427 F.3d 1164 (9th Cir. 2005), 02-16325, Lira v. Herrera

Docket Nº:02-16325.
Citation:427 F.3d 1164
Party Name:Ernesto G. LIRA, Plaintiff-Appellant, v. Lt. HERRERA; M. Piland; J. Briddle; A. Scribner; J. Stokes; B. Heaps, K. Cruse; Bruce; Fielder; M. Nimrod; K. Mann; D. Best; C. Patten; D. Bradbury; K.C. Bolles; Edward Alameida; Asst. Warden Busser, Defendants-Appellees.
Case Date:November 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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427 F.3d 1164 (9th Cir. 2005)

Ernesto G. LIRA, Plaintiff-Appellant,


Lt. HERRERA; M. Piland; J. Briddle; A. Scribner; J. Stokes; B. Heaps, K. Cruse; Bruce; Fielder; M. Nimrod; K. Mann; D. Best; C. Patten; D. Bradbury; K.C. Bolles; Edward Alameida; Asst. Warden Busser, Defendants-Appellees.

No. 02-16325.

United States Court of Appeals, Ninth Circuit.

November 1, 2005

Argued and Submitted November 2, 2004

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Douglas A. Winthrop and Warren Metlitzky, Howard Rice Nemerovski Canady Falk & Rabin, San Francisco, California, for the plaintiff-appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Paul D. Gifford, Senior Assistant Attorney General, Frances T. Grunder, Senior Assistant Attorney General, Rochelle C. Holzmann, Supervising Deputy Attorney General, Barbara C. Spiegel, Supervising Deputy Attorney General, and Jonathan L. Wolff, Supervising Deputy Attorney General, San Francisco, California, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California Susan Yvonne Illston, District Judge, Presiding D.C. No. CV-00-00905-SI

Before: Stephen Reinhardt, David R. Thompson, and Marsha S. Berzon, Circuit Judges.


BERZON, Circuit Judge:

Ernesto Lira was for several years placed in administrative segregation, and later in a Special Housing Unit (SHU), because prison officials determined that he was affiliated with a prison gang and posed a threat to prison safety. He filed this suit under 42 U.S.C. § 1983, protesting that his treatment at California's Deuel Vocational Institute and Pelican Bay Prison violated due process. The district court granted defendants' joint motion for summary judgment on the ground that the sole remaining cause of action encompassed both a fully exhausted claim and some unexhausted claims. We must decide whether the district court properly construed the Prison Litigation Reform Act's ("PLRA") exhaustion requirement, 42 U.S.C. § 1997e(a).


Lira is a former inmate of the California corrections system. He entered the Deuel Vocational Institute (DVI) in 1995, where he was immediately "validated" as an associate of the Northern Structure gang. "Validation" as a prison gang member is a designation reserved for prison gang members believed to pose a threat to prison safety. For Lira, the consequence of validation was placement in administrative segregation1 at DVI and then in the Special

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Housing Unit ("SHU")2 of Pelican Bay State Prison. At both institutions, Lira was locked in his cell for twenty-two and one half hours each day.

On January 4, 1996, Lira appeared before DVI's Institution Classification Committee (ICC) for his initial review of the validation designation.3 See DOM § 62050.10.6. He was told that there was "some evidence" of his membership in the Northern Structure gang, but not what the evidence was. Lira again appeared before the ICC at monthly reviews in February and March 1996 but was given no further information.

After court appearances in the spring of 1996 Lira was returned to DVI where he was placed, again, in administrative segregation. On June 27, 1996, Lira attended another ICC review of his placement, but, once more, was given no details concerning the evidence substantiating his validation as a Northern Structure gang member.

At that time, it appears, the Department of Corrections' Special Services Unit (SSU), did not have Lira's "C-file," the central file containing all documentation concerning an inmate. The C-file contained the information that formed the basis for Lira's initial administrative segregation placement. The SSU received the C-file after Lira's June 1996 review but before his July 1996 review.

On July 29, 1996, after approximately seven months of placement in administrative segregation, Lira resorted to the Department's three-level inmate grievance process to complain about his validation. A grievance is usually first considered by a prison's Appeals Coordinator and involves an interview with the inmate. See Cal. Code Regs. tit. 15, § 3084.3(a), (b). The institution's head or regional parole administrator reviews the grievance at the second level of review. See id. § 3084.5(c), (e)(1). Finally, a designee of the Director of the Department of Corrections hears the third formal appeal. See id. § 3084.5(e)(2).

Lira wrote a description of his problem on his grievance form, explaining that he had never received the evidence that constituted

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his validation as a Northern Structure member and arguing that he therefore could not prepare for the reviews of his placement in administrative segregation. He also represented that he had spoken with a Merced County Sheriff's Office correctional officer who had provided the prison with information about his status as a Northern Structure associate. According to Lira, the officer told him that he had reported only that Lira had been housed with the Northern Structure inmates during a prior jail sentence, not that Lira himself was in the Northern Structure gang. Lira also complained that he had made a request for information concerning his validation from the ICC but received no response. In the section labeled "Action Requested," he stated: "#1 To be released from ad/ seg and returned to [general population], #2 remove all these 128-B from my C.D.C. file. 3. Be given a program, and left alone to do my time. I'm too old to play games, never have."

Lira received a first level response on August 22, 1996. His appeal was denied in light of the "staff belie[f] that [he] was an associate member of th[e] prison gang." Lira was told, however, that an investigation of his gang status was underway, because the July 2, 1993 document used to validate his membership in the Northern Structure gang "[did] not meet current departmental validation requirements."

Lira appealed the decision to the second level review on September 2, 1996, arguing that he was dissatisfied with the first level review because, as his first level interviewer had told him, the 1993 document used to justify his administrative segregation placement was "all wrong." Following Lira's transfer to the Pelican Bay State Prison, a second level response, denying relief, was issued, on September 27, 1996. While the second level review was pending, the SSU revalidated Lira as a gang associate, applying the then-current regulations. By the time of the second level response, the report used to validate Lira as a member of the Northern Structure gang had been reconsidered under the new regulations. Lira's second level appeal was denied on the basis that the revalidation was proper.

Lira received a copy of his C-file on October 18, 1996. He learned that his validation stemmed from information provided by a DVI correctional counselor in 1992 and 1993. The next day, Lira appealed the second level reviewer's decision on his July 29, 1996 grievance to the third level, that of the Director of the Department of Corrections. He explained his dissatisfaction as follows:

"First of all," to this date, and many request forms later, I have not received the suppose 128 B-2 dated 9-4-96 or any other documentation relied upon to validate me as something I'm not. I am now here at [Pelican Bay State Prison] with an indeterminate SHU. These chronos inclosed is all that I have received. Directors rule 3000 defines "gangs" means to engage or have engaged on behalf of an organization in unlawful acts. I have no serious "115."4 I am not satisfied and request a director's review.

The Director issued a denial of Lira's final appeal on January 24, 1997. The response memorandum summarized the issue as follows: "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." The Director level response indicated that Lira's continued detention in administrative segregation was appropriate because of the recent revalidation. Citing the relevant

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regulations, the memorandum concluded that "[t]he documentation and arguments presented are persuasive that the appellant fails to provide convincing proof that he was inappropriately removed from the general population."

Lira continued to be dissatisfied with his placement in administrative segregation. He sought and received confirmation from Merced County Sheriff's Department Correctional Officer Romero that the Merced County Sheriff's Department "cannot find any gang validation on Ernesto Lira in Merced County jail." Lira proceeded to file a second grievance on April 4, 1998, requesting "(A) immediate release from indeterminate SHU status; (B) that R. Romero's letter dated 3-8-1998 be entered into my C-File (in re: confidential section/ gang status); and (C) that the 128-B dated 5-10-93 in regards to what IGI Covello claims C.O. Romero told him be expunged, dropped, or reinvestigated for independent reliability."

The first level response memorandum to this grievance, dated August 6, 1998, explained that Lira's appeal was denied because the three items used to validate Lira's status as a Northern Structure gang member "[met] the criteria for use in the validation process." The reviewer contacted Officer R. Romero to verify that the letter was authentic. The memorandum explained that the letter had no bearing on Lira's validation within the prison, as the letter "merely refer[red] to Merced County Sheriff's Department consideration for validation." The response also denied Lira's request to have the letter added to his C-File.

Lira's second level appeal was also denied, on September 21, 1998. The...

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