Jose Lopez v. Warden Horel

FILED
NOT FOR PUBLICATION FEB 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE CARLOS LOPEZ, No. 08-16827
Plaintiff - Appellant, D.C. No. 3:06-cv-04772-NJV
v.
MEMORANDUM *
WARDEN HOREL; M. VALDEZ,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Nandor J. Vadas, Magistrate Judge, Presiding
Submitted January 21, 2010 **
Before: SKOPIL, FARRIS and LEAVY, Circuit Judges.
Jose Carlos Lopez, a California state prisoner, appeals the district court’s
rejection of his claims that prison officials violated his due process rights by
validating him as a gang member and placing him in administrative segregation.
We affirm.
*
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).
DISCUSSION
“It is clear . . . that prisons have a legitimate penological interest in stopping
prison gang activity.” Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003). To that
end, California has developed procedures to identify and segregate gang members.
See 15 C.C.R. § 3378. Due process in that context requires only an informal,
nonadversary proceeding where the inmate receives notice of the charges and an
opportunity to present his views to the prison officials making the decision. See
Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986).
Here, Lopez participated in interviews with prison officials, was informed of
the evidence indicating his status as a gang member, and was given the opportunity
to respond. That procedure satisfies the due process requirements. See Barnett v.
Centoni, 31 F.3d 813, 815 (9th Cir. 1994) (holding prisoner’s due process rights
were not violated when he was notified of a reclassification and had an opportunity
to present his views); Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir. 1990)
(noting due process requires a prisoner have the opportunity to present his views to
the official deciding whether to transfer the prisoner to administrative segregation).
Lopez contends there was insufficient evidence to validate him as a gang
member. We disagree. Prison officials relied on reports from a confidential
informant, gang symbols found in Lopez’s cell, and seized communications
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between Lopez and known gang members. Such evidence is plainly sufficient to
meet the “some evidence” standard used in these circumstances, and accordingly,
there was no due process violation. See Bruce, 351 F.3d at 1287-88 (holding no
due process violation when prison officials relied upon a police report indicating
the inmate had been associated with a gang, the inmate’s codefendant was a gang
member, and a confidential prison informant identified the inmate as a gang
member); Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir. 1987) (holding
“some evidence” standard may be satisfied with information obtained from a
reliable and credible informant).
Finally, Lopez asserts the district court should have granted his request for
appointed counsel. Although generally a civil litigant has no right to counsel, a
court may appoint counsel when there are “exceptional circumstances.” See
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), cert. denied, ___ S. Ct. ___
(U.S. Jan. 25, 2010) (No. 09-6429). We agree with the district court that Lopez
failed to demonstrate any exceptional circumstance to warrant an appointment of
counsel.
AFFIRMED.
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