                                                                             FILED
                            NOT FOR PUBLICATION                               NOV 19 2009

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



EDWARD HERNANDEZ,                                 No. 08-15493

             Plaintiff - Appellant,               D.C. No. 05-CV-02853-DGC

  v.
                                                  MEMORANDUM *
DORA SCHRIRO; et al.,

             Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                    David G. Campbell, District Judge, Presiding

                     Argued and Submitted November 5, 2009
                            San Francisco, California

Before: GOODWIN and W. FLETCHER, Circuit Judges, and MILLS,** District
Judge.

       Plaintiff Edward Hernandez appeals a summary judgment for Defendant

administrators of the Arizona Department of Corrections (“ADC”), Dora Schriro,




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
                The Honorable Richard Mills, District Judge for the Central District of
Illinois, sitting by designation.
Carson McWilliams, and Dorinda Cordova. We have jurisdiction under 28 U.S.C.

§ 1291. We reverse and remand.

      Plaintiff was placed in Special Management Unit II ("SMU II") maximum

security isolation based solely on his membership in Warrior Society, a designated

security threat group, on May 18, 2004. (2 Excerpts of Record 93). The ADC

reviews Plaintiff’s retention in SMU II only annually, though Plaintiff may be able

to initiate a debriefing or step down program at any time. (Id. at 92, 161). Plaintiff

argues that Defendants violated his due process rights in placing and retaining him

in SMU II.

      Due process requires (1) upon initial placement in segregation, the inmate

receives notice of the factual basis for the segregation and an opportunity to be

heard; (2) some evidence to support the decision; and (3) periodic review of the

inmate's confinement status. Wilkinson v. Austin, 545 U.S. 209, 225–26 (2005);

Superintendent v. Hill, 472 U.S. 445, 455 (1985); Hewitt v. Helms, 459 U.S. 460,

477 n.9 (1983) (abrogated in part on other grounds by Sandin v. Conner, 515 U.S.

472, 483 (1995)).

      Plaintiff does not argue that the first requirement is not satisfied. Indeed, the

record shows that he received notice and an opportunity to be heard upon

placement into segregation. (2 Excerpts of Record 93). However, Plaintiff argues

that the second requirement is not satisfied because the ADC relied only on some
evidence of Plaintiff’s membership in a security threat group, rather than on some

evidence of specific misconduct attributable to him. Plaintiff is incorrect. See

Bruce v. Ylst, 351 F.3d 1283, 1286–88 (9th Cir. 2003). Because the record shows

some evidence of Plaintiff’s membership in Warrior Society, including Plaintiff’s

admission, the second requirement is satisfied. (2 Excerpts of Record 93).

      Plaintiff argues that the third requirement is not satisfied because annual

reviews plus the ability to initiate a debriefing or step down program is

insufficient. This Court has indicated that annual reviews are insufficient.

Toussaint v. McCarthy, 801 F.2d 1080, 1101 (9th Cir. 1986) (abrogated in part on

other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Whether the debriefing

or step down programs are available and adequate alternatives to more frequent

review raises legal and factual questions that cannot be answered on the record as

developed thus far. Plaintiff alleges that he cannot safely participate in those

programs because he will be labeled a “prison snitch.” (2 Excerpts of Record 174).

Such a label could raise safety concerns that implicate the Eighth Amendment. See

Farmer v. Brennan, 511 U.S. 825, 832 (1994). Accordingly, the case is remanded

for further factual development.

      Plaintiff also appeals the grant of summary judgment on claims related to the

conditions of his confinement in SMU II. Specifically, Plaintiff argues that his

Eighth Amendment rights are violated by his limited exercise opportunities and his
cell’s lighting, and that his RLUIPA rights are violated because he is prohibited

from pipe and sweat lodge ceremonies. We need not reach these issues at this time

because they become moot if Plaintiff is not properly retained in

SMU II.

      REVERSED AND REMANDED.
