Sergio Alejandro Gamez v. F. Gonzales;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO ALEJANDRO GAMEZ,
Plaintiff - Appellant,
v.
F. GONZALES; et al.,
Defendants - Appellees.
No. 11-17215
D.C. No. 1:08-cv-01113-MJL-PCL
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
M. James Lorenz, District Judge, Presiding
Submitted July 17, 2012**
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Sergio Alejandro Gamez, a California state prisoner, appeals pro se from the
district court’s judgment in his 42 U.S.C. § 1983 action alleging constitutional
violations in connection with his validation as an associate of a prison gang and
FILED
JUL 25 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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confinement in the security housing unit (“SHU”). We have jurisdiction under 28
U.S.C. § 1291. We review de novo. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir.
2003) (summary judgment); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
1998) (order) (dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)).
We may affirm on any ground supported by the record. Thompson v. Paul, 547
F.3d 1055, 1058-59 (9th Cir. 2008). We affirm in part, vacate in part, and remand.
Gamez’s equal protection “class of one” claims were properly dismissed
because prison administrators have a rational basis for segregating validated gang
associates from the general prison population, and Gamez’s assertion that he was
the only prisoner required to debrief in order to be released from the SHU is
facially implausible. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(claim must be “plausible on its face”); Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (recognizing “class of one” equal protection claim where
ordinance targeted a single individual on basis that state action was irrational and
arbitrary); Whitley v. Albers, 475 U.S. 312, 321-22 (1986) (courts must accord
prison administrators “wide-ranging deference in the adoption and execution of
policies and practices that in their judgment are needed to preserve internal order
and discipline and maintain institutional security” (internal quotation marks and
citation omitted)).

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The district court properly granted summary judgment to defendants on
Gamez’s contentions that his due process rights were violated by the failure to
review his gang status prior to 2009 because he failed to raise a triable dispute that
he was entitled to an earlier review. See Bruce, 351 F.3d at 1287 (summary
judgment is “appropriate if the evidence, read in the light most favorable to the
nonmoving party, demonstrates that there is no genuine issue of material fact”).
However, there is a genuine dispute of material fact as to whether the
evidence used by defendants in support of Gamez’s 2010 re-validation as a gang
associate, a report of an interview with a confidential informant, had “sufficient
indicia of reliability,” through corroboration or other means to meet the “some
evidence” standard as required to satisfy due process. See Bruce, 351 F.3d at 1288
(explaining that due process gang validation claims are subject to the “some
evidence” standard, and concluding that “any of [] three pieces of evidence would
have sufficed to support the validation because each has sufficient indicia of
reliability”); Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir. 1990) (discussing
indicia of reliability); see also Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir.
1987) (per curiam) (discussing the “some evidence” requirement in the context of
prison disciplinary segregation, and setting forth criteria to guide review of the
determination of reliability of “an unidentified inmate informant”).

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Accordingly, we vacate the court’s summary judgment for defendants on
Gamez’s due process claims relating to his re-validation as a prison gang associate
in 2010 and remand for further proceedings. We also vacate the dismissal of
Gamez’s retaliation claim associated with the 2010 re-validation and remand for
the district court to consider the claim in the first instance.
Issues that are not specifically and distinctly raised and argued in the
opening brief, including those relating to the district court’s determination that
review of Gamez’s 2003 gang validation was barred by the statute of limitations,
are deemed waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Gamez’s remaining contentions, including those challenging discovery and
evidentiary issues, are unpersuasive.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.

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