Booker v. Cambra

Full title: Otis H. BOOKER, IV, Plaintiff-Appellant, v. Steve CAMBRA, Jr., Warden…

Court: United States Court of Appeals, Ninth Circuit

Date published: Feb 21, 2001

4 F. App'x 431 (9th Cir. 2001)

Opinion

4 Fed.Appx. 431 (9th Cir. 2001) Otis H. BOOKER, IV, Plaintiff-Appellant, v. Steve CAMBRA, Jr., Warden; Pelican Bay State Prison, Defendants-Appellees. No. 97-17106. D.C. No. CV-97-00069-DLJ. United States Court of Appeals, Ninth Circuit. February 21, 2001

Submitted February 12, 2001. ¹

1 The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Inmate filed petition for writ of habeas corpus seeking release from administrative segregation. The United States District Court for the Northern District of California, D. Lowell Jensen, J., construed petition as a civil rights complaint and dismissed it. Inmate appealed. The Court of Appeals held that evidence of inmate's gang affiliation was sufficiently substantive and reliable to constitute some evidence supporting decision to place inmate in administrative segregation.

Affirmed.

Appeal from the United States District Court for the Northern District of California, D. Lowell Jensen, District Judge, Presiding.

Before LEAVY, THOMAS, and RAWLINSON, Circuit Judges.

MEMORANDUM ²

2 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

Otis H. Booker, IV, a California state prisoner, appeals pro se the district court's order construing his habeas petition as a complaint under 42 U.S.C. § 1983, and dismissing it under 28 U.S.C. § 1915A(a). In his petition, Booker sought release from administrative segregation into the general prison population on the grounds that evidence of his association with a prison gang was unreliable. We have jurisdiction pursuant to 28 U.S.C. § 1291.

The district court did not abuse its discretion by construing Booker's habeas petition as a section 1983 complaint. See Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam) (federal court may construe habeas petition as section 1983 complaint); Toussaint v. McCarthy, 801 F.2d 1080, 1102-03 (9th Cir.1986) (release of prisoner from administrative segregation falls within ambit of section 1983 action).

We review de novo the legal conclusion that "some evidence" supports the decision to place a prisoner in administrative segregation. See Cato v. Rushen,

Page 432.

824 F.2d 703, 705 n. 2 (9th Cir.1987) (citing Toussaint, 801 F.2d at 1087). The district court properly concluded that evidence of Booker's gang affiliation was sufficiently substantive and reliable to constitute "some evidence." See Toussaint, 801 F.2d at 1104-05; Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir.1987) (per curiam).

AFFIRMED.