                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 21 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MICHAEL REED DORROUGH,                           No. 11-17875

              Plaintiff - Appellant,             D.C. No. 1:08-cv-01366-LJO-
                                                 GBC
  v.

M. RUFF, Chairperson, Office of                  MEMORANDUM*
Correctional Safety; EVERETT W.
FISCHER, Committee Member of the
Office of Correctional Safety; T. L.
ROSENKRAUS; T. TURMEZEI; C.
EUBANKS, Instituitonal Gang
Investigator; J. STOCKER; J. GENTRY,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                      Argued and Submitted January 14, 2014
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WALLACE and BYBEE, Circuit Judges, and RESTANI, Judge.**

      Michael Reed Dorrough filed this action under 42 U.S.C. § 1983, alleging

that his right to due process under the Fourteenth Amendment was violated when

prison officials re-validated him as a member of the Black Guerilla Family gang.

Dorrough appeals from the district court’s judgment dismissing his Second

Amended Complaint (“SAC”). We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      “Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed

de novo. The facts alleged in a complaint are to be taken as true and must plausibly

give rise to an entitlement to relief.” Dougherty v. City of Covina, 654 F.3d 892,

897 (9th Cir. 2011) (internal quotation marks and citations omitted). Mere legal

conclusions, however, “are not entitled to the assumption of truth.” Id. (internal

quotation marks and citation omitted). In addition, we may affirm the district

court’s order of dismissal “on any ground supported by the record.” Sams v.

Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013).

      The documents in Dorrough’s re-validation package were properly before

the district court and are properly before us now. Although these documents were



        **
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
                                          2
not physically attached to the SAC, Dorrough does not contest their authenticity

and the SAC necessarily relies on them. Id. Furthermore, the district court took

judicial notice of these documents, and Dorrough does not appeal the district

court’s decision to do so. As a result, Dorrough has waived any argument to that

effect. See Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 858 n.4

(9th Cir. 1999) (“Arguments not raised in opening brief are waived.”).

      The prison officials complied with the requirements that they provide

Dorrough with “some notice of the charges against him and an opportunity to

present his views to the prison official charged with deciding whether to transfer

him to administrative segregation.” See Bruce v. Ylst, 351 F.3d 1283, 1287 (9th

Cir. 2003) (internal quotation marks and citation omitted). As a result, the sole

issue is whether there was “some evidence” to support Dorrough’s re-validation.

      Whether there was “some evidence” to support Dorrough’s re-validation is a

question of law. See Castro v. Terhune, 712 F.3d 1304, 1314 (9th Cir. 2013).

             “Some evidence” review requires us to ask only whether
             there is any evidence in the record that could support the
             conclusion. This test is minimally stringent. Accordingly,
             we do not examine the entire record, independently assess
             witness credibility, or reweigh the evidence. Evidence only
             must bear some indicia of reliability to be considered
             “some evidence.” Moreover, evidence may qualify as
             “some evidence,” even if it does not logically preclude[ ]
             any conclusion but the one reached.


                                          3
Id. (alteration in original) (internal quotation marks and citations omitted).

      The district court properly dismissed Dorrough’s complaint because more

than one of the source items in his re-validation package bear “some indicia of

reliability.” For example, we have held that “[p]roof that a[] [confidential]

informant previously supplied reliable information is sufficient” to establish

reliability. Zimmerlee v. Keeney, 831 F.2d 183, 187 (9th Cir. 1987). Here, the

prison officials indicated that both the March 30, 2006, and April 27, 2006,

confidential informants were considered reliable because “[p]art of the information

provided by the source(s) ha[d] already proven to be true.” These confidential

informants were also considered reliable because the “source[s] incriminated

[themselves] in a criminal activity at the time of providing the information.” Either

of these bases is sufficient indicia of reliability under the minimally-stringent

“some evidence” standard. Therefore, “some evidence” supported Dorrough’s re-

validation as a BGF gang member, and Dorrough was not denied due process as a

matter of law.

      Finally, even assuming the district court failed to evaluate the documents in

the re-validation package, it would be “pointless” to remand the case because the

record is “adequately developed such that no rational jury (or jurist) could find for



                                           4
[Dorrough].” Castro, 712 F.3d at 1314 (internal quotation marks and citation

omitted).

      AFFIRMED.




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