
    Eddie FRIAS, Plaintiff-Appellant, v. G. MARSHALL, Defendant-Appellee.
    No. 12-17107.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 16, 2014.
    Filed June 23, 2014.
    John Scott Cramer, Esquire, Carlsbad, CA, for Plaintiff-Appellant.
    David E. Brice, Misha Igra, Esquire, Supervising Deputy Attorney General Sacramento, CA, for Defendant-Appellee.
    Before: McKEOWN and M. SMITH, Circuit Judges, and SELNA, District Judge.
    
    
      
       The Honorable James V. Selna, District Judge for the U.S. District Court for the Central District of California, sitting by designation.
    
   MEMORANDUM

Eddie Frias, a California inmate, brought suit against a prison official, Gerald Marshall, under 42 U.S.C. § 1983, challenging the reliability of the evidence used by Marshall to recommend that Frias be validated as a member of the “Mexican Mafia” prison gang. As a result of this validation, Frias was transferred to the Secure Housing Unit (“SHU”). After the evidence was presented to the jury and before jury deliberations, the district court entered judgment as a matter of law for Marshall. Frias brought this appeal, contending that the case should have been sent to the jury because there were material contested facts.

Assuming that the “some evidence” inquiry, see Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir.2003), was part of the procedural due process claim that Frias preserved for trial, the fact that neither the district judge nor the jury considered whether there was “some evidence,” bearing “indicia of reliability,” to establish that Frias was an associate of a prison gang was error under Castro v. Terhune, 712 F.3d 1304, 1314 (9th Cir.2013). But here, as in Castro, remand would be “pointless,” because there was “some evidence” in the record to support the determination that Frias was an associate of the gang. Id. (internal quotation omitted). For the same reason, we affirm the district court’s holding that Marshall was entitled to qualified immunity.

To the extent that the 24-hours’ notice issue was preserved for trial and not resolved in the pretrial summary judgment order, Frias failed at trial to contest Marshall’s sworn testimony that Frias waived the right to notice, and on appeal, points to no testimony sufficient to demonstrate that there was a genuine issue of material fact on this question requiring submission to the jury.

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     