Carlos Castro v. Cal Terhune

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CARLOS CASTRO , No. 11-16837
Plaintiff-Appellant,
D.C. No.
v. 3:98-cv-04877-
WHA
CAL TERHUNE; G. BONNIE GARIBAY ;
J. BATCHELOR; S. C. WOLHWEND ;
ROBERT L. AYERS, JR., Warden; A. OPINION
SCRIBNER; J. STOKES; E. DERUSHA ,
Correctional Officer; MICHAEL G.
YARBOROUGH , Warden; L. HOOD ; C.
CAMPBELL; A. M. GONZALES; M.
AYALA ; J. MARTINEZ; A. JORDAN ,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding

Argued and Submitted
February 13, 2013—San Francisco, California

Filed April 5, 2013

Before: Jerome Farris, Sidney R. Thomas, and
N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith
2 CASTRO V . TERHUNE

SUMMARY*

Prisoner Civil Rights

The panel affirmed the district court’s order terminating
a prisoner civil rights action which challenged the prisoner’s
validation as an associate of the Mexican Mafia prison gang.

The panel rejected the prisoner’s “void-for-vagueness”
challenge to Cal. Code Regs. tit. 15, § 3378 (c), an
administrative regulation that guides prison officials in
validating inmates as gang affiliates. The panel held that
section 3378(c) clearly indicated that the prisoner’s conduct
in this case could result in validation. Further, the panel held
that although the district court should have evaluated whether
the prisoner was validated based on “some evidence,” remand
was not required to correct the error. The panel determined
that the evidence in the record showed that prison officials
relied on “some evidence” to validate the prisoner as an
associate of the Mexican Mafia gang and that the validation
procedure satisfied the requirements of the district court’s
prior Remedial Order.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CASTRO V . TERHUNE 3

COUNSEL

James E. Burns, Jr., James E. Thompson (briefed and
argued), and Jennifer N. Nejad (argued), Orrick Herrington &
Sutcliffe LLP, San Francisco, California, for Plaintiff-
Appellant.

Kamala D. Harris, Attorney General, Jonathan L. Wolff,
Senior Assistant Attorney General, Thomas S. Patterson,
Supervising Deputy Attorney General, Brendan M. Kenny,
Deputy Attorney General (briefed), and Jose Zelidon-Zepeda,
Deputy Attorney General (argued), San Francisco, California,
for Defendants-Appellees.

OPINION

N.R. SMITH, Circuit Judge:

Under the “void-for-vagueness” doctrine, due process
requires enactments to be written with “sufficient definiteness
that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.” Kolender v. Lawson,
461 U.S. 352, 357 (1983). Cal. Code Regs. tit. 15,
§ 3378(c)(4), an administrative regulation that guides prison
officials in validating inmates as gang affiliates, satisfies both
requirements. Due process also requires such validations to
be supported by “some evidence.” Superintendent v. Hill,
472 U.S. 445, 455 (1985); Bruce v. Ylst, 351 F.3d 1283, 1287
(9th Cir. 2003). Here, the district court erred, because it did
not evaluate whether “some evidence” supported Castro’s
validation as a prison gang “associate.” Nevertheless, we
4 CASTRO V . TERHUNE

affirm, because the record contains “some evidence” that
Castro is an “associate” of the Mexican Mafia prison gang.

FACTS & PROCEDURAL HISTORY

I. California’s Regulatory Framework

California’s prison regulations require an inmate to be
placed in administrative segregation whenever he or she
“presents an immediate threat to the safety of the inmate or
others.” Cal. Code Regs. tit. 15, § 3335(a) (2013). An
inmate who affiliates with a prison gang presents such a
threat. Madrid v. Gomez, 889 F. Supp. 1146, 1241 (N.D. Cal.
1995). California’s prison regulations recognize two degrees
of gang affiliation: (1) “member,” and (2) “associate.” Cal.
Code Regs. tit. 15, § 3378(c)(3)–(4). “[O]nce [prison
officials] determine[] that an inmate is a member or associate
of a prison gang, the inmate is routinely transferred to
administrative segregation in the [Security Housing Unit
(SHU)].” Madrid, 889 F. Supp. at 1241. Prison officials
follow a multi-step administrative process, known as
“validation,” to classify an inmate as a gang “member” or
“associate.” See id. at 1241–43.

Here, Castro brings only a facial challenge to the
definition prison officials use to validate inmates as gang
associates. “An associate is an inmate/parolee or any person
who is involved periodically or regularly with members or
associates of a gang.” Cal. Code Regs. tit. 15, § 3378(c)(4).
Prison officials must show such involvement by “three (3)
independent source items of documentation indicative of
association with validated gang members or associates.” Id.
Of those source items, one must be a “direct link to a current
or former validated member or associate of the gang.” Id.
 CASTRO V . TERHUNE 5

II. Castro’s Validation

On April 24, 1997, prison officials validated Castro as an
“associate” of the Mexican Mafia, a recognized prison gang.
Officials then transferred him to the SHU at Pelican Bay State
Prison. In 1998, he filed suit in the United States District
Court for the Northern District of California, challenging his
validation on due process grounds.

The district court granted defendants’ motion for
summary judgment. On appeal, we reversed and remanded.
Castro v. Terhune, 29 F. App’x 463, 466 (9th Cir. 2002). We
opined that due process required prison officials to give
Castro an opportunity to present his views to the “critical
decisionmaker.” Id. at 465. Accordingly, we remanded so
the district court could determine (1) what prison official was
the critical decisionmaker, and (2) whether Castro had an
opportunity to present his views to that official. Id.

On remand, the district court entered summary judgment
for the defendants on both issues. It concluded that
Institutional Gang Investigator (“IGI”) Michael Ayala was
the critical decisionmaker, and that Castro had an opportunity
to present his views to IGI Ayala. Castro then appealed the
district court’s summary judgment decision. We again
reversed and remanded, finding that genuine issues of fact
precluded summary judgment. Castro v. Terhune, 237 F.
App’x 153 (9th Cir. 2007).

On remand, the district court held a bench trial. It
concluded that (1) IGI Gonzalez was the “critical
decisionmaker,” and that (2) there was no evidence in the
record that Castro had an opportunity to present his views
before any member of the IGI’s office during his 1997
6 CASTRO V . TERHUNE

validation. Accordingly, the district court found that Castro
did not receive due process in his initial validation procedure.
Based on that finding, the district court granted Castro
prospective relief in a Remedial Order, pursuant to the
Prisoner Litigation Reform Act, 18 U.S.C. § 3626.

The Remedial Order required California prison officials
to determine “whether [Castro] is a gang associate now, not
in 1997 or 2009 (or any other time)” based on a new
validation procedure. Pursuant to the Order, California prison
officials conducted a new procedure between December 17,
2010 and April 19, 2011. David Barneburg (an IGI at Pelican
Bay State Prison) began the process by “review[ing] Castro’s
central file to determine whether it contained items showing
gang activity.” His review revealed several items indicating
gang affiliation. Barneburg then searched Castro’s cell, but
did not discover any new evidence of gang activity there. He
also photographed Castro. After concluding this review,
Barneburg sent Castro a description of the evidence that
could support Castro’s validation as an associate.

Barneburg then conducted Castro’s “validation interview”
on January 24, 2011. At the interview, Barneburg went over
the evidence of Castro’s gang involvement he had collected.
Castro’s attorney also made a presentation to Barneburg and
submitted a binder containing “sixty-six pages of argument
and 392 pages of exhibits,” challenging the reliability of the
evidence Barneburg produced. The interview lasted nearly
three hours.

After the interview, Barneburg reviewed the evidence, his
own notes, and Castro’s written submissions. He then
prepared a thirteen-page document, recommending that
Castro be validated as an associate of the Mexican Mafia
 CASTRO V . TERHUNE 7

prison gang. In that document, Barneburg cited the following
items as evidence showing Castro had been involved with the
Mexican Mafia: (1) a drawing, previously found in Castro’s
cell, which depicted the “Shield of the Eternal Warrior” (an
image commonly identified with the Mexican Mafia); (2)
testimony of an inmate contained in a debriefing report,
identifying Castro as the gang member who supervised the
inmate’s portion of the prison; (3) a hand-drawn birthday card
for a validated Mexican Mafia associate, which Castro had
signed; (4) two drawings containing the “Mactlactlomei”
symbol, which is distinctively identified with the Mexican
Mafia gang; and (5) a statement in a second debriefing report,
implicating Castro in a gang-related plot to stab an inmate.1
Barneburg also rejected three source items, because they were
unreliable.

Barneburg then submitted the foregoing information in
Castro’s “gang-validation package,” along with his
recommendation to validate, to the Office of Correctional
Safety (OCS). The OCS ultimately determines whether to
validate an inmate as a prison-gang affiliate. Cf. Madrid,
889 F. Supp. at 1275–76. Thus, on April 19, 2011, the OCS
validated Castro as a “prison-gang associate” for a second
time, based on the package Barneburg submitted.

Following Castro’s re-validation, defendants filed a
motion in district court to terminate the case. After reviewing
the validation procedure that defendants had followed, the
district court concluded that the process satisfied the

1
Both the statement by the first confidential informant and the birthday
card provided a necessary “direct link to a current or former validated
member . . . of the gang,” in satisfaction of title 15, section 3378(c)(4) of
the California Code of Regulations.
8 CASTRO V . TERHUNE

requirements of the Remedial Order, and terminated the
action in an Order Terminating Action (Termination Order).
Castro then filed the instant appeal from the Termination
Order.

DISCUSSION

On appeal, Castro asks us to vacate the Termination Order
on three grounds. First, he argues that his 2011 validation
procedure did not comport with due process, because the
definition of “associate” in the prison regulations used to
validate him is “unconstitutionally vague.” Second, he claims
that he did not receive due process, because the district court
did not evaluate whether the evidence used to validate him
met the “some evidence” standard. Third, he argues that the
district court failed to determine that he is a prison gang
associate “now.” We affirm.

I. Section 3378(c)(4) is not unconstitutionally vague.

Castro argues that the definition of “associate” in Cal.
Code Regs. tit. 15, § 3378(c)(4) is unconstitutionally vague.2
We analyze a challenge to the constitutionality of a regulation
de novo. See Landsdale v. Hi-Health Supermart Corp.,
314 F.3d 355, 357 (9th Cir. 2002). Assuming inmates can

2
Defendants argue that Castro waived his vagueness challenge, because
he did not raise it in his complaint. However, a party only waives an issue
by failing to raise it “below.” Int’l Union of Bricklayers v. Martin Jaska,
Inc., 752 F.2d 1401, 1404 (9th Cir. 1985). A party could raise an issue
below, even if he does not raise it in his complaint. See Beets v. Cnty. of
L.A., 669 F.3d 1038, 1043 (9th Cir. 2012) (implying that argument could
be raised “below” if raised in motion to dismiss). Since Castro argued
vagueness in his motion opposing termination of prospective relief, he has
not waived it.
 CASTRO V . TERHUNE 9

challenge prison administrative regulations on vagueness
grounds, section 3378(c)(4) satisfies the requirements of due
process.

Castro does not cite to any cases that have found prison
administrative regulations to be unconstitutional under the
void-for-vagueness doctrine. Instead, he cites to cases
applying the doctrine to criminal and penal statutes.
Kolender, 461 U.S. at 357; Connally v. Gen. Const. Co.,
269 U.S. 385, 391 (1926). Nevertheless, we will assume that
the void-for-vagueness doctrine applies to prison
administrative regulations. Cf. Bahrampour v. Lampert,
356 F.3d 969, 975 (9th Cir. 2004) (applying Turner v. Safley,
482 U.S. 78 (1987) to vagueness challenge to prison
regulation prohibiting receipt of certain types of mail). In
doing so, we are mindful that “[t]he degree of vagueness that
the Constitution tolerates . . . depends in part on the nature of
the enactment.” Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). Unlike both
penal statutes and prison disciplinary regulations,3 this prison
administrative regulation does not impose sanctions for, or
necessarily prohibit, any conduct. Rather, it serves as a guide
to channel the discretion of prison officials who must decide
how to best allocate inmates among prison housing units. See
Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997)
(noting that prison housing decisions are “essentially a matter
of administrative discretion” and that “California’s policy of
assigning suspected gang affiliates to the SHU is not a
disciplinary measure, but an administrative strategy designed

3
Some courts have applied vagueness analysis to prison disciplinary
regulations. See Newell v. Sauser, 79 F.3d 115, 117–18 (9th Cir. 1996)
(citing cases).
10 CASTRO V . TERHUNE

to preserve order in the prison and protect the safety of all
inmates”).

Though Castro’s challenge is unclear, he appears to argue
that section 3378(c)(4) is invalid on its face, rather than only
as-applied to him. “Outside the First Amendment context, a
plaintiff alleging facial vagueness must show that the
enactment is impermissibly vague in all its applications.”
Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d
1133, 1146 (9th Cir. 2009) (internal quotation marks
omitted). Here, Castro specifically disclaims any argument
that section 3378(c)(4) affects his First Amendment right to
associate with other inmates; rather, he alleges that its
vagueness infringes on his “right to be free from solitary
confinement.” Thus, to succeed on his vagueness claim,
Castro must show that section 3378(c)(4) would be
impermissibly vague in all its applications.

To survive a vagueness challenge, section 3378(c)(4)
must define “associate” (1) with sufficient definiteness that
“ordinary people can understand what conduct [can be used
as evidence of association],” and (2) “in a manner that does
not encourage arbitrary and discriminatory [validation].”
Kolender, 461 U.S. at 357; Hoffman Estates, 455 U.S. at 498.
Because Castro must show that section 3378(c)(4) is invalid
in all its applications, he must first show that the regulation
fails both prongs in the context of his own validation. See
Hoffman Estates, 455 U.S. at 495 (“A plaintiff who engages
in some conduct that is clearly proscribed cannot complain of
the vagueness of the law as applied to the conduct of others.
A court should therefore examine the complainant’s conduct
before analyzing other hypothetical applications of the law.”
(footnote omitted)). Castro cannot make this showing; he
engaged in conduct that section 3378(c)(4) clearly indicates
 CASTRO V . TERHUNE 11

could be used as evidence of gang involvement, and he has
not shown that prison officials engaged in arbitrary and
discriminatory conduct when validating him.

A. Definiteness

Under the first factor, section 3378(c)(4) and its
accompanying regulations would have clearly indicated to
Castro that his conduct could be used as evidence in support
of validation. Section 3378(c)(4) defines “associate” as “an
inmate/parolee or any person who is involved periodically or
regularly with members or associates of a gang.” Cal. Code
Regs. tit. 15, § 3378(c)(4). To show such involvement,
prison officials must rely on “at least three (3) independent
source items of documentation indicative of association with
validated gang members or associates.” Id. Section
3378(c)(8) specifies what types of evidence may be used as
these source items. These include tattoos and symbols,
written material, photographs, and “information related to the
[inmate’s] association with validated gang affiliates”
including “addresses, names, identities, and reasons why such
information is indicative of association with a prison gang.”
Id. § 3378(c)(8)(B), (C), (D), (G). If a source item does not
categorically evidence gang affiliation or activity, prison
officials may only rely on it if they can articulate how that
item provides such evidence. See generally id. § 3378(c)(8).

Here, prison officials relied on several source items to
validate Castro as an “associate.” First, Castro possessed
drawings and artwork that contained symbols and imagery
commonly identified with the Mexican Mafia gang. Second,
Castro signed a birthday card for a validated associate of the
Mexican Mafia. The other prisoners who signed the card
were also either validated Mexican Mafia associates, or
12 CASTRO V . TERHUNE

suspected associates of the gang. Third, a confidential
informant testified that Castro had been the member of the
Mexican Mafia in charge of supervising the prison block
where he was housed. Fourth, another confidential informant
testified that Castro had been involved in a gang-related plot
to kill an inmate. Each of these source items indicates
Castro’s involvement with the Mexican Mafia. As section
3378(c)(8) authorizes prison officials to validate inmates
based on this type of evidence, the regulation clearly advised
Castro that his conduct could result in validation.
Accordingly, Castro’s facial vagueness challenge must fail.

Castro specifically attacks the terms “involved,”
“periodically,” and “regularly” in section 3378(c)(4)’s
definition of associate. However, even if these terms
“contain germs of uncertainty,” Broadrick v. Oklahoma,
413 U.S. 601, 608 (1973), they do not make the regulation
vague. None of these terms are defined in the statute, so we
will give them their “ordinary or natural meaning.” FDIC v.
Meyer, 510 U.S. 471, 476 (1994) (“In the absence of [a
definition in the statute], we construe a statutory term in
accordance with its ordinary or natural meaning.”). We can
determine this meaning by looking to “general usage
dictionaries.” Hinds Investments, L.P. v. Angioli, 654 F.3d
846, 850 (9th Cir. 2011).

To become “involved” is to “relate closely.” Webster’s
Third New International Dictionary 1191 (1993).
“Periodically” means “at regular intervals of time” or “from
time to time.” Id. at 1680. “Regularly” means in a way that
is “steady or uniform in course, practice or occurrence.” See
id. at 1913. At a minimum, the source items used to validate
Castro show that he related closely with the Mexican Mafia
prison gang on more than one occasion by (1) participating in
 CASTRO V . TERHUNE 13

a gang-related violent plot, (2) serving as a gang-
commissioned supervisor, and (3) collaborating with
validated gang associates to send a birthday card to another
validated gang associate. Because the terms Castro
challenges plainly describe his involvement with the Mexican
Mafia, his argument that they make the regulation vague fails.
Hoffman Estates, 455 U.S. at 495 (“A plaintiff who engages
in some conduct that is clearly proscribed cannot complain of
the vagueness of the law as applied to the conduct of
others.”).

Castro argues that we should find section 3378(c)(4) to be
vague, because we held a similar definition to be vague in
United States v. Johnson, 626 F.3d 1085, 1091 (9th Cir.
2010). There, we invalidated a condition of the defendant’s
supervised release, which stated that “The defendant may not
associate with anyone known to him to be a Rollin’ 30’s gang
member or persons associated with the Rollin’ 30’s gang.”
Id. at 1090 (emphasis added). We concluded that the
prohibition on associating with persons who “associate[]
with” the gang was “impermissibly vague.” Id. at 1090–91.
That condition was so broad that it forbade the defendant
from associating with any person “associated with” the gang,
even if the nature of the association was not gang related.
Thus, the defendant could violate the condition of supervised
release merely by “associating” with someone who had “only
a social connection to an individual gang member.” Id. at
1091. We invalidated the term of supervised release due to
this condition’s breadth. Id.

Section 3378(c)(4) differs from the supervised release
condition at issue in Johnson in two important respects. First,
prison officials, without more, cannot validate inmates based
on a mere “social connection to an individual gang member.”
14 CASTRO V . TERHUNE

Cf. Johnson, 626 F.3d at 1091. Any connection must
evidence affiliation or association with a gang to be used as
a source item supporting validation. See Cal. Code Regs. tit.
15, § 3378(c)(8)(G).

Second, the Constitution provides greater protection for
the free association rights of a defendant on supervised
release than it does for the free association rights of a prison
inmate. In the supervised release context, “[a] restriction on
a defendant’s right to free association” must “involve[] no
greater deprivation of liberty than is reasonably necessary” to
achieve “the goals of deterrence, protection of the public,
and/or defendant rehabilitation.” United States v. Soltero,
510 F.3d 858, 866 (9th Cir. 2007). Prison regulations
affecting the right to free association (which arguably
includes section 3378(c)(4)) need not meet a “least restrictive
means” test. Rather, prison regulations generally only need
to be “rational[ly] relat[ed] to legitimate penological
interests.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003); see
also Turner, 482 U.S. at 90 (rejecting proposition that prison
regulations are subject to “least restrictive alternative” test).
This distinction is consistent with the principle that “freedom
of association is among the rights least compatible with
incarceration.” Overton, 539 U.S. at 131. Accordingly, even
if section 3378(c)(4) did put an inmate’s social connections
at risk to the same degree as the condition of supervised
release invalidated in Johnson, we would not reach the same
result here.

In sum, section 3378(c)(4) and its associated regulations
are sufficiently definite to notify Castro that his conduct
could be used as evidence of his gang involvement,
supporting his validation as an associate. Therefore, it
survives the first element of vagueness analysis.
 CASTRO V . TERHUNE 15

B. Arbitrary & Discriminatory Enforcement

Under the second factor, Castro has not produced any
evidence that prison officials applied section 3378(c)(4) in an
arbitrary or discriminatory way when they validated him. By
relying on five source items to validate Castro, prison
officials had more evidence supporting Castro’s validation
than state regulations require. Cal. Code Regs. tit. 15,
§ 3378(c)(4) (requiring “three (3) independent source items
of documentation indicative of association with validated
gang members or associates”). Each source item fit within a
category of evidence that the regulations authorize prison
officials to use. See generally Cal. Code Regs. tit. 15,
§ 3378(c)(8)(A)–(M). Prison officials followed the
procedures required by regulation and the district court’s
Remedial Order. In short, there is no evidence that section
3378(c)(4) was applied to Castro in an arbitrary or
discriminatory manner.

Castro cites to the deposition testimony of several prison
officials as evidence that section 3378(c)(4) presents a risk of
arbitrary and discriminatory enforcement. This testimony
relates primarily to each deponent’s own, personal conclusion
about the characteristics of an inmate who might qualify as a
prison gang associate in the abstract. Accordingly, this
testimony is irrelevant here, because it does not show how
prison officials applied the definition of associate to Castro.
Barneburg recommended Castro’s validation based on section
3378(c)(4)’s definition of associate—not on the personal
definition recited by any prison official in deposition
testimony.
16 CASTRO V . TERHUNE

In sum, section 3378(c)(4) is not vague in violation of the
Due Process Clause. An ordinary inmate would know that
Castro’s conduct could have been used as evidence to
validate him as an associate of the Mexican Mafia. There is
no indication that prison officials were arbitrary or
discriminatory when validating Castro. Accordingly, we
reject Castro’s vagueness challenge.

II. “Some evidence” supports Castro’s validation as an
associate of the Mexican Mafia.

Next, we address whether the district court should have
determined whether there was “some evidence” to support
Castro’s validation as a prison gang associate. This is a
question of law. Accordingly, we review the district court’s
decision not to engage in a “some evidence” inquiry de novo.
See Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1014
(9th Cir. 2008). Although we conclude that the district court
should have engaged in a “some evidence” inquiry, remand
is unnecessary. The evidence in the record clearly satisfies
the low “some evidence” standard.

Due process guarantees Castro that the evidence used to
validate him meet the “some evidence” evidentiary standard.
See Bruce, 351 F.3d at 1287.4 The district court did not

4
The parties disagree over whether, under Swarthout v. Cooke, due
process requires that the evidence of Castro’s prison gang association be
tested by the “some evidence” standard. 131 S. Ct. 859 (2011). In
Swarthout, the Supreme Court rejected the argument that the due process
clause required there to be “some evidence” to deny an inmate parole.
131 S. Ct. at 861–63. However, Swarthout involved a “some evidence”
standard imposed in parole revocation proceedings by California state law,
rather than the “some evidence” standard that federal due process law
imposes on Castro’s validation procedure. Compare id. at 862 with
 CASTRO V . TERHUNE 17

evaluate whether the evidence used to validate Castro in 2011
met this standard, because it believed that the Remedial Order
only granted Castro a procedural remedy, and that the “some
evidence” analysis was a substantive requirement. However,
the “some evidence” requirement is an “evidentiary
standard.” Hill, 472 U.S. at 456. As such, procedural, not
substantive, due process guarantees inmates that their
validation will be based on some evidence. See Santosky v.
Kramer, 455 U.S. 745, 757 (1982) (discussing standards of
proof as procedural due process rules). Thus, the district
court erred when it did not evaluate whether there was “some
evidence” that Castro is a prison gang associate.

The district court is best positioned to consider, in the first
instance, whether “some evidence” supported Castro’s
validation. Under the unique circumstances of this case,
however, the record is adequately developed such that “no
rational jury” (or jurist) could find for Castro. See Dennis v.
BEH-1, LLC, 504 F.3d 892, 896 (9th Cir. 2007), amended
and superseded on other grounds by 520 F.3d 1066 (9th Cir.
2008). Accordingly, it would be “pointless” for us to vacate
and remand for that determination. Id.

“Some evidence” review requires us to ask only “whether
there is any evidence in the record that could support the
conclusion.” Bruce, 351 F.3d at 1287 (emphasis added).
This test is “minimally stringent.” Powell v. Gomez, 33 F.3d

Toussaint v. McCarthy, 801 F.2d 1080, 1104 (9th Cir. 2001). Indeed,
Justice Ginsburg— concurring in Swarthout— highlighted the distinction
between these two standards. Id. at 863 (Ginsburg, J., concurring).
18 CASTRO V . TERHUNE

39, 40 (9th Cir. 1994). Accordingly, “we do not examine the
entire record, independently assess witness credibility, or
reweigh the evidence.” Bruce, 351 F.3d at 1287. Evidence
only must bear “some indicia of reliability” to be considered
“some evidence.” Toussaint v. McCarthy, 926 F.2d 800, 803
(9th Cir. 1990). Moreover, evidence may qualify as “some
evidence,” even if it does not “logically preclude[] any
conclusion but the one reached.” Hill, 472 U.S. at 457.

In Bruce, we addressed the issue of whether “some
evidence” supported the validation of an inmate as a gang
member. 351 F.3d at 1287. The inmate had been validated
based on (1) police reports that he was a gang affiliate, (2) a
probation report noting that his co-defendant was validated as
a member of the same gang, and (3) the statement of a
confidential prison informant. Id. at 1287–88. Indicating the
low hurdle that the “some evidence” standard sets, we held
that “any of these three pieces of evidence would have
sufficed to support the validation because each has sufficient
indicia of reliability.” Id. at 1288. Accordingly, we held that
there was “some evidence” to support the inmate’s validation.

Here, OCS officials validated Castro based on five pieces
of evidence: (1) a hand-drawn picture that contained a gang-
related symbol, found in Castro’s prison cell; (2) a
photocopied image that contained a gang-related symbol, also
discovered in Castro’s cell; (3) a birthday card for another
inmate who was a validated member of the same gang, which
Castro had signed; and (4) two de-briefing reports, in which
other inmates testified that Castro was involved in gang-
 CASTRO V . TERHUNE 19

related activities. The two pictures containing gang-related
symbols meet the some evidence standard. Possessing
pictures containing gang-related symbols indicates that the
possessor is involved with the gang. The birthday card is also
some evidence of gang involvement. Each inmate who
signed it was a validated associate (or suspected associate) of
the Mexican Mafia. Other inmates who resided in the same
cell area, but were not part of the Mexican Mafia, did not sign
the card even though they could have. Finally, Castro and the
other inmates sent the card to a validated gang associate.
These characteristics make the card some evidence of
Castro’s involvement with the Mexican Mafia. Because we
are only reviewing the record for “some evidence” to support
Castro’s validation, the possibility that these items could
support competing inferences does not affect our conclusion.
Hill, 472 U.S. at 457.

The debriefing reports are also some evidence of Castro’s
gang affiliation. The inmates being debriefed testified from
personal knowledge regarding Castro’s involvement in gang-
related activities.

The foregoing review demonstrates that prison officials
had “some evidence” that Castro was periodically involved
with the Mexican Mafia. Accordingly, although we agree
with Castro that the district court should have conducted this
analysis in the first instance, we see no reason to remand so
that the district court can address it now. Dennis, 504 F.3d at
896.
20 CASTRO V . TERHUNE

III. Castro’s 2011 validation procedure satisfied the
Remedial’s Order’s requirement that Castro be
determined to be a prison gang associate “now.”

Finally, Castro argues that his 2011 validation process did
not satisfy the terms of the Remedial Order, because the
evidence used to validate him was too old to prove he was a
gang associate “now.” Castro misreads the Remedial Order.
While the Order instructed prison officials to determine
whether Castro was a gang associate “now,” it specifically
noted that earlier evidence is not “inadmissible in the new
validation process.” Further, the Order required that the
remedial validation “follow state and CDCR regulations.”
Those regulations do not specify the maximum age of a
source item, except in a few instances that are not relevant
here. E.g., Cal. Code Regs. tit. 15, § 3378(c)(8)(D) (photos
cannot be more than six years old); cf. id. § 3378(e) (implying
that source items up to six years old are relevant indicators of
gang affiliation, because a validated inmate may be re-
classified as “inactive” if he does not engage in any gang
activity for six). The age of the source items could affect the
weight of the evidence. But, at this stage, we may not re-
weigh the evidence. Bruce, 351 F.3d at 1287. Moreover,
Castro has not produced any affirmative evidence that he is
no longer involved with the Mexican Mafia. Accordingly, we
reject his claim that his 2011 validation did not satisfy the
requirements of the Remedial Order.

CONCLUSION

Castro’s vagueness challenge fails, because section
3378(c) clearly indicated to him that his conduct could result
in validation. Further, although the district court should have
evaluated whether Castro was validated based on “some
 CASTRO V . TERHUNE 21

evidence,” remand is not required to correct the error. The
evidence in the record shows that prison officials relied on
“some evidence” to validate Castro as an associate of the
Mexican Mafia gang.

AFFIRMED.5

5
Castro’s motion to supplement the record on appeal is DENIED. The
declaration he offers was not part of the district court record and,
therefore, is not properly part of the record on appeal. Kirshner v. Uniden
Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988). Accordingly,
Defendants’ motion to strike the declaration, and the portions of Castro’s
supplemental brief that rely on the declaration, is GRANTED.
Barcamerica Int’l USA Trust v. Tyfield Importers, Inc., 289 F.3d 589,
593–95 (9th Cir. 2002).