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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MICHAEL HUNT,

NO. CIV. S-04-435 LKK/JFM P

Plaintiff,

v. O R D E R

COREY McKAY, et al., 

Defendants.

 /

Plaintiff, a state prisoner proceeding pro se, seeks relief

pursuant to 42 U.S.C. § 1983. The matter was referred to a United

States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and

Local General Order No. 262. On January 17, 2006, the magistrate

judge recommended that defendant Vance’s June 15, 2006 motion for

summary judgment be granted. The court has reviewed the

magistrate judge’s findings and recommendations. As discussed

below, the court declines to adopt the magistrate judge’s

recommendation.

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Defendant Vance asserts, and the magistrate judge agrees, that

the list on which plaintiff’s name appeared was only a list of

“suspected” Blood gang members. The list did not reflect

plaintiff’s status as a validated member of the Bloods. For this

reason, the magistrate judge concluded that the “rule announced in

Bruce does not apply to this case.” Findings and Recommendations

filed on January 17, 2006 at 8:2-3. 

The court cannot agree with this conclusion. Based on the

evidence tendered, it appears that there remains a disputed fact

that would defeat summary judgment. Specifically, plaintiff

maintains that the list generated by defendant was in fact a list

of “Blood” members for all practical purposes, see Pl.’s SDF 4, and

defendant asserts that the list was merely a list of “suspected”

Blood gang members. See Vance Dec. at ¶ 5. 

This dispute is significant. If in fact defendant was

classifying inmates according to gang status, then defendant cannot

avoid Bruce and other requirements for designating gang members.

In other words, if defendant was labeling those on the list

as only “suspected” gang members, but for all practical purposes,

was actually treating those on the list as “validated” gang

members, then defendant was using semantics to avoid the gang

validation procedure. 

That said, it is not clear to the court the actual

consequences of the list and if the inmates on the list were, in

fact, being treated as if they were validated “gang” members. It

appears that defendant has failed to show how the treatment of

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plaintiff was any different than the treatment of a inmate who was

designated as a gang member. 

For the reasons set forth above, the court DECLINES to adopt

the January 17, 2006 findings and recommendations and REMANDS the

case to the magistrate judge for further proceedings consistent

with this order.

IT IS SO ORDERED. 

DATED: March 24, 2006.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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