12/14/2007)
195 Brief In Reply Re: Legal Basis for Relief Sought by First Amended Complaint filed byErnesto G. Lira. (White, Mark) (Filed on 12/14/2007) (Entered: 12/14/2007)
196 PROTECTIVE ORDER. Signed by Judge Illston on 12/14/07. (ts, COURT STAFF) (Filed on 12/17/2007) Modified on 12/19/2007 (ewn, COURT STAFF). (Entered: 12/17/2007)
197 NOTICE by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle Defendants' Notice Of Association Of Counsel For Service (O'Bannon, Danielle) (Filed on 1/10/2008) (Entered: 01/10/2008)
198 Letter Brief filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (O'Bannon, Danielle) (Filed on 1/10/2008) (Entered: 01/10/2008)
199 Declaration in Support of 198 Letter Brief, Declaration Of Danielle F. O'Bannon In Support Of Defendants' Ex Parte Letter Brief For Order To Compel The Deposition Of Plaintiff's Expert, Craig Haney, PH.D. filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 198 ) (O'Bannon, Danielle) (Filed on 1/10/2008) (Entered: 01/10/2008)
200 EXHIBITS re 199 Declaration in Support,, filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit Ex A, # 2 Exhibit Ex B, # 3 Exhibit C, # 4 Exhibit Ex D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 199 ) (O'Bannon, Danielle) (Filed on 1/10/2008) (Entered:

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201 Letter Brief filed byErnesto G. Lira. (White, Mark) (Filed on 1/14/2008) (Entered: 01/14/2008)
202 MOTION for Leave to File Excess Pages Defendants' Motion for Administrative Relief to Extend the Page Limitations of Defendants' Motion for Summary Judgment and Reply Brief filed by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 1/18/2008) (Entered: 01/18/2008)
203 Declaration of Scott J. Feudale in Support of 202 MOTION for Leave to File Excess Pages Defendants' Motion for Administrative Relief to Extend the Page Limitations of Defendants' Motion for Summary Judgment and Reply Brief filed byA. Scribner, J. Stokes, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 202 ) (Feudale, Scott) (Filed on 1/18/2008) (Entered: 01/18/2008)
204 *** FILED IN ERROR. PLEASE SEE DOCKET # 206 . *** EXHIBITS re 203 Declaration in Support,, Exhibit A to the Declaration of Scott J. Feudale in Support of Defendants' Motion for Administrative Relief to Extend the page Limitations of Defendants' Motion for Summary Judgment and Reply Brief filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, D. Best, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 203 ) (Feudale, Scott) (Filed on 1/18/2008) Modified on 1/18/2008 (ewn, COURT STAFF). (Entered: 01/18/2008)
205 Proposed Order Granting 202 Defendants' Motion for Administrative Relief to Extend the Page Limiations of Defendants' Motion for Summary Judgment and Reply Brief by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 1/18/2008) Modified on 1/22/2008 (ys, COURT STAFF). (Entered: 01/18/2008)
206 EXHIBITS re 203 Declaration in Support,, Exhibit A to Declaration of Scott J. Feudale in Support of Defendants' Motion for Administrative Relief to Extend the Page Limitations of Defendants' Motion for Summary Judgment and Reply Brief filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 203 ) (Feudale, Scott) (Filed on 1/18/2008) (Entered: 01/18/2008)
207 Memorandum in Opposition to 202 Defendants' Administrative Motion for Page−Limit Briefing Extensions on Their Planned Summary Judgment Motion filed byErnesto G. Lira. (Attachments: # 1 Exhibit)(White, Mark) (Filed on 1/18/2008) Modified on 1/22/2008 (ys, COURT STAFF). (Entered: 01/18/2008)
208 ORDER by Judge Illston granting 202 Motion for Leave to File Excess Pages (ts, COURT STAFF) (Filed on 1/24/2008) (Entered: 01/24/2008)
209 Defendants' Memorandum of Points and Authorities in Support of 249 their Motion for Summary Judgment filed by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J.

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Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. Motion Hearing set for 2/29/2008 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Feudale, Scott) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
210 Declaration of Scott J. Feudale in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment Declaration of Scott J. Feudale in Support of Defendants' Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 249 ) (Feudale, Scott) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
211 Declaration of Edward S. Alameida in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
212 Declaration of Victor Almager in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
213 Declaration of Darin W. Bradbury in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
214 Declaration of Cheryl Bolles in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
215 Declaration of Jeffrey M. Briddle in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J.

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Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
216 Declaration of Donald D. Bruce in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
217 Declaration of Donald R. Busser in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
218 Declaration of Jose Chavez in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
219 Declaration of James R. Cox in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
220 Declaration of Kenneth R. Cruse in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
221 Declaration of Monte K. Day in Support of 249 MOTION for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C.

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Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
222 Declaration of Steven P. Dwight in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
223 Declaration of Brian Fielder in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
224 EXHIBITS re 210 Declaration in Support,,, filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit B, # 2 Exhibit C (part 1 of 3), # 3 Exhibit C (Part 2 of 2), # 4 Exhibit C (Part 3 of 3), # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I ( Part 1 of 4), # 11 Exhibit I (Part 2 of 4), # 12 Exhibit I (Part 3 of 4), # 13 Exhibit I (Part 4 of 4), # 14 Exhibit I − Redacted Portion filed Under Seall, # 15 Exhibit J (Part 1 of 3), # 16 Exhibit J (Part 2 of 3), # 17 Exhibit J (Part 3 of 3))(Related document(s) 210 ) (Feudale, Scott) (Filed on 1/25/2008) (Entered: 01/25/2008)
225 Declaration of Adam Goldyne, M.D. in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
226 Declaration of Brian Heaps in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
227 Declaration of Steve Herrera in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for

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Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
228 Declaration of Weldon J. Olmstead in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (Wolff, Jonathan) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
229 Declaration of Richard Kirkland in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
230 Declaration of Karen Mann in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
231 Declaration of Barry J. O'Neill in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A)(Related document(s) 249 ) (Wolff, Jonathan) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
232 Declaration of John E. Maykel in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
233 Declaration of Cara M. Patten in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for

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Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (Wolff, Jonathan) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
234 Declaration of Steven R. Moore in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
235 EXHIBITS re 210 Declaration in Support,,, filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit L, # 2 Exhibit M, # 3 Exhibit M − Redacted Portion filed Under Seal, # 4 Exhibit N − Filed Under Seal, # 5 Exhibit O, # 6 Exhibit 0 − Redacted portion filed Under Seal, # 7 Exhibit P, # 8 Exhibit Q, # 9 Exhibit R, # 10 Exhibit S (part 1 of 2), # 11 Exhibit S (part 2 of 2), # 12 Exhibit T, # 13 Exhibit U, # 14 Exhibit V, # 15 Exhibit W, # 16 Exhibit X, # 17 Exhibit Y, # 18 Exhibit Z)(Related document(s) 210 ) (Feudale, Scott) (Filed on 1/25/2008) (Entered: 01/25/2008)
236 Declaration of Darlene Best−Pizzella in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 249 ) (Wolff, Jonathan) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
237 *** FILED IN ERROR. PLEASE SEE DOCKET # 257 . *** Declaration of Matthew J. Nimrod in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). Modified on 1/30/2008 (ewn, COURT STAFF). (Entered: 01/25/2008)
238 Declaration of Don Schmidt in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 249 ) (Wolff, Jonathan) (Filed on

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1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
239 Declaration of Patrick S. Nowling in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
240 Declaration of Louis L. Olivas in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
241 Declaration of Allen K. Scribner in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (Wolff, Jonathan) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
242 Declaration of Robert S. Marquez in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
243 Declaration of Teresa A. Schwartz in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 249 ) (Wolff, Jonathan) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
244 Declaration of Kirsten J. Slatten in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (Wolff, Jonathan) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)

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245 Declaration of David Tristan in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
246 Declaration of John D. Stokes in Support of 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (Wolff, Jonathan) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
247 Proposed Order re 249 MOTION for Summary Judgment Defendants' Memorandum of Points and Authorities in Support of their Motion for Summary Judgment by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (O'Bannon, Danielle) (Filed on 1/25/2008) Modified on 1/28/2008 (ys, COURT STAFF). (Entered: 01/25/2008)
248 EXHIBITS re 210 Declaration in Support,,, filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit BB, # 2 Exhibit CC, # 3 Exhibit DD, # 4 Exhibit EE, # 5 Exhibit FF, # 6 Exhibit GG, # 7 Exhibit HH, # 8 Exhibit II − Filed Under Seal, # 9 Exhibit JJ, # 10 Exhibit KK, # 11 Exhibit LL, # 12 Exhibit MM, # 13 Exhibit NN, # 14 Exhibit OO, # 15 Exhibit PP, # 16 Exhibit QQ, # 17 Exhibit RR, # 18 Exhibit SS, # 19 Exhibit TT, # 20 Exhibit UU, # 21 Exhibit V V, # 22 Exhibit WW (part 1 of 2), # 23 Exhibit WW (Part 2 of 2))(Related document(s) 210 ) (Feudale, Scott) (Filed on 1/25/2008) (Entered: 01/25/2008)
249 MOTION for Summary Judgment Defendants' Notice of Motion for Summary Judgment filed by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. Motion Hearing set for 2/29/2008 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Feudale, Scott) (Filed on 1/25/2008) (Entered: 01/25/2008)
250 MOTION to Seal Defendants' Motion Motion to File Under Seal Portions of the Declarations of Scott J. Feudale and Roberts S. Marquez in Support of Defs' Motion for Summary Judgment and for In Camera Review filed by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 1/25/2008) (Entered: 01/25/2008)
251 Declaration of Scott Feudale in Support of 250 MOTION to Seal Defendants' Motion Motion to File Under Seal Portions of the Declarations of Scott J. Feudale and

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Roberts S. Marquez in Support of Defs' Motion for Summary Judgment and for In Camera Review filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 250 ) (Feudale, Scott) (Filed on 1/25/2008) (Entered: 01/25/2008)
252 Proposed Order re 250 MOTION to Seal Defendants' Motion Motion to File Under Seal Portions of the Declarations of Scott J. Feudale and Roberts S. Marquez in Support of Defs' Motion for Summary Judgment and for In Camera Review by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 1/25/2008) (Entered: 01/25/2008)
253 Declaration in Support of 250 MOTION to Seal Defendants' Motion Motion to File Under Seal Portions of the Declarations of Scott J. Feudale and Roberts S. Marquez in Support of Defs' Motion for Summary Judgment and for In Camera Review filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 250 ) (Feudale, Scott) (Filed on 1/25/2008) (Entered: 01/25/2008)
254 Declaration of Robert S. Marquez in Support of 250 MOTION to Seal Defendants' Motion Motion to File Under Seal Portions of the Declarations of Scott J. Feudale and Roberts S. Marquez in Support of Defs' Motion for Summary Judgment and for In Camera Review filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland. (Related document(s) 250 ) (Feudale, Scott) (Filed on 1/25/2008) (Entered: 01/25/2008)
255 ORDER DENYING DEFENDANTS REQUEST TO MODIFY PRETRIAL AND TRIAL SCHEDULE: If defendants wish to file a supplemental summary judgment brief regarding Dr. Haney's deposition testimony due is 2/20/08 and plaintiff may file a response to same no later than 2/27/08. Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 1/28/2008) (Entered: 01/28/2008)
258 Declaration of Scott J. Feudale in Support of 249 MOTION for Summary Judgment Defendants' Notice of Motion for Summary Judgment filed bydefendants. FILED UNDER SEAL. (Related document(s) 249 ) (ys, COURT STAFF) (Filed on 1/28/2008) (Entered: 01/30/2008)
259 EXHIBIT H re 258 Declaration of Scott J. Feudale in Support filed byby defendants. FILED UNDER SEAL. (Related document(s) 258 ) (ys, COURT STAFF) (Filed on 1/28/2008) (Entered: 01/30/2008)
260 EXHIBIT N re 258 Declaration of Scott J. Feudale in Support filed bydefendants. FILED UNDER SEAL. (Related document(s) 258 ) (ys, COURT STAFF) (Filed on 1/28/2008) (Entered: 01/30/2008)
261 EXHIBIT II re 258 Declaration in Support filed bydefendants. FILED UNDER SEAL. (Related document(s) 258 ) (ys, COURT STAFF) (Filed on 1/28/2008) (Entered: 01/30/2008)
262 Declaration of Robert S. Marquez in Support of 249 MOTION for Summary Judgment Defendants' Notice of Motion for Summary Judgment filed byby defendants. FILED UNDER SEAL. (Related document(s) 249 ) (ys, COURT STAFF) (Filed on 1/28/2008) (Entered: 01/30/2008)

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01/31/2008 02/05/2008 02/07/2008
02/08/2008 02/08/2008 02/08/2008 02/08/2008

263 EXHIBIT M (Redacted Portion) filed bydefendants. FILED UNDER SEAL. (ys, COURT STAFF) (Filed on 1/28/2008) (Entered: 01/30/2008)
264 EXHIBIT O (Redacted Portion) filed bydefendants. FILED UNDER SEAL.(ys, COURT STAFF) (Filed on 1/28/2008) (Entered: 01/30/2008)
265 EXHIBIT I (Redacted Portion) filed bydefendants. FILED UNDER SEAL.(ys, COURT STAFF) (Filed on 1/28/2008) (Entered: 01/30/2008)
256 ORDER by Judge Illston granting 250 Motion to Seal (ts, COURT STAFF) (Filed on 1/29/2008) (Entered: 01/29/2008)
257 Declaration of Matthew J. Nimrod in Support of 249 MOTION for Summary Judgment Defendants' Notice of Motion for Summary Judgment Correction: Doc. No. 237 had the wrong Declaration and Exhibits attached. Please attach these docs to doc. no. 237 filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 249 ) (O'Bannon, Danielle) (Filed on 1/30/2008) (Entered: 01/30/2008)
266 Letter Defendants' Letter Brief. (O'Bannon, Danielle) (Filed on 1/31/2008) (Entered: 01/31/2008)
267 Declaration in Support of 266 Letter Declaration of Danielle F. OBannon in Support of Defendants Letter Brief for Order to Compel the Deposition of Plaintiffs Expert, Craig Haney, Ph.D. filed byA. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 266 ) (O'Bannon, Danielle) (Filed on 1/31/2008) (Entered: 01/31/2008)
268 Letter Brief filed byErnesto G. Lira. (White, Mark) (Filed on 1/31/2008) (Entered: 01/31/2008)
269 Minute Entry: Further Case Management Conference held on 2/1/2008 before Illston (Date Filed: 2/5/2008). () (ts, COURT STAFF) (Date Filed: 2/5/2008) (Entered: 02/05/2008)
270 STIPULATION and Order for Dismissal of Certain Defendants by A. Scribner, J. Stokes, B. Heaps, Bruce, K. Cruse, M. J. Nimrod, K. Mann, C. Patten, D. Bradbury, K. C. Bolles, Edward Alameida, W. J. Olmsted, J. Chavez, Herrera, J. Cox, B. O'Neill, Steve R. Moore, K. Slatten, L. Olivas, P. S. Nowling, S. Dwight, M. Day, J. Maykel, Teresa Schwartz, Richard Kirkand, Victor Almager, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 2/7/2008) (Entered: 02/07/2008)
271 DECLARATION of Mark White Supplemental − Re: Opposition to Defendants' Motion for Summary Judgment filed byErnesto G. Lira. (White, Mark) (Filed on 2/8/2008) (Entered: 02/08/2008)
272 DECLARATION of Plaintiff Ernesto Lira Re: Opposition to Defendants' Motion for Summary Judgment filed byErnesto G. Lira. (White, Mark) (Filed on 2/8/2008) (Entered: 02/08/2008)
273 OBJECTIONS to and Request to Strike Declarations Filed In Support of Defendants' Motion For Summary Judgment by Ernesto G. Lira. (White, Mark) (Filed on 2/8/2008) (Entered: 02/08/2008)
274 MOTION for Leave to File to Extend The Page Limitation of His Opposition to Defendants' Motion for Summary Judgment; Supporting Declaration of Counsel filed by Ernesto G. Lira. (White, Mark) (Filed on 2/8/2008) (Entered: 02/08/2008)

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02/08/2008 02/08/2008 02/08/2008 02/08/2008 02/08/2008 02/08/2008 02/08/2008 02/08/2008 02/11/2008 02/12/2008 02/12/2008 02/12/2008 02/14/2008 02/15/2008
02/15/2008
02/15/2008

275 Proposed Order Granting Plaintiff's Motion to Extend The Page Limitation of His Opposition To Defendants' Motion for Summary Judgment by Ernesto G. Lira. (White, Mark) (Filed on 2/8/2008) (Entered: 02/08/2008)
276 MOTION for Leave to File Under Seal His Summary Judgment Opposition and Certain Exhibits To Supporting Declaration of Mark White; Declaration of Counsel In Support of Motion filed by Ernesto G. Lira. (White, Mark) (Filed on 2/8/2008) (Entered: 02/08/2008)
277 Proposed Order Granting Plaintiff's Motion For Leave To File Under Seal His Summary Judgment Opposition And Certain Exhibits To Supporting Declaration Of Mark White Under Seal by Ernesto G. Lira. (White, Mark) (Filed on 2/8/2008) (Entered: 02/08/2008)
278 ERRATA Memorandum Re: Exhibits in Support of Plaintiff's Objection by Ernesto G. Lira. (White, Mark) (Filed on 2/8/2008) (Entered: 02/08/2008)
279 NOTICE by Ernesto G. Lira Re: Manual Filing of Plaintiff's Opposition to Defendants' Motion For Summary Judgment (White, Mark) (Filed on 2/8/2008) (Entered: 02/08/2008)
280 EXHIBITS to re 271 Declaration of Mark White re Opposition filed byErnesto G. Lira. (Volume 1 and 2) (Related document(s) 271 ) (ys, COURT STAFF) (Filed on 2/8/2008) (Entered: 02/11/2008)
285 MEMORANDUM in Opposition re 249 MOTION for Summary Judgment Defendants' Notice of Motion for Summary Judgment filed byplaintiff. FILED UNDER SEAL. (Related document(s) 249 ) (ys, COURT STAFF) (Filed on 2/8/2008) (Entered: 02/14/2008)
286 EXHIBITS in support of 285 Memorandum in Opposition filed byErnesto G. Lira. FILED UNDER SEAL. (Related document(s) 285 ) (ys, COURT STAFF) (Filed on 2/8/2008) (Entered: 02/14/2008)
281 EXHIBITS in support of re 273 Objection and Request to strike declaration filed byErnesto G. Lira. (Vol. 1 and 2) (Related document(s) 273 ) (ys, COURT STAFF) (Filed on 2/11/2008) (Entered: 02/11/2008)
282 ORDER dismissing certain defendants. Signed by Judge Illston on 2/11/08. (ts, COURT STAFF) (Filed on 2/12/2008) (Entered: 02/12/2008)
283 ORDER by Judge Illston granting 274 Motion for Leave to File (ts, COURT STAFF) (Filed on 2/12/2008) (Entered: 02/12/2008)
284 ORDER by Judge Illston granting 276 Motion for Leave to File (ts, COURT STAFF) (Filed on 2/12/2008) (Entered: 02/12/2008)
287 ERRATA for 249 Plaintiff's Opposition to Defendants' Motion for Summary Judgment; and Objection and Request to Strike Defendants' Supporting Declarations by Ernesto G. Lira. (White, Mark) (Filed on 2/14/2008) Modified on 2/19/2008 (ys, COURT STAFF). (Entered: 02/14/2008)
288 Defendants' Response to Plaintiff's Objection and Request to Strike Declarations by J. Stokes, K. Mann, D. Best, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (O'Bannon, Danielle) (Filed on 2/15/2008) Modified on 2/19/2008 (ys, COURT STAFF). (Entered: 02/15/2008)
289 Reply to Opposition Filed Under Seal Defendants' Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment filed byJ. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 2/15/2008) (Entered: 02/15/2008)
290 OBJECTIONS to Plaintiff's Evidence in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment by J. Stokes, K. Mann, D. Best, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (O'Bannon, Danielle) (Filed on 2/15/2008) (Entered: 02/15/2008)

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02/15/2008 02/15/2008 02/15/2008 02/15/2008 02/15/2008 02/20/2008 02/20/2008 02/20/2008 02/26/2008

291 Declaration of Scott J. Feudale in Support of 289 Reply to Opposition, Supplemental Declaration of Scott J. Feudale in Support of Defendants' Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment filed byJ. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit XX, # 2 Exhibit YY (part 1 of 2), # 3 Exhibit YY (part 2 of 2))(Related document(s) 289 ) (Feudale, Scott) (Filed on 2/15/2008) (Entered: 02/15/2008)
292 Declaration of Randolph Romero in Support of 289 Reply to Opposition, Declaration of Randolph Romero in Support of Defendants' Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment filed byJ. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 289 ) (Feudale, Scott) (Filed on 2/15/2008) (Entered: 02/15/2008)
293 MOTION to Seal Defendants' Notice of Motion and Motion to File Under Seal Defendants' Reply Brief and Portions of the Supplemental Declaration of Scott J. Feudale in Support of Defendants' Motion for Summary Judgment and for In Camera Review filed by J. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 2/15/2008) (Entered: 02/15/2008)
294 Proposed Order re 293 MOTION to Seal Defendants' Notice of Motion and Motion to File Under Seal Defendants' Reply Brief and Portions of the Supplemental Declaration of Scott J. Feudale in Support of Defendants' Motion for Summary Judgment and for In Camer by J. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 2/15/2008) (Entered: 02/15/2008)
295 Declaration of Scott J. Feudale in Support of 293 MOTION to Seal Defendants' Notice of Motion and Motion to File Under Seal Defendants' Reply Brief and Portions of the Supplemental Declaration of Scott J. Feudale in Support of Defendants' Motion for Summary Judgment and for In Camer filed byJ. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 293 ) (Feudale, Scott) (Filed on 2/15/2008) (Entered: 02/15/2008)
296 MOTION for Leave to File Defendants' Notice of Motion and Motion for Leave to File a Motion for Reconsideration Re: Order Following Further Settlement Conference filed by J. Stokes, K. Mann, Edward Alameida, Busser, W. J. Olmsted, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 2/20/2008) (Entered: 02/20/2008)
297 Declaration of Scott J. Feudale in Support of 296 MOTION for Leave to File Defendants' Notice of Motion and Motion for Leave to File a Motion for Reconsideration Re: Order Following Further Settlement Conference filed byJ. Stokes, K. Mann, Edward Alameida, Busser, W. J. Olmsted, Herrera, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Related document(s) 296 ) (Feudale, Scott) (Filed on 2/20/2008) (Entered: 02/20/2008)
298 Proposed Order Granting Defendants' Motion For Leave to File a Motion for Reconsideration Re: Order Following Further Settlement Conference by J. Stokes, K. Mann, Edward Alameida, Busser, W. J. Olmsted, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 2/20/2008) (Entered: 02/20/2008)
299 Defendants' Supplemental Memorandum of Points and Authorities in Support of 249 Their Motion for Summary Judgment filed by J. Stokes, K. Mann, Edward Alameida, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. Motion Hearing set for 2/29/2008 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Feudale, Scott) (Filed on 2/26/2008) Modified on 2/27/2008 (ys, COURT STAFF). (Entered: 02/26/2008)

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02/26/2008
02/27/2008 02/27/2008 02/29/2008 03/03/2008 03/04/2008 03/05/2008 03/05/2008 03/07/2008
03/07/2008 03/07/2008 03/10/2008 03/10/2008
03/10/2008

300 Declaration of Scott J. Feudale in Support of 249 MOTION for Summary Judgment Defendants' Supplemental Memorandum of Points and Authorities in Support of Their Motion for Summary Judgment Supplemental Declaration of Scott J. Feudale in Support of Defendants' Supplemental Memorandum of Points and Authorities in Support of Their Motion for Summary Judgment filed byJ. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit ZZ (Part 1 of 2), # 2 Exhibit ZZ (Part 2 of 2))(Related document(s) 299 ) (Feudale, Scott) (Filed on 2/26/2008) Modified on 2/27/2008 (ys, COURT STAFF). (Entered: 02/26/2008)
301 ORDER by Magistrate Judge Elizabeth D. Laporte granting in part and denying in part 296 Motion for Leave to File (edllc2, COURT STAFF) (Filed on 2/27/2008) (Entered: 02/27/2008)
302 Plaintiff's Supplemental Memorandum in Opposition to 249 Defendants' Motion for Summary Judgment filed byErnesto G. Lira. (White, Mark) (Filed on 2/27/2008) Modified on 2/28/2008 (ys, COURT STAFF). (Entered: 02/27/2008)
303 Letter to brief the Court. (Feudale, Scott) (Filed on 2/29/2008) (Entered: 02/29/2008)
304 Letter from Plaintiff Lira re Defendants' Letter re Reimers. (White, Mark) (Filed on 3/3/2008) (Entered: 03/03/2008)
305 ORDER DENYING 249 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 3/4/2008) (Entered: 03/04/2008)
306 Minute Entry: Motion Hearing held on 2/29/2008 before Illston (Date Filed: 3/5/2008). (Court Reporter L. Zinn.) (ts, COURT STAFF) (Date Filed: 3/5/2008) (Entered: 03/05/2008)
307 Minute Entry: Further Settlement Conference held with Magistrate Judge on 3/5/2008. Case did not settle. (lmh, COURT STAFF) (Date Filed: 3/5/2008) (Entered: 03/06/2008)
308 NOTICE OF INTERLOCUTORY APPEAL as to 305 Order on Motion for Summary Judgment by J. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Donald Schmidt, Fielder, M. Piland, J. Briddle. Filing fee $ 455, receipt number 34611016705. Appeal Record due by 4/7/2008. (ys, COURT STAFF) (Filed on 3/7/2008) (Additional attachment(s) added on 3/7/2008: # 1 receipt) (ys, COURT STAFF). (Additional attachment(s) added on 3/7/2008: # 2 order) (ys, COURT STAFF). (Entered: 03/07/2008)
309 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 308 Notice of Interlocutory Appeal. (ys, COURT STAFF) (Filed on 3/7/2008) (Additional attachment(s) added on 3/7/2008: # 1 Clk ntc) (ys, COURT STAFF). (Entered: 03/07/2008)
Copy of Notice of Appeal electronically available. (ys, COURT STAFF) (Filed on 3/7/2008) (Entered: 03/07/2008)
310 MOTION for Certification of Defendants' Appeal as Frivolous filed by Ernesto G. Lira. (White, Mark) (Filed on 3/10/2008) Modified on 3/11/2008 (ys, COURT STAFF). (Entered: 03/10/2008)
311 Ex Parte Application re 310 MOTION for Hearing for Certification of Defendants' Appeal as Frivolous to Shorten Time for Briefing and Hearing of His Motion for Certification of Defendants's Appeal as Frivolous; Supporting Declaration of Counsel filed by Ernesto G. Lira. Motion Hearing set for 3/12/2008 04:00 PM in Courtroom 10, 19th Floor, San Francisco. (White, Mark) (Filed on 3/10/2008) (Entered: 03/10/2008)
312 Proposed Order re 311 Ex Parte Application re 310 MOTION for Hearing for Certification of Defendants' Appeal as Frivolous to Shorten Time for Briefing and Hearing of His Motion for Certification of Defendants's Appeal as Frivolous; Supporting Declarat Ex Parte Application re 310 MOTION for Hearing for Certification of Defendants' Appeal as Frivolous to Shorten Time for Briefing and Hearing of His Motion for Certification of Defendants's Appeal as Frivolous;

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03/10/2008 03/12/2008 03/14/2008 03/17/2008 03/17/2008 04/07/2008
04/09/2008 05/07/2008 05/07/2008 05/07/2008 05/07/2008 05/30/2008 06/05/2008

Supporting Declarat by Ernesto G. Lira. (White, Mark) (Filed on 3/10/2008) (Entered: 03/10/2008)
313 ORDER DENYING 311 PLAINTIFFS EX PARTE APPLICATION TO SHORTEN TIME; DENYING 310 PLAINTIFFS MOTION FOR CERTIFICATION OF DEFENDANTS APPEAL AS FRIVOLOUS. Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 3/10/2008) (Entered: 03/10/2008)
Case Stayed /trial vacated (ts, COURT STAFF) (Filed on 3/12/2008) (Entered: 03/12/2008)
316 USCA Case Number 08−15529 USCA for 308 Notice of Interlocutory Appeal,, filed by Fielder, J. Briddle, Richard Kirkand, J. Stokes, M. Piland, Donald Schmidt, James E. Tilton, K. Mann, pizzella, Herrera, Busser, Teresa Schwartz, Edward Alameida. (ys, COURT STAFF) (Filed on 3/14/2008) (Entered: 03/17/2008)
314 ORDER STAYING CASE PENDING APPEAL; ADMINISTRATIVELY CLOSING CASE (SI, COURT STAFF) (Filed on 3/17/2008) Modified on 3/17/2008 (SI, COURT STAFF). FILED IN ERROR. (Entered: 03/17/2008)
315 ORDER STAYING CASE PENDING APPEAL; ADMINISTRATIVELY CLOSING CASE. Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 3/17/2008) (Entered: 03/17/2008)
317 TRANSCRIPT DESIGNATION and Ordering Form re 2/29/08 re 306 , (c/r: L. Zinn) by J. Stokes, K. Mann, Edward Alameida, Busser, W. J. Olmsted, J. Chavez, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle for proceedings held on TBA before Judge Susan Illston.(Feudale, Scott) (Filed on 4/7/2008) Modified on 4/9/2008 (ys, COURT STAFF). (Entered: 04/07/2008)
318 TRANSCRIPT of Proceedings held on 2/29/08 re 306 before Judge Susan Illston. Court Reporter: Lydia Zinn. (ys, COURT STAFF) (Filed on 4/9/2008) (Entered: 04/10/2008)
319 MOTION for Hearing for Crateo Indication: Confirming District Courts Willingness to Favorably Consider Voluntary Dismissal of Individual Defendants in the Event of Limited Remand by Court of Appeals for Such Purpose filed by Ernesto G. Lira. Motion Hearing set for 6/20/2008 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (White, Mark) (Filed on 5/7/2008) (Entered: 05/07/2008)
320 Declaration of Mark A. White in Support of 319 MOTION for Hearing for Crateo Indication: Confirming District Courts Willingness to Favorably Consider Voluntary Dismissal of Individual Defendants in the Event of Limited Remand by Court of Appeals for Such Purpose filed byErnesto G. Lira. (Related document(s) 319 ) (White, Mark) (Filed on 5/7/2008) (Entered: 05/07/2008)
321 Memorandum of Points and Authorities in support of 319 Crateo Indication: Confirming District Courts Willingness to Favorably Consider Voluntary Dismissal of Individual Defendants in the Event of Limited Remand by Court of Appeals for Such Purpose filed byErnesto G. Lira. (White, Mark) (Filed on 5/7/2008) Modified on 5/8/2008 (ys, COURT STAFF). (Entered: 05/07/2008)
322 Proposed Order re 319 MOTION for Hearing for Crateo Indication: Confirming District Courts Willingness to Favorably Consider Voluntary Dismissal of Individual Defendants in the Event of Limited Remand by Court of Appeals for Such Purpose by Ernesto G. Lira. (White, Mark) (Filed on 5/7/2008) (Entered: 05/07/2008)
323 Defendants' Opposition To 319 Plaintiff's Motion For Crateo Indication filed byJ. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (O'Bannon, Danielle) (Filed on 5/30/2008) Modified on 6/2/2008 (ys, COURT STAFF). (Entered: 05/30/2008)
324 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d Defendants' Statement of Recent Decision Supplementing Defendants' Opposition to Plaintiff's Motion for Crateo Indication filed byJ. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy

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06/06/2008
06/06/2008
06/18/2008 07/22/2008 08/11/2008 08/11/2008 08/11/2008
08/11/2008 08/11/2008 08/13/2008
08/13/2008
08/13/2008 08/13/2008 08/13/2008

Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A)(Feudale, Scott) (Filed on 6/5/2008) (Entered: 06/05/2008)
325 Reply Memorandum re 319 Motion for Crateo Indication: Confirming District Court's Willingness to Favorably Consider Voluntary Dismissal of Individual Defendants in the Event of Limited Remand by Court of Appeals for Such Purpose filed byErnesto G. Lira. (White, Mark) (Filed on 6/6/2008) Modified on 6/9/2008 (ys, COURT STAFF). (Entered: 06/06/2008)
326 Declaration of Mark A. White in Support of 325 Reply Memorandum, re Crateo Indication filed byErnesto G. Lira. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F)(Related document(s) 325 ) (White, Mark) (Filed on 6/6/2008) (Entered: 06/06/2008)
327 ORDER GRANTING 319 PLAINTIFF'S MOTION FOR CRATEO HEARI. Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 6/18/2008) (Entered: 06/18/2008)
328 ORDER of USCA as to 308 Notice of Interlocutory Appeal: Appellant's opposed motion for reconsideration of the Clerk's July 7, 2008 order is DENIED. (ys, COURT STAFF) (Filed on 7/22/2008) (Entered: 07/23/2008)
329 MOTION to Dismiss 13 Individual Defendants with Prejudice filed by Ernesto G. Lira. Motion Hearing set for 9/22/2008 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (White, Mark) (Filed on 8/11/2008) (Entered: 08/11/2008)
330 Brief re 329 MOTION to Dismiss 13 Individual Defendants with Prejudice filed byErnesto G. Lira. (Related document(s) 329 ) (White, Mark) (Filed on 8/11/2008) (Entered: 08/11/2008)
331 Declaration of Mark A. White in Support of 330 Brief, 329 MOTION to Dismiss 13 Individual Defendants with Prejudice filed byErnesto G. Lira. (Attachments: # 1 Exhibit A − Order Granting Limited Remand, # 2 Exhibit B − Order Denying Motion to Reconsider Grant of Limited Remand)(Related document(s) 330 , 329 ) (White, Mark) (Filed on 8/11/2008) (Entered: 08/11/2008)
332 Proposed Order re 330 Brief, 329 MOTION to Dismiss 13 Individual Defendants with Prejudice, 331 Declaration in Support, by Ernesto G. Lira. (White, Mark) (Filed on 8/11/2008) (Entered: 08/11/2008)
333 REQUEST by Ernesto G. Lira re 329 MOTION to Dismiss 13 Individual Defendants with Prejudice and Request for Case Management Conference (White, Mark) (Filed on 8/11/2008) Modified on 8/12/2008 (ys, COURT STAFF). (Entered: 08/11/2008)
334 Memorandum in Opposition Defendants' Opposition to Plaintiff's Request for Case Management Conference filed byJ. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 8/13/2008) (Entered: 08/13/2008)
335 Declaration of Scott J. Feudale in Support of 334 Memorandum in Opposition, filed byJ. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 334 ) (Feudale, Scott) (Filed on 8/13/2008) (Entered: 08/13/2008)
336 Proposed Order Denying Plaintiff's Request for a Case Management Conference by J. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 8/13/2008) (Entered: 08/13/2008)
337 ORDER granting request for case management conference. Signed by Judge Illston on 8/13/08. (ts, COURT STAFF) (Filed on 8/13/2008) (Entered: 08/13/2008)
Set Deadlines/Hearings: Case Management Conference set for 9/22/2008 09:00 AM. (ys, COURT STAFF) (Filed on 8/13/2008) (Entered: 08/14/2008)

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09/02/2008
09/03/2008 09/10/2008 09/10/2008 09/12/2008 09/12/2008 09/12/2008 09/15/2008
09/15/2008 09/17/2008 09/17/2008 09/22/2008 09/22/2008 09/23/2008 09/23/2008 09/24/2008

338 Statement of Non−Opposition Defendants' Statement of Non−Opposition to Plaintiff's 329 Motion for Dismissal of Thirteen Defendants Sued in Their Individual Capacities with Prejudice filed byJ. Stokes, K. Mann, Edward Alameida, Busser, Herrera, Teresa Schwartz, Richard Kirkand, pizzella, James E. Tilton, Judy Olson, Donald Schmidt, Fielder, M. Piland, J. Briddle. (Feudale, Scott) (Filed on 9/2/2008) Modified on 9/3/2008 (aaa, Court Staff). (Entered: 09/02/2008)
339 ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION TO DISMISS WITH PREJUDICE THIRTEEN DEFENDANTS (SI, COURT STAFF) (Filed on 9/3/2008) (Entered: 09/03/2008)
340 Defendant's MOTION for CRATEO Indication filed by James E. Tilton. Motion Hearing set for 10/31/2008 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Feudale, Scott) (Filed on 9/10/2008) Modified on 9/11/2008 (slh, COURT STAFF). (Entered: 09/10/2008)
341 Proposed Order re 340 MOTION for Hearing Defendant's Motion for CRATEO Indication Proposed Order Granting Defendant's Motion for CRATEO Indication by James E. Tilton. (Feudale, Scott) (Filed on 9/10/2008) (Entered: 09/10/2008)
342 MOTION to Continue Defendants' Motion to Continue the September 22, 2008 Case Management Conference filed by James E. Tilton. (Feudale, Scott) (Filed on 9/12/2008) (Entered: 09/12/2008)
343 Declaration of Scott J. Feudale in Support of 342 MOTION to Continue Defendants' Motion to Continue the September 22, 2008 Case Management Conference filed byJames E. Tilton. (Attachments: # 1 Exhibit A)(Related document(s) 342 ) (Feudale, Scott) (Filed on 9/12/2008) (Entered: 09/12/2008)
344 Proposed Order re 342 MOTION to Continue Defendants' Motion to Continue the September 22, 2008 Case Management Conference by James E. Tilton. (Feudale, Scott) (Filed on 9/12/2008) (Entered: 09/12/2008)
345 Letter Brief re 342 MOTION to Continue Defendants' Motion to Continue the September 22, 2008 Case Management Conference, 344 Proposed Order, 343 Declaration in Support, Letter re Opposition to Defendants' Motion to Continue Case Management Conference filed byErnesto G. Lira. (Related document(s) 342 , 344 , 343 ) (Quackenbos, Carol) (Filed on 9/15/2008) (Entered: 09/15/2008)
346 CERTIFICATE OF SERVICE by James E. Tilton re 342 MOTION to Continue Defendants' Motion to Continue the September 22, 2008 Case Management Conference Amended Proof of Service (Feudale, Scott) (Filed on 9/15/2008) (Entered: 09/15/2008)
347 Memorandum in Opposition to Defendant's 342 Ex Parte Request to Continue Case Management Conference filed by Ernesto G. Lira. (White, Mark) (Filed on 9/17/2008) Modified on 9/18/2008 (slh, COURT STAFF). (Entered: 09/17/2008)
348 CLERK'S NOTICE Case Management Conference set for 9/22/2008 02:30 PM. (ts, COURT STAFF) (Filed on 9/17/2008) (Entered: 09/17/2008)
349 CASE MANAGEMENT STATEMENT filed by Ernesto G. Lira. (White, Mark) (Filed on 9/22/2008) (Entered: 09/22/2008)
350 ORDER by Judge Illston denying 342 Motion to Continue (ts, COURT STAFF) (Filed on 9/22/2008) (Entered: 09/22/2008)
351 CASE MANAGEMENT STATEMENT Defendant's Separate Case Management Statement filed by James E. Tilton. (Feudale, Scott) (Filed on 9/23/2008) (Entered: 09/23/2008)
352 Declaration of Scott Feudale in Support of 351 Case Management Statement Declaration of Scott Feudale Regarding Failure to File a Joint Case Management Statement filed byJames E. Tilton. (Related document(s) 351 ) (Feudale, Scott) (Filed on 9/23/2008) (Entered: 09/23/2008)
CASE REFERRED to Magistrate Judge Nandor J. Vadas for Settlement (cmw, COURT STAFF) (Filed on 9/24/2008) (Entered: 09/24/2008)

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09/25/2008
09/25/2008 09/25/2008 09/25/2008 09/26/2008 10/03/2008 10/08/2008 10/08/2008 10/08/2008 10/08/2008 10/10/2008 10/14/2008 10/20/2008 10/22/2008 10/27/2008

353 Minute Entry: Further Case Management Conference held on 9/22/2008 before Illston (Date Filed: 9/25/2008). Defendants Crateo motion is advanced from 10/31/08 to 10/14/08 @ 10:00 a.m.(Opposition: 9/26/08, Reply 10/10/08)Case continued to Wed. 12/17/08 @ 3:30 P.M. For Pretrial ConferenceCase continued to 1/12/09 @ 8:30 a.m. for Court trial (maybe continued to 1/26/09)ORDERED AFTER HEARING: The parties agree that Mr Cate may be substituted in as a defendant in place of James Tilton. Plaintiff shall prepare a proposed order on the substitution.Defendants may request that the case be tried by a jury by October 31, 2008. Plaintiff may file an opposition to the request for a jury by November 7, 2008. If the Court determines that a trial by jury is appropriate, defense may write a letter re: possibility of further summary judgment motions. If the Court determines a bench trial is appropriate, any unresolved issues may be tried to the Court. The Court will issue its ruling on the jury request by November 14, 2008.This case shall be referred to Magistrate−Judge Vadas for purposes of settlement. If possible, the settlement conference shall occur close to San Francisco and during the week of October 20, 2008.Plaintiff may amend its expert reports by 10/14/08. Defendant may further depose the experts if necessary. Defendant may also designate new experts by 11/14/08. () (ts, COURT STAFF) (Date Filed: 9/25/2008) (Entered: 09/25/2008)
354 AMENDED 9/22/08 MINUTES re 353 (ts, COURT STAFF) (Filed on 9/25/2008) (Entered: 09/25/2008)
Set/Reset Deadlines as to 340 MOTION for CRATEO Indication. Motion Hearing set for 10/14/2008 10:00 AM. (ys, COURT STAFF) (Filed on 9/25/2008) (Entered: 09/26/2008)
Set Deadlines/Hearings: Bench Trial set for 1/12/2009 08:30 AM. Pretrial Conference set for 12/17/2008 03:30 PM. (ys, COURT STAFF) (Filed on 9/25/2008) (Entered: 09/26/2008)
355 Memorandum in Opposition to 340 Defendant's Motion for Section 1292(b) Crateo Indication filed byErnesto G. Lira. (White, Mark) (Filed on 9/26/2008) Modified on 9/29/2008 (ys, COURT STAFF). (Entered: 09/26/2008)
356 Proposed Order Substituting Matthew Cate for James Tilton by Ernesto G. Lira. (White, Mark) (Filed on 10/3/2008) (Entered: 10/03/2008)
357 FILED IN ERROR (Entered: 10/08/2008)
358 ORDER substituting Cate for Tilton re 356 . Signed by Judge Illston on 10/7/08. (ts, COURT STAFF) (Filed on 10/8/2008) (Entered: 10/08/2008)
359 ORDER setting settlement conference for 10/23/08 at 1:00 p.m. in Courtroom F, 450 Golden Gate Avenue, San Francisco, CA. Signed by Judge Nandor J. Vadas on 10/8/08. (glm, COURT STAFF) (Filed on 10/8/2008) (Entered: 10/08/2008)
Set Deadlines/Hearings: Settlement Conference before Majistrate Judge Vada set for 10/23/2008 01:00 PM. (ys, COURT STAFF) (Filed on 10/8/2008) (Entered: 10/09/2008)
360 Defendant's Reply to 355 Plaintiff's Opposition to Defendant's Motion for CRATEO Indication filed byJames E. Tilton. (Feudale, Scott) (Filed on 10/10/2008) Modified on 10/14/2008 (ys, COURT STAFF). (Entered: 10/10/2008)
361 ORDER DENYING DEFENDANTS' MOTION FOR CRATEO INDICATION re 340 . Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 10/14/2008) (Entered: 10/14/2008)
362 ORDER of USCA as to 308 Notice of Interlocutory Appeal re briefings.(ys, COURT STAFF) (Filed on 10/20/2008) (Entered: 10/20/2008)
363 NOTICE of Appearance by Neah Huynh (Huynh, Neah) (Filed on 10/22/2008) (Entered: 10/22/2008)
364 Report of Pro Se Prisoner Early Settlement Proceeding; case did not settle. Signed by Judge Nandor J. Vadas on 10/27/08. (glm, COURT STAFF) (Filed on 10/27/2008) (Entered: 10/27/2008)

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10/29/2008 10/31/2008 11/04/2008 12/03/2008
12/03/2008
12/03/2008
12/03/2008
12/03/2008
12/03/2008 12/03/2008 12/03/2008 12/03/2008 12/03/2008 12/03/2008 12/03/2008
12/03/2008
12/03/2008

365 USCA JUDGMENT as to 308 Notice of Interlocutory Appeal: Dismissed.(ys, COURT STAFF) (Filed on 10/29/2008) (Entered: 10/29/2008)
366 Letter from Neah Huynh, DAG. (Huynh, Neah) (Filed on 10/31/2008) (Entered: 10/31/2008)
367 Report of Pro Se Prisoner Early Settlement Proceeding; case did not settle. Signed by Judge Nandor J. Vadas on 11/4/08. (glm, COURT STAFF) (Filed on 11/4/2008) (Entered: 11/04/2008)
368 MOTION in Limine Defendant's Motion in Limine No. 1 to Exclude Plaintiff's Mental−Health Evidence as Irrelevant, Unnecessary, and Cumulative Under Rules 402, 403, 702 filed by Matthew Cate. Motion Hearing set for 12/17/2008 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (Attachments: # 1 Exhibit Attachment)(Feudale, Scott) (Filed on 12/3/2008) (Entered: 12/03/2008)
369 MOTION in Limine Defendant's Motion in Limine No. 2 to Exclude Evidence of Subsequent Remedial Measures & Settlement Discussions or Compromises Under Rules 407, 408, & 403 filed by Matthew Cate. Motion Hearing set for 12/17/2008 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (Feudale, Scott) (Filed on 12/3/2008) (Entered: 12/03/2008)
370 MOTION in Limine Defendant's Motion in Limine No. 3 to Bifurcate Liability Equitable Relief filed by Matthew Cate. Motion Hearing set for 12/17/2008 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (Feudale, Scott) (Filed on 12/3/2008) (Entered: 12/03/2008)
371 MOTION in Limine Defendant's Motion in Limine No. 4 to Present Confidential Testimony in a Closed Courtroom filed by Matthew Cate. Motion Hearing set for 12/17/2008 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (Feudale, Scott) (Filed on 12/3/2008) (Entered: 12/03/2008)
372 Declaration of Everett Fischer in Support of 371 MOTION in Limine Defendant's Motion in Limine No. 4 to Present Confidential Testimony in a Closed Courtroom filed byMatthew Cate. (Related document(s) 371 ) (Feudale, Scott) (Filed on 12/3/2008) (Entered: 12/03/2008)
373 Proposed Findings of Fact by Matthew Cate Findings of Fact and Conclusions of Law; Order. (Feudale, Scott) (Filed on 12/3/2008) (Entered: 12/03/2008)
374 Witness List by Matthew Cate Defendant's List of Witnesses. (Feudale, Scott) (Filed on 12/3/2008) (Entered: 12/03/2008)
375 Exhibit List Likely to Be Offered at Trial by Ernesto G. Lira.. (White, Mark) (Filed on 12/3/2008) (Entered: 12/03/2008)
376 Exhibit List Defendant's List of Trial Exhibits by Matthew Cate.. (Huynh, Neah) (Filed on 12/3/2008) (Entered: 12/03/2008)
377 Witness List by Ernesto G. Lira. (White, Mark) (Filed on 12/3/2008) (Entered: 12/03/2008)
378 Pretrial Conference Statement by Ernesto G. Lira Filed Jointly by Parties. (White, Mark) (Filed on 12/3/2008) (Entered: 12/03/2008)
379 First MOTION in Limine to Permit Presentation of Plaintiff's Trial Testimony in Sequenced Phases filed by Ernesto G. Lira. Motion Hearing set for 12/17/2008 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (White, Mark) (Filed on 12/3/2008) (Entered: 12/03/2008)
380 Second MOTION in Limine to Lift Attorney's−Eyes−Only Restrictions of Stipulated Protective Order for Purposes of Trial filed by Ernesto G. Lira. Motion Hearing set for 12/17/2008 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (Attachments: # 1 Exhibit)(White, Mark) (Filed on 12/3/2008) (Entered: 12/03/2008)
381 Third MOTION in Limine to Permit In−Person Direct Testimony of Plaintiff and Family Members in Lieu of Written Narrative Statements filed by Ernesto G. Lira. Motion Hearing set for 12/17/2008 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (White, Mark) (Filed on 12/3/2008) (Entered: 12/03/2008)

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12/03/2008 12/03/2008 12/03/2008
12/09/2008 12/10/2008 12/10/2008 12/10/2008 12/10/2008 12/10/2008 12/10/2008
12/10/2008 12/11/2008 12/11/2008
12/11/2008 12/11/2008

382 Fourth MOTION in Limine to Limit or Exclude Testimony from Defense Witness Michael Ruff to the Extent Not Previously Disclosed in Discovery filed by Ernesto G. Lira. Motion Hearing set for 12/17/2008 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (White, Mark) (Filed on 12/3/2008) (Entered: 12/03/2008)
383 Proposed Findings of Fact by Ernesto G. Lira and Conclusions of Law. (White, Mark) (Filed on 12/3/2008) (Entered: 12/03/2008)
384 MOTION in Limine Defendant's Motion in Limine No. 5 for an Extension of Time to Serve His Trial Declarations on Plaintiff filed by Matthew Cate. Motion Hearing set for 12/17/2008 03:30 PM in Courtroom 10, 19th Floor, San Francisco. (Attachments: # 1 Affidavit Declaration of Feudale in Support of Defendant's Motion In Limine No. 5 for an Extension of Time to Serve His Trial Declarations on Plaintiff)(Huynh, Neah) (Filed on 12/3/2008) (Entered: 12/03/2008)
385 Witness List by Matthew Cate Defendant's Amended List of Witnesses. (Feudale, Scott) (Filed on 12/9/2008) (Entered: 12/09/2008)
386 Defendant's Opposition to 379 Plaintiff's Motion in Limine No. 1 to Permit Presentation of Plaintiff's Trial Testimony in Sequenced Phases filed byMatthew Cate. (Huynh, Neah) (Filed on 12/10/2008) Modified on 12/11/2008 (ys, COURT STAFF). (Entered: 12/10/2008)
387 Defendant's Opposition to 380 Plaintiff's Motion in Limine No. 2: To Lift the Attorney's Eyes Only Restricrtions of the Stipulated Protective Order for the Purposes of Trial filed byMatthew Cate. (Feudale, Scott) (Filed on 12/10/2008) Modified on 12/11/2008 (ys, COURT STAFF). (Entered: 12/10/2008)
388 Defendant's Opposition to 381 Plaintiff's Motion in Limine No. 3 to Permit In−Person Direct Testimony of Plaintiff and Family Members in Lieu of Written Narrative Statements filed byMatthew Cate. (Feudale, Scott) (Filed on 12/10/2008) Modified on 12/11/2008 (ys, COURT STAFF). (Entered: 12/10/2008)
389 Exhibit List Amended by Ernesto G. Lira.. (White, Mark) (Filed on 12/10/2008) (Entered: 12/10/2008)
390 Defendant's Opposition to 382 Plaintiff's Motion in Limine No. 4: To Limit or Exclude Defense Witness Michael Ruff to the Extent Not Previously Disclosed in Discovery filed byMatthew Cate. (Feudale, Scott) (Filed on 12/10/2008) Modified on 12/11/2008 (ys, COURT STAFF). (Entered: 12/10/2008)
391 Declaration of Scott Feudale in Support of 390 Defendant's Opposition to Plaintiff's Motion in Limine No. 4: To Limit or Exclude Defendant Witness Michael Ruff to the Extent Not Previously Disclosed in Discovery filed byMatthew Cate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Feudale, Scott) (Filed on 12/10/2008) Modified on 12/11/2008 (ys, COURT STAFF). (Entered: 12/10/2008)
392 MOTION to have supplemental expert deposition taken telephonically filed by Ernesto G. Lira. (White, Mark) (Filed on 12/10/2008) (Entered: 12/10/2008)
393 Memorandum in Opposition to 369 Defendant's Motion in Limine No. 2 to Exclude Evidence of Subsequent Remedial Measures and Settlement Discussions or Compromises filed byErnesto G. Lira. (White, Mark) (Filed on 12/11/2008) Modified on 12/12/2008 (ys, COURT STAFF). (Entered: 12/11/2008)
394 Declaration of Mark A. White in support of 393 Opposition to Defendant's Motion in Limine No. 2 to Exclude Evidence of Subsequent Remedial Measures and Settlement Discussions or Compromises filed byErnesto G. Lira. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(White, Mark) (Filed on 12/11/2008) Modified on 12/12/2008 (ys, COURT STAFF). (Entered: 12/11/2008)
395 Memorandum in Opposition to 368 Defendant's Motion in Limine No. 1 to Exclude Plaintiff's Mental−Health Evidence filed byErnesto G. Lira. (White, Mark) (Filed on 12/11/2008) Modified on 12/12/2008 (ys, COURT STAFF). (Entered: 12/11/2008)
396 Memorandum in Opposition to 376 Defendant's Motion in Limine No. 3 to Bifurcate Trial of Liability and Equitable Relief filed byErnesto G. Lira. (White, Mark) (Filed on 12/11/2008) Modified on 12/12/2008 (ys, COURT STAFF). (Entered: 12/11/2008)

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12/11/2008
12/11/2008
12/15/2008
12/16/2008 12/16/2008 12/16/2008 12/16/2008 12/16/2008 12/18/2008 12/18/2008 12/19/2008 12/22/2008 12/22/2008 12/23/2008
12/23/2008
12/23/2008 12/29/2008 12/30/2008

397 Memorandum in Opposition to 371 Defendant's Motion in Limine No. 4: to Present Confidential Testimony in a Closed Courtroom filed byErnesto G. Lira. (White, Mark) (Filed on 12/11/2008) Modified on 12/12/2008 (ys, COURT STAFF). (Entered: 12/11/2008)
398 Memorandum in Opposition to 384 Defendant's Motion in Limine No. 5: for a Service Extension on His Trial Declarations filed byErnesto G. Lira. (Attachments: # 1 Exhibit)(White, Mark) (Filed on 12/11/2008) Modified on 12/12/2008 (ys, COURT STAFF). (Entered: 12/11/2008)
399 Memorandum in Opposition re 392 MOTION to have supplemental expert deposition taken telephonically Response/Opposition to Pl.'s Letter Brief Re Telephonic Deposition filed byMatthew Cate. (Huynh, Neah) (Filed on 12/15/2008) (Entered: 12/15/2008)
400 Defendant's Objections to 383 Plaintiff's Proposed Conclusions of Law by Matthew Cate. (Feudale, Scott) (Filed on 12/16/2008) Modified on 12/17/2008 (ys, COURT STAFF). (Entered: 12/16/2008)
401 Defendant's Preliminary Objections to 389 Plaintiff's List of Trial Exhibits by Matthew Cate. (Huynh, Neah) (Filed on 12/16/2008) Modified on 12/17/2008 (ys, COURT STAFF). (Entered: 12/16/2008)
402 OBJECTIONS to 376 Defendant's List of Proposed Trial Exhibits by Ernesto G. Lira. (Chapman, William) (Filed on 12/16/2008) Modified on 12/17/2008 (ys, COURT STAFF). (Entered: 12/16/2008)
403 OBJECTIONS to Defendant's Objections to Plaintiff's List of Witnesses by Matthew Cate. (Huynh, Neah) (Filed on 12/16/2008) (Entered: 12/16/2008)
404 Exhibit List Defendant's AMENDED List of Trial Exhibits by Matthew Cate.. (Huynh, Neah) (Filed on 12/16/2008) (Entered: 12/16/2008)
405 FINAL PRETRIAL SCHEDULING ORDER (SI, COURT STAFF) (Filed on 12/18/2008) (Entered: 12/18/2008)
406 Witness List by Matthew Cate Defendant's Second Amended List of Witnesses (with summaries). (Huynh, Neah) (Filed on 12/18/2008) (Entered: 12/18/2008)
407 Minute Entry: Pretrial Conference (Date Filed: 12/19/2008). (Court Reporter McVickar.) (ts, COURT STAFF) (Date Filed: 12/19/2008) (Entered: 12/19/2008)
408 APPLICATION for Writ of of Habeas Corpus Ad Testificandum Requiring the Appearance of Inmate Freddie Leyba at Trial by Ernesto G. Lira. (White, Mark) (Filed on 12/22/2008) (Entered: 12/22/2008)
409 Proposed Order re 408 Application for Writ by Ernesto G. Lira. (White, Mark) (Filed on 12/22/2008) (Entered: 12/22/2008)
410 Declaration of Scott Feudale in Support of 411 Defendant's Opposition to Pl's Applic. & Writ of Habeas Corpus Ad Testificandum Requiring the Attendance of Inmate Freddie Leyba at Trial filed byMatthew Cate. (Attachments: # 1 Exhibit 1)(Feudale, Scott) (Filed on 12/23/2008) Modified on 12/24/2008 (ys, COURT STAFF). (Entered: 12/23/2008)
411 Defendant's Opposition to 408 Plaintiff's Application & Writ of Habeas Corpus Ad Testificandum Requiring the Attendance of Inmate Freddie Leyba at Trial (Docket 408) filed byMatthew Cate. (Feudale, Scott) (Filed on 12/23/2008) Modified on 12/24/2008 (ys, COURT STAFF). (Entered: 12/23/2008)
412 ORDER for Writ re 408 . Signed by Judge Illston on 12/23/08. (ts, COURT STAFF) (Filed on 12/23/2008) Modified on 12/24/2008 (ys, COURT STAFF). (Entered: 12/23/2008)
417 USCA ORDER re the petitiner's Emergency Petition for Writ of Mandamus. (ys, COURT STAFF) (Filed on 12/29/2008) (Entered: 01/06/2009)
413 MOTION Defendant's Motion for Clarification filed by Matthew Cate. (Feudale, Scott) (Filed on 12/30/2008) (Entered: 12/30/2008)

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12/30/2008 12/30/2008 12/31/2008 01/09/2009 01/11/2009 01/11/2009 01/13/2009
01/14/2009
01/15/2009 01/15/2009 01/15/2009
01/19/2009 01/20/2009

414 Declaration of Scott Feudale in Support of 413 MOTION Defendant's Motion for Clarification filed byMatthew Cate. (Attachments: # 1 Exhibit 1)(Related document(s) 413 ) (Feudale, Scott) (Filed on 12/30/2008) (Entered: 12/30/2008)
415 Proposed Order Granting 413 Defendant's Motion for Clarification by Matthew Cate. (Feudale, Scott) (Filed on 12/30/2008) Modified on 1/5/2009 (ys, COURT STAFF). (Entered: 12/30/2008)
416 Memorandum in Opposition to 413 Defendant's Motion for Clarification filed byErnesto G. Lira. (White, Mark) (Filed on 12/31/2008) Modified on 1/5/2009 (ys, COURT STAFF). (Entered: 12/31/2008)
418 Exhibit List −− Second Amended List of Exhibits by Ernesto G. Lira.. (White, Mark) (Filed on 1/9/2009) (Entered: 01/09/2009)
419 Exhibit List Defendant's Second Amended List of Trial Exhibits by Matthew Cate.. (Huynh, Neah) (Filed on 1/11/2009) (Entered: 01/11/2009)
420 Proposed Findings of Fact by Matthew Cate JOINT FINDINGS OF FACT. (Huynh, Neah) (Filed on 1/11/2009) (Entered: 01/11/2009)
421 Transcript of Proceedings held on January 13, 2009, Volume One of Trial Transcript, before Judge Susan Illston. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, belle_ball@cand.uscourts.gov, Telephone number (415)373−2529. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/10/2009. (Ball, Belle) (Filed on 1/13/2009) (Entered: 01/13/2009)
422 Transcript of Proceedings held on January 14, 2009, Volume 2 of Trial Transcript, before Judge Susan Illston. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, belle_ball@cand.uscourts.gov, Telephone number (415)373−2529. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/13/2009. (Ball, Belle) (Filed on 1/14/2009) (Entered: 01/14/2009)
423 Minute Entry: Bench Trial held on 1/13/2009 before Illston (Date Filed: 1/15/2009). (Court Reporter Belle Ball.) (ts, COURT STAFF) (Date Filed: 1/15/2009) (Entered: 01/15/2009)
424 Minute Entry: Bench Trial held on 1/14/2009 before Illston (Date Filed: 1/15/2009). (Court Reporter Belle Ball.) (ts, COURT STAFF) (Date Filed: 1/15/2009) (Entered: 01/15/2009)
425 Transcript of Proceedings held on January 15, 2009, Volume 3 of Trial Transcript, before Judge Susan Illston. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, belle_ball@cand.uscourts.gov, Telephone number (415)373−2529. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/13/2009. (Ball, Belle) (Filed on 1/15/2009) (Entered: 01/15/2009)
426 Statement of Direct Testimony for Daniel B. Vasquez by Ernesto G. Lira. (White, Mark) (Filed on 1/19/2009) (Entered: 01/19/2009)
427 Transcript of Proceedings held on January 20, 2009, Volume 4 of Trial Transcript, before Judge Susan Illston. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, belle_ball@cand.uscourts.gov, Telephone number (415)373−2529. Per General Order

Case: 3:00-cv-905 As of: 01/15/2016 11:14 AM PST 53 of 61

01/21/2009 01/21/2009
01/22/2009
01/22/2009 01/23/2009 01/23/2009 01/23/2009 01/23/2009 01/28/2009 01/28/2009 01/28/2009

No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/17/2009. (Ball, Belle) (Filed on 1/20/2009) (Entered: 01/20/2009)
428 Request for Judicial Notice re Huelga Bird filed byErnesto G. Lira. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(White, Mark) (Filed on 1/21/2009) (Entered: 01/21/2009)
429 Transcript of Proceedings held on January 21, 2009, Volume 5 of Trial Transcript, before Judge Susan Illston. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, belle_ball@cand.uscourts.gov, Telephone number (415)373−2529. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/20/2009. (Ball, Belle) (Filed on 1/21/2009) (Entered: 01/21/2009)
430 Transcript of Proceedings held on January 22, 2009, Volume 6 of Trial Transcript, before Judge Susan Illston. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, belle_ball@cand.uscourts.gov, Telephone number (415)373−2529. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/20/2009. (Ball, Belle) (Filed on 1/22/2009) (Entered: 01/22/2009)
435 ORDER granting plaintiffs permission to enter the Federal Building and Courtroom 10 located at 450 Golden Gate, SF, CA.. Signed by Judge Susan Illston on 1/8/09. (ys, COURT STAFF) (Filed on 1/22/2009) (Entered: 01/27/2009)
431 Minute Entry: Bench Trial held on 1/15/2009 before Illston (Date Filed: 1/23/2009). (Court Reporter B. Ball.) (ts, COURT STAFF) (Date Filed: 1/23/2009) (Entered: 01/23/2009)
432 Minute Entry: Bench Trial held on 1/20/2009 before Illston (Date Filed: 1/23/2009). (Court Reporter Ball.) (ts, COURT STAFF) (Date Filed: 1/23/2009) (Entered: 01/23/2009)
433 Memorandum in Opposition to 428 Defendant's Opposition to Plaintiff's Request for Judicial Notice filed byMatthew Cate. (Feudale, Scott) (Filed on 1/23/2009) Modified on 1/26/2009 (ys, COURT STAFF). (Entered: 01/23/2009)
434 Declaration of Scott J. Feudale in Support of 433 Memorandum in Opposition filed byMatthew Cate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 433 ) (Feudale, Scott) (Filed on 1/23/2009) (Entered: 01/23/2009)
436 Minute Entry: Bench Trial held on 1/21/2009 before Illston (Date Filed: 1/28/2009). (Court Reporter B. Ball.) (ts, COURT STAFF) (Date Filed: 1/28/2009) (Entered: 01/28/2009)
437 Minute Entry: Bench Trial held on 1/22/2009 before Illston (Date Filed: 1/28/2009). (Court Reporter B. Ball.) (ts, COURT STAFF) (Date Filed: 1/28/2009) (Entered: 01/28/2009)
438 Transcript of Proceedings held on January 28, 2009, Volume 7 of Trial Transcript, before Judge Susan Illston. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373−2529. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may

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01/30/2009
02/03/2009
02/11/2009 02/11/2009 02/11/2009 02/11/2009 02/11/2009 02/12/2009 02/12/2009 02/12/2009 02/13/2009
02/17/2009

be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/27/2009. (Ball, Belle) (Filed on 1/28/2009) (Entered: 01/28/2009)
439 Transcript of Proceedings held on January 29, 2009, Volume 8 of Trial Transcript, before Judge Susan Illston. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373−2529. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/27/2009. (Ball, Belle) (Filed on 1/30/2009) (Entered: 01/30/2009)
440 Transcript of Proceedings held on February 3, 2009, Volume 9 of Trial Transcript, before Judge Susan Illston. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373−2529. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/1/2009. (Ball, Belle) (Filed on 2/3/2009) (Entered: 02/03/2009)
441 TRIAL BRIEF Defendant's Post Trial Brief by Matthew Cate. (Feudale, Scott) (Filed on 2/11/2009) (Entered: 02/11/2009)
442 Proposed Findings of Fact by Matthew Cate [Proposed] Findings of Fact and Conclusions of Law; Order. (Feudale, Scott) (Filed on 2/11/2009) (Entered: 02/11/2009)
443 Proposed Findings of Fact by Ernesto G. Lira (Post Trial). (Chapman, William) (Filed on 2/11/2009) (Entered: 02/11/2009)
444 TRIAL BRIEF (Post−Trial) by Ernesto G. Lira. (White, Mark) (Filed on 2/11/2009) (Entered: 02/11/2009)
445 Declaration of David Tristan Declaration of David Tristan; Correction to Trial Testimony filed byMatthew Cate. (Feudale, Scott) (Filed on 2/11/2009) (Entered: 02/11/2009)
446 Minute Entry: Bench Trial held on 1/28/2009 before Illston (Date Filed: 2/12/2009). (Court Reporter B. Ball.) (ts, COURT STAFF) (Date Filed: 2/12/2009) (Entered: 02/12/2009)
447 Minute Entry: Bench Trial held on 1/29/2009 before Illston (Date Filed: 2/12/2009). (Court Reporter B. Ball.) (ts, COURT STAFF) (Date Filed: 2/12/2009) (Entered: 02/12/2009)
448 Minute Entry: Bench Trial held on 2/3/2009 before Illston (Date Filed: 2/12/2009). (Court Reporter B. Ball.) (ts, COURT STAFF) (Date Filed: 2/12/2009) (Entered: 02/12/2009)
449 Transcript of Proceedings held on February 12, 2009, Volume 10 of Trial Transcript, before Judge Susan Illston. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373−2529. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/11/2009. (Ball, Belle) (Filed on 2/13/2009) (Entered: 02/13/2009)
452 Trial Witness Photos. (ys, COURT STAFF) (Filed on 2/17/2009) (Entered: 02/19/2009)

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02/17/2009 02/17/2009 02/18/2009 02/18/2009 02/19/2009
03/06/2009 09/30/2009 09/30/2009 10/09/2009
10/14/2009 10/14/2009 10/14/2009 10/30/2009 10/30/2009 10/30/2009
11/04/2009 11/12/2009 11/12/2009 11/12/2009

453 Second Amended Trial Exhibit List by plaintiff. (ys, COURT STAFF) (Filed on 2/17/2009) (Entered: 02/19/2009)
454 Second Amended Trial Exhibit List by defendants. (ys, COURT STAFF) (Filed on 2/17/2009) (Entered: 02/19/2009)
450 Minute Entry: Bench Trial completed on 2/12/2009 before Illston (Date Filed: 2/18/2009). (Court Reporter B. Ball.) (ts, COURT STAFF) (Date Filed: 2/18/2009) (Entered: 02/18/2009)
451 Clerk's Trial Worksheet (ts, COURT STAFF) (Filed on 2/18/2009) (Entered: 02/18/2009)
Trial Exhibit Location Bin #5, Charts, Bing #04 − (Plaintiff's 3 black binder, 1 sealed env. and 3 charts, Defendants' 1 blue binder and 1 sealed env.(#329)), plaintiff and defendants (trial exhibits/not admitted). (ys, COURT STAFF) (Filed on 2/19/2009) (Entered: 02/26/2009)
455 Seald Portoin of Trial Transcript of Proceedings held on 1/14/09, 1/15/09, 1/21/09, 1/28/09, 2/3/09, (c/r: Belle Ball) before Judge Susan Illston. FILED UNDER SEAL (ys, COURT STAFF) (Filed on 3/6/2009) (Entered: 03/09/2009)
456 FINDINGS OF FACT AND CONCLUSIONS OF LAW (SI, COURT STAFF) (Filed on 9/30/2009) (Entered: 09/30/2009)
457 JUDGMENT: Judgment is entered in favor of Ernesto Lira and against defendant. (SI, COURT STAFF) (Filed on 9/30/2009) (Entered: 09/30/2009)
458 STIPULATION for Order Extending Filing Deadlines for Plaintiff's Motion for Attorneys Fees and Defendant's Objections to Bill of Costs; Supporting Declaration of Counsel; Order for Extension by Ernesto G. Lira. (White, Mark) (Filed on 10/9/2009) (Entered: 10/09/2009)
459 ORDER setting 1/15/10 motion hearing (tf, COURT STAFF) (Filed on 10/14/2009) (Entered: 10/14/2009)
460 BILL OF COSTS of Chapman Popik & White by Ernesto G. Lira. (White, Mark) (Filed on 10/14/2009) (Entered: 10/14/2009)
461 BILL OF COSTS of Howard Rice by Ernesto G. Lira. (White, Mark) (Filed on 10/14/2009) (Entered: 10/14/2009)
462 NOTICE OF APPEAL as to 457 Judgment, 456 Findings of Fact & Conclusions of Law by Matthew Cate. Filing fee $ 455, receipt #34611038396. (Attachments: # 1 attachment)(ys, COURT STAFF) (Filed on 10/30/2009) (Entered: 11/02/2009)
RECEIVED: Civil Appeals Docketing Statement and Representation Statement forwarded to 9th Circuit US Court of Appeals re 462 Notice of Appeal.(ys, COURT STAFF) (Filed on 10/30/2009) (Entered: 11/02/2009)
463 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 462 Notice of Appeal (Attachments: # 1 appeal notification form)(ys, COURT STAFF) (Filed on 10/30/2009) (Additional attachment(s) added on 11/2/2009: # 2 docket sheet) (ys, COURT STAFF). (Entered: 11/02/2009)
464 USCA Case Number 09−17446 USCA for 462 Notice of Appeal filed by Matthew Cate. (ys, COURT STAFF) (Filed on 11/4/2009) (Entered: 11/05/2009)
465 MOTION for Leave to File Excess Pages filed by Ernesto G. Lira. Motion Hearing set for 11/20/2009 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (White, Mark) (Filed on 11/12/2009) (Entered: 11/12/2009)
466 Proposed Order re 465 MOTION for Leave to File Excess Pages by Ernesto G. Lira. (White, Mark) (Filed on 11/12/2009) (Entered: 11/12/2009)
467 Amended MOTION for Leave to File Excess Pages filed by Ernesto G. Lira. Motion Hearing set for 11/13/2009 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (White, Mark) (Filed on 11/12/2009) (Entered: 11/12/2009)

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11/16/2009 11/16/2009 11/16/2009 11/16/2009 11/16/2009 11/16/2009 11/16/2009 11/16/2009 11/16/2009 11/16/2009 11/16/2009 11/17/2009 12/11/2009 12/11/2009

468 MOTION for Attorney Fees ; Notice of Hearing; Supporting Memorandum of Points and Authorities filed by Ernesto G. Lira. Motion Hearing set for 1/15/2010 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (White, Mark) (Filed on 11/16/2009) (Entered: 11/16/2009)
469 Declaration of Morris J. Baller in Support of 468 MOTION for Attorney Fees ; Notice of Hearing; Supporting Memorandum of Points and Authorities filed byErnesto G. Lira. (Related document(s) 468 ) (White, Mark) (Filed on 11/16/2009) (Entered: 11/16/2009)
470 Declaration of Charles F.A. Carbone in Support of 468 MOTION for Attorney Fees ; Notice of Hearing; Supporting Memorandum of Points and Authorities, 469 Declaration in Support filed byErnesto G. Lira. (Attachments: # 1 Exhibit Exhibit A − Resume of C. Carbone)(Related document(s) 468 , 469 ) (White, Mark) (Filed on 11/16/2009) (Entered: 11/16/2009)
471 Declaration of William B. Chapman in Support of 469 Declaration in Support, 470 Declaration in Support, filed byErnesto G. Lira. (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Ex. B Part 1, # 3 Exhibit Ex. B Part 2, # 4 Exhibit Ex. B. Part 3, # 5 Exhibit Ex. C)(Related document(s) 469 , 470 ) (White, Mark) (Filed on 11/16/2009) (Entered: 11/16/2009)
472 Declaration of Richard M. Pearl in Support of 468 MOTION for Attorney Fees ; Notice of Hearing; Supporting Memorandum of Points and Authorities filed byErnesto G. Lira. (Attachments: # 1 Exhibit Ex. A)(Related document(s) 468 ) (White, Mark) (Filed on 11/16/2009) (Entered: 11/16/2009)
473 Declaration of Allen Ruby in Support of 468 MOTION for Attorney Fees ; Notice of Hearing; Supporting Memorandum of Points and Authorities filed byErnesto G. Lira. (Related document(s) 468 ) (White, Mark) (Filed on 11/16/2009) (Entered: 11/16/2009)
474 Declaration of Peter B. Sandmann in Support of 468 MOTION for Attorney Fees ; Notice of Hearing; Supporting Memorandum of Points and Authorities filed byErnesto G. Lira. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Related document(s) 468 ) (White, Mark) (Filed on 11/16/2009) (Entered: 11/16/2009)
475 Declaration of Mark A. White in Support of 468 MOTION for Attorney Fees ; Notice of Hearing; Supporting Memorandum of Points and Authorities filed byErnesto G. Lira. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Related document(s) 468 ) (White, Mark) (Filed on 11/16/2009) (Entered: 11/16/2009)
476 Declaration of Douglas Winthrop in Support of 468 MOTION for Attorney Fees ; Notice of Hearing; Supporting Memorandum of Points and Authorities filed byErnesto G. Lira. (Attachments: # 1 Exhibit Exhibit A)(Related document(s) 468 ) (White, Mark) (Filed on 11/16/2009) (Entered: 11/16/2009)
477 Declaration of Michelle L. Johnson in Support of 468 MOTION for Attorney Fees ; Notice of Hearing; Supporting Memorandum of Points and Authorities filed byErnesto G. Lira. (Related document(s) 468 ) (White, Mark) (Filed on 11/16/2009) (Entered: 11/16/2009)
478 EXHIBITS re 468 MOTION for Attorney Fees ; Notice of Hearing; Supporting Memorandum of Points and Authorities, 476 Declaration in Support, Exhibit B of Douglas Winthrop Declaration filed byErnesto G. Lira. (Related document(s) 468 , 476 ) (White, Mark) (Filed on 11/16/2009) (Entered: 11/16/2009)
479 ORDER granting leave to file brief up to 35 pages (tf, COURT STAFF) (Filed on 11/17/2009) (Entered: 11/17/2009)
480 MOTION to Stay Defendant's Motion to Stay the Court's September 30, 2009 Judgment filed by Matthew Cate. (Feudale, Scott) (Filed on 12/11/2009) (Entered: 12/11/2009)
481 Declaration of Michael Ruff in Support of 480 MOTION to Stay Defendant's Motion to Stay the Court's September 30, 2009 Judgment filed byMatthew Cate. (Related

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12/11/2009 12/14/2009
12/14/2009 12/14/2009
12/14/2009 12/15/2009 12/16/2009
12/16/2009 12/23/2009 12/23/2009
12/23/2009 01/04/2010 01/19/2010 01/19/2010 01/19/2010
01/20/2010

document(s) 480 ) (Feudale, Scott) (Filed on 12/11/2009) (Entered: 12/11/2009)
482 Proposed Order Granting Defendant's Motion to Stay September 30, 2009 Judgment by Matthew Cate. (Feudale, Scott) (Filed on 12/11/2009) (Entered: 12/11/2009)
483 Amended Motion re 480 MOTION to Stay Defendant's Motion to Stay the Court's September 30, 2009 Judgment Defendant's Amended Notice of Motion to Stay the Court's September 30, 2009 Judgment filed by Matthew Cate. (Feudale, Scott) (Filed on 12/14/2009) Modified on 12/15/2009 (ys, COURT STAFF). (Entered: 12/14/2009)
484 MOTION for Extension of Time to File Defendant's Motion to Change Time for Defendant to File His Opposition to Plaintiff's Motion for Fees and Bill of Costs filed by Matthew Cate. (Feudale, Scott) (Filed on 12/14/2009) (Entered: 12/14/2009)
485 Declaration of Scott J. Feudale in Support of 484 MOTION for Extension of Time to File Defendant's Motion to Change Time for Defendant to File His Opposition to Plaintiff's Motion for Fees and Bill of Costs filed byMatthew Cate. (Related document(s) 484 ) (Feudale, Scott) (Filed on 12/14/2009) (Entered: 12/14/2009)
486 Proposed Order Granting Defendant's Motion to Change Time to File His Opposition to Plaintiff's Motion for Attorneys Fees and Bill of Costs by Matthew Cate. (Feudale, Scott) (Filed on 12/14/2009) (Entered: 12/14/2009)
487 Response with certain condictions to 484 Motion filed byErnesto G. Lira. (White, Mark) (Filed on 12/15/2009) Modified on 12/16/2009 (ys, COURT STAFF). (Entered: 12/15/2009)
488 OBJECTIONS to re 487 Statement of Non−Opposition Defendant's Objection to Plaintiff's Request for Discovery in His Conditional Non−Opposition to Defendant's Request to Change Time by Matthew Cate. (Huynh, Neah) (Filed on 12/16/2009) (Entered: 12/16/2009)
489 ORDER granting 484 Motion for Extension of Time to File (tf, COURT STAFF) (Filed on 12/16/2009) (Entered: 12/16/2009)
490 Memorandum in Opposition to 483 Defendant's Motion for Stay of Judgment filed byErnesto G. Lira. (White, Mark) (Filed on 12/23/2009) Modified on 12/28/2009 (ys, COURT STAFF). (Entered: 12/23/2009)
491 DECLARATION of Mark A. White in support of 490 Memorandum in Opposition Defendant CDCR's Motion for Stay of Judgment filed byErnesto G. Lira. (Related document(s) 490 ) (White, Mark) (Filed on 12/23/2009) Modified on 12/28/2009 (ys, COURT STAFF). (Entered: 12/23/2009)
492 Proposed Order Denying Defendant CDCR's Motion for Stay of Judgment by Ernesto G. Lira. (White, Mark) (Filed on 12/23/2009) (Entered: 12/23/2009)
493 Defendant's Reply to 490 Plaintiff's Opposition to Defendant's Motion to Stay the Court's September 30, 2009 Judgment filed byMatthew Cate. (Feudale, Scott) (Filed on 1/4/2010) Modified on 1/5/2010 (ys, COURT STAFF). (Entered: 01/04/2010)
494 Memorandum in Opposition Defendant's Opposition to Plaintiff's Motion for Award of Attorney Fees filed byMatthew Cate. (Feudale, Scott) (Filed on 1/19/2010) (Entered: 01/19/2010)
495 Declaration of Scott J. Feudale in Support of 494 Memorandum in Opposition filed byMatthew Cate. (Attachments: # 1 Exhibit A)(Related document(s) 494 ) (Feudale, Scott) (Filed on 1/19/2010) (Entered: 01/19/2010)
496 Declaration of Andre Jardini in Support of 494 Memorandum in Opposition filed byMatthew Cate. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Related document(s) 494 ) (Feudale, Scott) (Filed on 1/19/2010) (Entered: 01/19/2010)
497 Minute Entry: Motion Hearing held on 1/15/2010 before Illston (Date Filed: 1/20/2010). (Court Reporter L. Zinn.) (tf, COURT STAFF) (Date Filed: 1/20/2010) (Entered: 01/20/2010)

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01/26/2010 01/27/2010 01/27/2010 01/28/2010 02/01/2010 02/02/2010 02/02/2010
02/02/2010
02/02/2010 02/02/2010
02/02/2010 02/08/2010 02/09/2010
02/12/2010
02/23/2010 02/26/2010

Judge Magistrate Judge Nandor J. Vadas no longer assigned to case. (glm, COURT STAFF) (Filed on 1/26/2010) (Entered: 01/26/2010)
498 Letter from Letter addressed to the Honorable Susan Illston from Scott J. Feudale, Deputy Attorney General. (Feudale, Scott) (Filed on 1/27/2010) (Entered: 01/27/2010)
499 Proposed Order re 498 Letter Proposed Order Denying Defendant's Motion to Stay by Matthew Cate. (Feudale, Scott) (Filed on 1/27/2010) (Entered: 01/27/2010)
500 ORDER denying 483 Motion to Amend/Correct ; (tf, COURT STAFF) (Filed on 1/28/2010) (Entered: 01/28/2010)
501 STIPULATION and Proposed Order Granting Plaintiff an Extended Page Limitation for the Reply in Support of His Motion for Award of Attorneys Fees by Ernesto G. Lira. (White, Mark) (Filed on 2/1/2010) (Entered: 02/01/2010)
502 Reply Memorandum in Support of 468 Plaintiff's Motion for Award of Attorneys Fees filed byErnesto G. Lira. (White, Mark) (Filed on 2/2/2010) Modified on 2/3/2010 (ys, COURT STAFF). (Entered: 02/02/2010)
503 Declaration of Robert D. Hallman in Support of 468 Motion for attorneys fees Supplemental Declaration filed byErnesto G. Lira. (Related document(s) 502 ) (White, Mark) (Filed on 2/2/2010) Modified on 2/3/2010 (ys, COURT STAFF). (Entered: 02/02/2010)
504 Declaration of Mark A. White in Support of 468 Plaintiff's Motion for Award of Attorneys'Fees and Costs, Supplemental filed byErnesto G. Lira. (Attachments: # 1 Exhibit B−C)(White, Mark) (Filed on 2/2/2010) Modified on 2/3/2010 (ys, COURT STAFF). (Entered: 02/02/2010)
505 EXHIBITS A, Part 1, to 504 Supplemental Declaration of M. White in Support of Motion for Attorneys Fees Award filed byErnesto G. Lira. (White, Mark) (Filed on 2/2/2010) Modified on 2/3/2010 (ys, COURT STAFF). (Entered: 02/02/2010)
506 EXHIBITS re 505 Exhibits, 504 Declaration in Support Exhibit A, Part 2, to Supplemental Declaration of M. White in Support of Motion for Award of Attorneys Fees filed byErnesto G. Lira. (Related document(s) 505 , 504 ) (White, Mark) (Filed on 2/2/2010) (Entered: 02/02/2010)
507 OBJECTIONS to and Request to Strike Improper Legal Opinion and Arguments from Jardini Declaration by Ernesto G. Lira. (White, Mark) (Filed on 2/2/2010) (Entered: 02/02/2010)
508 ORDER extending page limitation (tf, COURT STAFF) (Filed on 2/8/2010) (Entered: 02/08/2010)
509 MOTION to Strike Defendant's Motion to Strike Portions of Plaintiff's Reply Brief and Declarations Submitted in Support filed by Matthew Cate. Motion Hearing set for 2/19/2010 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Feudale, Scott) (Filed on 2/9/2010) (Entered: 02/09/2010)
510 Memorandum in Opposition to 509 Defendant's Motion to Strike Portions of Plaintiff's Reply Memo and Supplemental Declarations re Motion for Award of Attorneys Fees filed byErnesto G. Lira. (White, Mark) (Filed on 2/12/2010) Modified on 2/16/2010 (ys, COURT STAFF). (Entered: 02/12/2010)
511 Minute Entry: Motion Hearing held on 2/19/2010 before Illston (Date Filed: 2/23/2010). (Court Reporter L. Zinn.) (tf, COURT STAFF) (Date Filed: 2/23/2010) (Entered: 02/23/2010)
512 Transcript of Proceedings held on 01/15/2010, before Judge Susan Illston. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/27/2010. (Zinn, Lydia) (Filed on 2/26/2010) (Entered: 02/26/2010)

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02/26/2010 03/12/2010
03/12/2010
03/12/2010 03/23/2010 03/24/2010 03/24/2010 03/31/2010 04/02/2010 04/02/2010
04/02/2010 04/06/2010 04/08/2010 04/09/2010
04/09/2010 04/28/2010 04/28/2010 05/28/2010

513 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS re 467 , 468 , 509 . (SI, COURT STAFF) (Filed on 2/26/2010) (Entered: 02/26/2010)
514 MOTION to Stay THE COURTS ORDER AWARDING PLAINTIFF ATTORNEYS FEES AND COSTS filed by Matthew Cate. Motion Hearing set for 4/16/2010 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Feudale, Scott) (Filed on 3/12/2010) (Entered: 03/12/2010)
515 Declaration of David Lewis in Support of 514 MOTION to Stay THE COURTS ORDER AWARDING PLAINTIFF ATTORNEYS FEES AND COSTS filed byMatthew Cate. (Related document(s) 514 ) (Feudale, Scott) (Filed on 3/12/2010) (Entered: 03/12/2010)
516 Proposed Order re 514 MOTION to Stay THE COURTS ORDER AWARDING PLAINTIFF ATTORNEYS FEES AND COSTS by Matthew Cate. (Feudale, Scott) (Filed on 3/12/2010) (Entered: 03/12/2010)
517 STIPULATION and Order to Continue Hearing on Defendant CDCR's Motion for Stay of Attorneys Fees Order by Ernesto G. Lira. (White, Mark) (Filed on 3/23/2010) (Entered: 03/23/2010)
518 ORDER CONTINUING MOTION TO 4/23/10 (tf, COURT STAFF) (Filed on 3/24/2010) (Entered: 03/24/2010)
Set/Reset Deadlines as to 514 MOTION to Stay THE COURTS ORDER AWARDING PLAINTIFF ATTORNEYS FEES AND COSTS. Motion Hearing set for 4/23/2010 09:00 AM. (ys, COURT STAFF) (Filed on 3/24/2010) (Entered: 03/24/2010)
519 letter filed by Lira (tf, COURT STAFF) (Filed on 3/31/2010) (Entered: 03/31/2010)
520 Memorandum in Opposition to 514 Defendant's Motion for Stay of Order Awarding Attorneys Fees and Costs filed byErnesto G. Lira. (White, Mark) (Filed on 4/2/2010) Modified on 4/5/2010 (ys, COURT STAFF). (Entered: 04/02/2010)
521 DECLARATION in in support of 520 Memorandum in Opposition to Defendant's Motion for Stay of Order Awarding Attorneys Fees and Costs filed byErnesto G. Lira. (Related document(s) 520 ) (White, Mark) (Filed on 4/2/2010) Modified on 4/5/2010 (ys, COURT STAFF). (Entered: 04/02/2010)
522 Letter from Scott Feudale, DAG, addressed to Officer Dywain Middleton. (Feudale, Scott) (Filed on 4/2/2010) (Entered: 04/02/2010)
523 Minute Entry: Further Case Management Conference held on 4/1/2010 before Illston (Date Filed: 4/6/2010). () (tf, COURT STAFF) (Date Filed: 4/6/2010) (Entered: 04/06/2010)
524 Letter from Scott Feudale, Deputy Attorney General Re: Lira's Custody Status. (Feudale, Scott) (Filed on 4/8/2010) (Entered: 04/08/2010)
525 Reply to 520 Opposition Defendant's Reply to Plaintiff's Opposition to Defendant's Motion to Stay Order Awarding Attorney's Fees and Costs filed byMatthew Cate. (Feudale, Scott) (Filed on 4/9/2010) Modified on 4/12/2010 (ys, COURT STAFF). (Entered: 04/09/2010)
526 Request for Judicial Notice Defendant's Request for Judicial Notice filed byMatthew Cate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Feudale, Scott) (Filed on 4/9/2010) (Entered: 04/09/2010)
527 ORDER STAYING ORDER AWARDING PLAINTIFF ATTORNEYS' FEES AND COSTS PENDING RESOLUTION OF NINTH CIRCUIT APPEAL re 514 . (SI, COURT STAFF) (Filed on 4/28/2010) (Entered: 04/28/2010)
528 Minute Entry: Motion Hearing held on 4/23/2010 before Illston (Date Filed: 4/28/2010). (Court Reporter Yeomans.) (tf, COURT STAFF) (Date Filed: 4/28/2010) (Entered: 04/28/2010)
529 MOTION for Extension of Time to File Defendant's Motion to Change Time for Defendant to Post Supersedeas Bond filed by Matthew Cate. (Feudale, Scott) (Filed on 5/28/2010) (Entered: 05/28/2010)

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05/28/2010
05/28/2010
05/28/2010 06/01/2010
06/02/2010 06/11/2010 06/11/2010
06/11/2010
06/11/2010 06/16/2010 06/25/2010 10/21/2010 10/21/2010 01/06/2011 08/23/2011 09/14/2011 09/20/2011 09/22/2011

530 Declaration of Scott J. Feudale in Support of 529 MOTION for Extension of Time to File Defendant's Motion to Change Time for Defendant to Post Supersedeas Bond filed byMatthew Cate. (Related document(s) 529 ) (Feudale, Scott) (Filed on 5/28/2010) (Entered: 05/28/2010)
531 Declaration of Margaret Jost Khan in Support of 529 MOTION for Extension of Time to File Defendant's Motion to Change Time for Defendant to Post Supersedeas Bond filed byMatthew Cate. (Related document(s) 529 ) (Feudale, Scott) (Filed on 5/28/2010) (Entered: 05/28/2010)
532 Proposed Order Granting Defendant's Motion to Change Time to Post a Supersedeas Bond by Matthew Cate. (Feudale, Scott) (Filed on 5/28/2010) (Entered: 05/28/2010)
533 Statement of Non−Opposition re 529 MOTION for Extension of Time to File Defendant's Motion to Change Time for Defendant to Post Supersedeas Bond (Statement of Non−Opposition to Defendant's Motion for Extension) by Ernesto G. Lira. (White, Mark) (Filed on 6/1/2010) Modified on 6/2/2010 (ys, COURT STAFF). (Entered: 06/01/2010)
534 ORDER granting 529 Motion for Extension of Time to File (tf, COURT STAFF) (Filed on 6/2/2010) (Entered: 06/02/2010)
535 MOTION for Extension of Time to File Defendant's Second Request for an Extension of Time to Post a Supersedeas Bond filed by Matthew Cate. (Huynh, Neah) (Filed on 6/11/2010) (Entered: 06/11/2010)
536 Declaration of Scott Feudale in Support of 535 MOTION for Extension of Time to File Defendant's Second Request for an Extension of Time to Post a Supersedeas Bond filed byMatthew Cate. (Related document(s) 535 ) (Huynh, Neah) (Filed on 6/11/2010) (Entered: 06/11/2010)
537 Declaration of Margaret Khan in Support of 535 MOTION for Extension of Time to File Defendant's Second Request for an Extension of Time to Post a Supersedeas Bond filed byMatthew Cate. (Related document(s) 535 ) (Huynh, Neah) (Filed on 6/11/2010) (Entered: 06/11/2010)
538 Proposed Order re 535 MOTION for Extension of Time to File Defendant's Second Request for an Extension of Time to Post a Supersedeas Bond by Matthew Cate. (Huynh, Neah) (Filed on 6/11/2010) (Entered: 06/11/2010)
539 ORDER granting 535 Motion for Extension of Time to File (tf, COURT STAFF) (Filed on 6/16/2010) (Entered: 06/16/2010)
540 NOTICE by Matthew Cate Defendant's Notice of Posting a Supersedeas Bond (Attachments: # 1 Exhibit Attachment)(Feudale, Scott) (Filed on 6/25/2010) (Entered: 06/25/2010)
541 Costs Taxed in amount of $ 24,220.34 against Defendants, re doc 460 BILL OF COSTS of Chapman Popik & White. (cgk, COURT STAFF) (Filed on 10/21/2010) (Entered: 10/21/2010)
542 Costs Taxed in amount of $ 1,422.00 against Defendants, re doc 46 BILL OF COSTS of Howard Rice. (cgk, COURT STAFF) (Filed on 10/21/2010) (Entered: 10/21/2010)
Certified and Transmitted Record on Appeal to US Court of Appeals re 462 Notice of Appeal (ys, COURT STAFF) (Filed on 1/6/2011) (Entered: 01/06/2011)
543 USCA Memorandum as to 462 Notice of Appeal filed by Matthew Cate : Affirmed. (ysS, COURT STAFF) (Filed on 8/23/2011) (Entered: 09/01/2011)
544 MANDATE of USCA as to 462 Notice of Appeal : Affirmed. (ysS, COURT STAFF) (Filed on 9/14/2011) (Entered: 09/22/2011)
Appeal Record Returned: (ysS, COURT STAFF) (Filed on 9/20/2011) (Entered: 09/21/2011)
545 CLERKS Letter Spreading Mandate to Counsel re 462 Notice of Appeal. (ysS, COURT STAFF) (Filed on 9/22/2011) (Entered: 09/22/2011)

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06/20/2012 06/22/2012

546 STIPULATION WITH PROPOSED ORDER Stipulation and Order Confirming Satisfaction of Orders Awarding Attorneys' Fees and Costs filed by Matthew Cate. (Feudale, Scott) (Filed on 6/20/2012) (Entered: 06/20/2012)
547 ORDER signed on 6/21/12 by Judge Susan Illston granting 546 Stipulation Confirming Satisfaction of Orders Awarding Attorneys' Fees and Costs (tfS, COURT STAFF) (Filed on 6/22/2012) (Entered: 06/22/2012)