Robert Griffin v. James Gomez, et al

Filing

FILED OPINION (ANDREW J. KLEINFELD, MARSHA S. BERZON and WILLIAM E. SMITH) VACATED; REVERSED AND REMANDED. Judge: AJK Authoring, Judge: MSB Dissenting, FILED AND ENTERED JUDGMENT. [8954574] [09-16744, 11-15373]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT LEE GRIFFIN,
Plaintiff-Appellee,
v.

No. 09-16744
D.C. No.
5:98-cv-21038JW

JAMES GOMEZ, Director of
California Department of
Corrections; CHARLES D.
MARSHALL; C. A. TERHUNE,
Director; ROBERT L. AYERS, JR.,
Warden,
Defendants-Appellants.

ROBERT LEE GRIFFIN,
Petitioner-Appellee,
v.
JAMES GOMEZ, Director of
California Department of
Corrections; C. A. TERHUNE,
Director; CHARLES D. MARSHALL;
ROBERT AYERS, JR., Warden,
Respondents-Appellants.

No. 11-15373
D.C. No.
5:98-cv-21038JW

OPINION

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GRIFFIN V. GOMEZ
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
November 9, 2012—San Francisco, California
Filed January 28, 2014

Before: Andrew J. Kleinfeld and Marsha S. Berzon, Circuit
Judges, and William E. Smith, District Judge.*
Opinion by Judge Kleinfeld;
Dissent by Judge Berzon

*

The Honorable William E. Smith, District Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.

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SUMMARY**

Habeas Corpus
The panel vacated and reversed, for abuse of discretion,
the district court’s 2009 and 2011 orders enforcing its initial
2006 order releasing petitioner from the Security Housing
Unit.
Petitioner was validated as an Aryan Brotherhood
member in 1979 and put into the SHU at a prison in the
California prison system. He claimed that he was no longer
an active gang member and in 2006, the district court ordered
him released from the SHU. At the time, petitioner was not
in the SHU because he had been released into federal
confinement as a defendant in a federal RICO case. When he
was returned to state custody, he was placed in the
Administrative Segregation Unit pending an investigation of
his gang status. Based on his conviction in the RICO case,
which in turn was based on allegations of gang activity during
a period when petitioner claimed he was no longer a gang
member, prison officials concluded that petitioner was still an
active member and again housed him in the SHU. During
this time, the district court issued orders in 2009 and 2011
enforcing its 2006 order to release petitioner from the SHU.
Assuming the validity of the unchallenged 2006 order, the
panel held that the district court abused its discretion in
issuing the 2009 and 2011 orders, because prison officials did
not violate the 2006 order, the order did not amount to a
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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continuing injunction, and the order did not say that petitioner
could not subsequently earn his way back to the SHU. The
panel further explained that the challenged orders must be
vacated for an independent and alternative reason: the district
court failed to take proper account of a line of Supreme Court
authority limiting federal district court management of state
prisons.
Judge Berzon dissented because the only consideration
that matters at this juncture is that California has never
complied with the original release order, as construed by the
court that issued it. She would affirm the 2009 and 2011
orders because the district court reasonably construed its 2006
order, which the state violated instead of seeking appellate
review. She expressed no opinion on whether, having
complied with the 2006 order, California could then
revalidate petitioner as a gang member and send him back to
segregated housing.

COUNSEL
Pamela B. Hooley, Deputy Attorney General, Sacramento,
California, for Respondents-Appellants.
Pamela J. Griffin, Omaha, Nebraska, for Petitioner-Appellee.

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OPINION
KLEINFELD, Senior Circuit Judge:
We address enforcement of an order regarding conditions
of confinement.
FACTS
Robert Lee Griffin has been imprisoned since 1970. He
was originally convicted of robbery and burglary. He
committed additional violent crimes while in prison,
including murder of another inmate, earning a life sentence.
During his confinement, he became a leader in a national
prison gang, the Aryan Brotherhood. Because of his gang
activities, he has been confined for many years to a “security
housing unit” (“SHU”), to protect other prisoners from him
and his gang underlings. This appeal addresses the security
housing unit aspect of his confinement, not the confinement
itself.
California has a chronic problem with murderous prison
gangs, typically organized by ethnicity. The gangs engage in
extortion, drug trafficking, assault, and murder within the
prisons. And, since many prisoners are eventually released,
and many have family and friends outside the prisons, the
gangs’ reach and ability to order assaults and murders extends
outside the prisons.
According to the declaration in this case of the Special
Agent in Charge of the California Office of Correctional
Safety, Griffin’s gang, the Aryan Brotherhood, or “AB,”
originated in San Quentin prison in the 1960s, and has spread
throughout the California state prison system and beyond, to

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other states’ prison systems and to the federal prison system.
Once a member of the Aryan Brotherhood, a person is always
a member, according to the Special Agent’s declaration:
The AB is a white supremacist group that
operates under the principle of ‘blood in/blood
out,’ meaning that in order to become an AB
member, the individual must murder someone
for the AB, and the only way to get out of the
AB is by dying naturally or being killed.
Thus membership is for life, as is typical with
virtually all prison gangs.
California created the “Office of Correctional Safety”
within its Department of Corrections and Rehabilitation to
address its prison gang problem. Officers within this unit
“validate” an inmate’s gang membership by accumulating
evidence, and by giving the inmate notice and an opportunity
to be heard on whether he is indeed a gang member. The
Office considers gang members to be “a severe threat to the
safety of others and to the security of the institution,” so once
“validated,” an inmate is placed in a SHU indefinitely.
A classification committee reviews a gang member’s
SHU status every six months to consider whether or not to
release him into the general population. Inmates can also
volunteer for “debriefing” to establish that they are
“dropouts” from their gangs and obtain release into the
general prison population. When an inmate wants to debrief,
prison officials interview him, and then house him with other
inmates who are debriefing and observe him for a period of
time to determine whether he has really left his gang.
Debriefing does not require an inmate to disclose crimes he
has committed. But he must name other gang members and

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discuss past activities of his gang. Over a thousand inmates
have been debriefed and released from SHUs in recent
decades. As an alternative to debriefing, the prison officials
also run an “inactive review” process, where they review the
files of inmates who have had no documented gang activity
for at least six years, and consider whether or not to release
them from the SHU. Over five hundred inmates have been
declared inactive and released from the SHU via this process.
Griffin has not been among those gang members released
into the general prison population. He was validated as an
Aryan Brotherhood member in 1979, and put into the SHU at
the California Correctional Institution at Tehachapi in 1987.
He was transferred to the SHU at Pelican Bay State Prison in
1989, and remained there until 2002.1 Prison officials
reconfirmed his Aryan Brotherhood membership in 1995 and
1996. In 1999 and 2000, prison officials received several
confidential memoranda suggesting that Griffin was still
authorizing assaults on behalf of the Aryan Brotherhood. In
2000, they intercepted a “kite” — a letter smuggled past
prison officials to another prisoner2 — that said that Griffin
had authorized an assault on another prisoner on behalf of the
Aryan Brotherhood.
The notion of “authorizing” an assault relates to the
somewhat bureaucratic organization of the Aryan

1

Griffin has apparently been housed intermittently in other prisons. The
Special Agent’s declaration states that he was housed in the West Valley
Detention Center in 1998 and in the California Institution for Men in
1999. Prison officials believe that he was involved in directing Aryan
Brotherhood activities while at both of these prisons.
2

See United States v. Keys, 67 F.3d 801, 805 (9th Cir. 1995).

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Brotherhood.
The California faction of the Aryan
Brotherhood is led by a Commission, which orders murders
and assaults to keep subordinate Aryan Brotherhood members
under control and advance the gang’s drug smuggling and
other interests. Griffin was a founding member of the
Commission. Various intercepted documents suggested to
prison officials that Griffin was still a member of the
Commission and was still giving instructions in 1999, but was
nevertheless “keeping a low profile because of his pending
[habeas] case.”
Griffin seeks release from the SHU in which he is
currently confined. He claims that he is no longer active in
the Aryan Brotherhood, but prison officials have not released
him through the inactive review process, and he has refused
to “debrief.” He has argued that debriefing would put him
and his family at risk of retaliation for revealing gang secrets.
He says that, having ceased all gang activity, he should not
have to take that risk in order to be released from the SHU.
The prison authorities do not believe that he is inactive or, as
they put it, has “retired” from the Aryan Brotherhood. They
claim that “retirement” would be inconsistent with the Aryan
Brotherhood’s “blood in/blood out” requirement. In addition
to their doubt that the Aryan Brotherhood allows retirement,
prison authorities have received numerous tips from other
prisoners that Griffin remains an active leader of the gang.
All this is background. Griffin’s arguments in this case
are legal, not factual, based on a complex tangle of past
litigation. We now summarize the history of this litigation.
In 1992, while incarcerated at the Pelican Bay SHU,
Griffin petitioned for a writ of habeas corpus. He sought
release from the SHU into the general prison population, not

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release from prison, so it was not clear that habeas corpus was
the appropriate means of seeking relief. The district court
denied the petition. On appeal, we held that Griffin could
indeed use the habeas process rather than § 1983, even
though he was addressing conditions of confinement rather
than the legitimacy or duration of his confinement.3 One of
Griffin’s arguments was that holding him in the SHU unless
he debriefed was cruel and unusual punishment violative of
the Eighth Amendment. We did not decide whether this was
so, but instead remanded for further consideration in light of
Madrid v. Gomez,4 a district court decision in a class action
challenge of which Griffin was a part.
Madrid addressed, among other issues, Eighth
Amendment claims by prisoners in the Pelican Bay SHU.
The court emphasized that the Pelican Bay SHU was unique,
“a place which, by design, imposes conditions far harsher
than those anywhere else in the California prison system.”5
It had unique architecture imposing extreme isolation, in
which the “worst of the worst” prisoners were confined.6 The
prisoners spent 22 ½ hours per day in windowless cells, and
their social interaction was sharply limited to their cellmate
(if they had one), to hearing but not seeing inmates in
adjoining cells, and to closely supervised library, shower, and

3

Griffin v. Gomez, No. 95–16684, 1998 WL 81336, at *1 (9th Cir. Feb.
24, 1998); Cf. Skinner v. Switzer, 131 S.Ct. 1289, 1299 n.13 (2011);
Wilkinson v. Dotson, 544 U.S. 74, 82 (2005).
4

Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).

5

Id. at 1155.

6

Id.

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visitor interactions.7 When they were allowed outdoors, they
were confined in small caged exercise pens surrounded by
high walls from which they could not see other prisoners.8
Despite these extreme conditions, the district court in
Madrid was “not persuaded that the [Pelican Bay] SHU, as
currently operated, violates Eighth Amendment standards”
except for mentally ill inmates and inmates at a “particularly
high risk for suffering very serious or severe injury to their
mental health” on account of the social isolation in the
Pelican Bay SHU.9 Griffin has never claimed to be in this
category of inmates with mental health deficits.
On remand in 2006, the district court addressed Griffin’s
habeas petition in light of the Madrid class action judgment.10
The district court held that for Griffin, in his particular
circumstances, confinement in the Pelican Bay SHU violated
the Eighth Amendment. Debriefing, the court held, would
create a risk to Griffin’s personal safety. And because
California did not present any evidence that Griffin was
active in the Aryan Brotherhood, nor any evidence as to why
it would not release him from the SHU via the inactive
review process, the court concluded that inactive review was
“at least for [Griffin], an illusory alternative to debriefing.”
The court determined that the combination of the harsh
conditions at Pelican Bay, and prison officials’ apparent
7

Id. at 1155, 1228–29.

8

Id.

9

Id. at 1261, 1265.

10

The district judge who sat in Griffin’s habeas case was not the district
judge who sat in the Madrid class action case.

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refusal to allow Griffin an inactive review, meant that Griffin
had remained in the SHU for twenty years because of his
refusal to debrief and “snitch out” Aryan Brotherhood
members. It found that the “sheer duration of [Griffin’s]
submission to the harsh conditions of the Pelican Bay SHU
crosses the line to become an unconstitutional threat to his
safety” and that “the duration of his confinement vitiates
‘active’ gang participation, which was the sole justification
for his segregation.” In a 2006 order, the court granted
Griffin’s habeas petition and commanded prison officials to
“release Petitioner from the SHU immediately,” evidently
referring to the Pelican Bay SHU, the only one discussed in
the order, the one addressed in the Madrid class action, and
the one in which it thought Griffin was being held. The court
gave prison officials a week to confirm that Griffin had been
released.
But when the district court ordered the prison system to
let Griffin out of the SHU, he was not in it. The State of
California advised the court, in response to the 2006 order,
that Griffin had been released from the Pelican Bay SHU 3 ½
years earlier, and was currently housed in a federal prison, not
in Pelican Bay. The State did not move the court to vacate
the order, or appeal it, likely because its command had
already been carried out, albeit long before the order rather
than in response to it. It was physically impossible for
California to violate the court’s order when it was issued,
because California did not have physical custody of Griffin
at that time.
The reason for Griffin’s release into federal confinement
was that he was a defendant in a massive federal RICO case.
The RICO indictment accused him of Aryan Brotherhood
activities during the period when he claimed to have become

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inactive in the Aryan Brotherhood. Griffin went to trial, and
the jury convicted him on January 9, 2007, of conspiring to
engage in multiple murders on behalf of the Aryan
Brotherhood. According to the indictment, Griffin was on the
Aryan Brotherhood’s twelve-member California Council and
on its California Commission, the three-member body with
authority over the Council and over all California Aryan
Brotherhood activities.11 The indictment details numerous
murders and attempted murders that Griffin authorized as a
member of the Commission. He had a prisoner’s father shot
and killed outside prison, because the prisoner testified
against the Aryan Brotherhood. He had another prisoner
choked to death for failure to carry out an order to commit
murder. He ordered that a third prisoner be stabbed to death
because he had disrespected high-ranking Aryan Brotherhood
members. He ordered that a fourth prisoner be murdered for
giving information to law enforcement, and that a fifth be
murdered for reasons unknown. He also ordered two
unsuccessful hits.
The indictment also accused Griffin of being active in an
Aryan Brotherhood conspiracy. Griffin’s defense to this
charge focused on his claim to have withdrawn from active
Aryan Brotherhood membership. He has made this claim
since at least 1991, when he published a public notice in a
California newspaper saying, “I, Robert Lee Griffin, declare
to all parties: I am not a member of a prison gang nor am I
involved in criminal activity. I have no desire to be
associated with either and denounce both.” The jury in his

11

According to the indictment, Griffin and other members of the
California Commission disbanded the Council in 1989, and increased the
Commission from three members to four. In 1994, they increased the
number of Commission members to six.

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RICO case did not believe him. In its “Special Verdict on
Withdrawal,” the jury answered “No” to the question “Did
defendant ROBERT LEE GRIFFIN withdraw from the
conspiracy charged in Count One [for conducting the affairs
of the Aryan Brotherhood prison gang] before August 28,
1997?”
The case before us now grows out of the 2006 order. In
2007, after spending about five years in federal prison and
after being given a life sentence on his RICO conviction,
Griffin was sent back to the California prison system. Prison
officials put him in the “Administrative Segregation Unit”
(“ASU”), not the SHU, at Pelican Bay pending an
investigation of his gang status. As they explained to the
district court, any newly-arrived prisoner suspected of being
a gang affiliate would be temporarily housed in the ASU
while his status was investigated. In 2008, prison officials
reviewed Griffin’s gang activity within the six years prior to
his review, relying on confidential informants, and on the
reports of inmates who were debriefing. They concluded that
Griffin was still an active Aryan Brotherhood member.
In 2008, before prison officials had concluded their
investigation into his gang status, Griffin filed a motion to
“enforce” the 2006 order that he be released from the Pelican
Bay SHU.12 He was not then in the SHU. In response to
Griffin’s motion, the district court directed a magistrate judge
to investigate whether or not Griffin’s confinement in the
Pelican Bay ASU was a violation of the court’s 2006 order
that Griffin be released from the Pelican Bay SHU. The
magistrate judge conducted an evidentiary hearing at Pelican
12

Griffin has been very ably represented by his attorney, counsel Pamela
J. Griffin, throughout these proceedings.

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Bay, and despite Griffin’s “five-year break” from the Pelican
Bay SHU and his different housing on return to Pelican Bay,
concluded that the prison system was violating the 2006
order, because the ASU was similar to and in some ways
more restrictive than the SHU. The magistrate judge found
that Griffin “was never released from state custody” because
during the five years that he was not in fact in state custody,
he was nevertheless classified as being on “out-to-court
status.” The magistrate judge did not mention the federal trial
and conviction. He stated that Griffin’s 2008 revalidation
was “perfunctory” and did not “relieve [prison officials] of
their failure to comply with the court’s [2006] order.”
In July 2009, the district court adopted the magistrate
judge’s report and ordered the prison to “immediately transfer
Petitioner to the general population or to housing that is less
restrictive than the SHU or the ASU.” The district court held
that prison officials’ “technical compliance” with its 2006
order was “improper” because its “restrictive reading of the
[2006]13 Order undermine[d] the clear spirit of that Order,
which was designed to place Petitioner in housing that was
less restrictive than the SHU.” This 2009 order is one of two
that are the objects of this appeal.
In 2009, before the district court ordered Griffin released
from the Pelican Bay ASU, prison officials transferred Griffin
to a different prison, California State Prison, Corcoran, where
they housed him in the Corcoran SHU. Griffin claimed that
this move was in violation of the 2006 and 2009 orders.

13

The district court refers to the “June 6 Order” and the “July 6 Order”
interchangeably. But there was no June 6 order, nor was there a July 6
order. Evidently the court meant the June 2006 order, which is what it and
the magistrate judge appeared to be discussing and applying.

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In March 2010, California filed a Rule 60(b) motion,
seeking relief from the 2006 and 2009 orders, based on newly
discovered evidence that Griffin remained active in the Aryan
Brotherhood. Prison officials filed declarations supporting
their view that Griffin ought to be returned to the Pelican Bay
SHU, not released into the general population or even
retained in the less restrictive Corcoran SHU, because of the
danger he posed to other inmates. They based these opinions
on new information obtained since his return from federal
custody, including an informant who said that Griffin had
issued a kill order while in federal custody, and another that
called him “the number one man” in the Aryan Brotherhood
at Corcoran. They believed that the isolation in the Pelican
Bay SHU — the walled exercise yards and limited
communication — that concerned the district court were
precisely what was necessary to protect other prisoners and
hamper Griffin’s communication with his gang. The
Corcoran SHU is not as isolated. Inmates can talk to each
other through chain link fences separating their exercise
yards, and can communicate with other inmates more freely
as they go to the shower and to medical and administrative
appointments. Prison officials feared that if Griffin remained
at Corcoran, or was released into the general population, he
would continue ordering murders of other inmates and their
family members.
The district court denied the Rule 60(b) motion as
“premature” because of the pending appeal from its 2009
order, without addressing the prison officials’ reasons or the
significance of the new information. When California moved
for leave to file a motion for reconsideration, the court denied
it on the ground that the “premature” motion was also too
late, because it was filed more than four years after the 2006
order, and the 2009 order “merely enforced” the 2006 order.

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The district court held that the motion could not be
considered as moving to modify a continuing injunction,
because the 2006 order commanded release from the Pelican
Bay SHU “immediately” and did not order continuing relief.
The district court has not made any findings of fact as to
whether Griffin has, subsequent to the 2006 order, ordered
the murder of other inmates or continued his other Aryan
Brotherhood activities. Nor has the district court ever
addressed the reasons why prison authorities think the risk of
inmate murders is too great if they keep Griffin at Corcoran
or release him into the general prisoner population.
In 2011, the district court issued a third order. Again, it
first asked a magistrate judge to inquire into Griffin’s housing
situation at Corcoran. The magistrate judge reported that
although the Corcoran SHU was “less restrictive” than the
Pelican Bay SHU, it was still “impermissibly” restrictive
because the conditions “fall short of those envisioned by
Judge Ware in his July 10, 2009 order.” Again the magistrate
judge did not mention the federal jury verdict in the RICO
trial subsequent to the 2006 order.
The district court held that even though the magistrate
judge had not mentioned the federal RICO verdict or
Griffin’s 2008 validation as a gang member, he must have
been aware of them because the prison authorities had
discussed these events in their papers. The district court
summarily overruled the prison authorities’ objections to the
magistrate judge’s report and ordered them to “immediately
transfer Petitioner to the general population or to housing that
is less restrictive than the SHU or the ASU.” We stayed this
2011 order pending the resolution of this appeal.

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ANALYSIS
Procedurally, this case is a mess. The orders on appeal
are the ones issued in 2009 and 2011. But both say that they
are based on the 2006 order. The 2006 order does not state
that it is a continuing injunction and the district court
subsequently ruled that it was not. The 2006 order only
orders Griffin’s immediate release from the Pelican Bay
SHU. We need not decide whether this order was moot when
issued. It is a grant of a petition for a writ of habeas corpus,
but it does not require that Griffin be released, just that his
conditions of confinement be changed. Though we had held
that such an order could issue on a habeas petition,14 the
Supreme Court has since held otherwise.15 Nevertheless, the
2006 order was not appealed, so we treat it as valid for
purposes of this litigation.16
The state raises various challenges to the 2006 order, but
we need not address them, because even assuming that the

14

See Griffin v. Gomez, No. 95-16684, 1998 WL 81336, at *1 (9th Cir.
Feb. 24, 1998) (“[H]abeas corpus jurisdiction is also available for a
prisoner’s claims that he has been subjected to greater restrictions of his
liberty, such as disciplinary segregation, without due process of law.”)
(quoting Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989)).
15

See Skinner v. Switzer, 131 S.Ct. 1289, 1299 n.13 (2011) (“[W]hen a
prisoner’s claim would not ‘necessarily spell speedier release,’ that claim
does not lie at the ‘core of habeas corpus’ and may be brought, if at all,
under § 1983.”) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005));
see also Blair v. Martel, 645 F.3d 1151, 1157 (9th Cir. 2011); Ramirez v.
Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (“[H]abeas jurisdiction is
absent, and a § 1983 action proper, where a successful challenge to a
prison condition will not necessarily shorten the prisoner’s sentence.”).
16

See Clifton v. California, 997 F.2d 660, 663 (9th Cir. 1993).

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2006 order was valid when issued, and that habeas corpus
rather than § 1983 was the proper avenue for relief, the orders
currently on appeal cannot stand and must be vacated. The
district court appears to have had jurisdiction to issue its 2009
and 2011 orders. They were orders purportedly issued
pursuant to the court’s inherent authority to enforce its own
unappealed habeas grant.17 We review such orders for abuse
of discretion,18 keeping in mind that courts should exercise
their inherent authority with restraint.19
1. Prison officials did not violate the 2006 order
In its 2006 order, the district court found that even though
the Pelican Bay SHU was not cruel and unusual for prisoners
who were not mentally ill or vulnerable, and even though the
debriefing requirement to get out was not cruel and unusual,
the combination of the two was cruel and unusual for Griffin.
In reaching this result, it disregarded the possibility of release
from the SHU through the inactive review process, noting
that Griffin’s review had been pending for five years. The
district court assumed, because California then presented it
with no evidence of Griffin’s continued gang activity, that the
duration of Griffin’s confinement in the SHU “vitiates
‘active’ gang participation.”

17

See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379–80
(1994); Hook v. State of Ariz. Dep’t of Corrs., 972 F.2d 1012, 1014 (9th
Cir. 1992).
18

See United States v. United States Dist. Court for N. Mariana Islands,
694 F.3d 1051, 1059 (9th Cir. 2012).
19

In re Levandar, 180 F.3d 1114, 1119 (9th Cir. 1999).

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However, much had changed by the time the court issued
its 2009 order. When he returned to state custody in 2007,
Griffin was placed in the ASU pending reevaluation of his
gang status.
This reevaluation concluded based on
particularized evidence that he had been active in the Aryan
Brotherhood within the past six years. Griffin’s 2007 RICO
conviction further undermined the district court’s prior
assumption. Griffin was found by the conviction, and by the
subsequent reevaluation, to be active in the Aryan
Brotherhood while confined in the SHU. The dissent argues
that Griffin’s RICO conviction could not be used to support
his 2008 gang validation because the last overt act supporting
the conviction occurred before the six year lookback period
for gang validation under the California prison regulations.20
That is beside the point. Griffin’s conviction proves beyond
a reasonable doubt that he was involved in gang activities
while in the Pelican Bay SHU. The conviction undermines
the 2006 order’s rationale for finding an Eighth Amendment
violation, that Griffin must have ended his Aryan
Brotherhood activities long before, because “the duration of
his confinement vitiates ‘active’ gang participation” and the
state had not provided evidence otherwise. His Aryan
Brotherhood activities were proved beyond a reasonable
doubt through 1997 in his federal RICO trial, and the state
provided evidence of subsequent Aryan Brotherhood
management activities in this case.
Griffin argues that changed circumstances such as his
2007 RICO conviction and 2008 gang validation can only be
addressed by a Rule 60(b) motion. However, the state does
not point to these circumstances solely in an effort to seek
relief from the 2006 order, which we presume to be valid. It
20

See Cal. Code Regs. tit. 15 §§ 3341.5(c)(5), 3378(e).

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also contends that, in light of these developments, the district
court abused its discretion in ordering Griffin’s release from
the ASU and SHU in 2009 and 2011. Both the RICO
conviction and the 2008 validation were repeatedly raised
below, and they are properly before this court,
notwithstanding the state’s failure to appeal the adverse
decision on its Rule 60(b) motion.
The 2006 order was limited to the circumstances of
Griffin’s confinement in the Pelican Bay SHU. The district
court itself interpreted it as not amounting to a continuing
injunction. It noted when denying California’s request for
reconsideration of its Rule 60(b) motion that the 2006 order
“does not grant injunctive relief or require supervision of
changing conduct — it simply orders Respondent to move
[Griffin] out of the SHU ‘immediately.’” Nor could the 2006
order reasonably be read to have implied that Griffin could
never be returned to the Pelican Bay SHU. Such a reading
would mean that Griffin could announce that he was again
leading the Aryan Brotherhood, publicly order more murders
which were carried out, yet still claim an entitlement to free
circulation and communication in the general prison
population. He is already confined for life terms on federal
and state convictions, so he could run his gang and order hits
on prisoners and on their relatives outside the prisons with
impunity. If the law required that result (which it does not),
the law would indeed be “a ass — a idiot.”21
In addition to the lack of evidence of Griffin’s continued
participation in the Aryan Brotherhood, the 2006 order noted
the particularly harsh conditions of the Pelican Bay SHU and
the extended duration of Griffin’s confinement there as
21

Charles Dickens, Oliver Twist 451 (Tom Doherty Associates 1998).

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21

relevant factors. However, Griffin had already been released
from the Pelican Bay SHU when that order was issued.
Possibly the case should then have been dismissed as moot
and the order vacated for that reason, but the respondents did
not seek that relief.22 Moreover, when Griffin returned to
Pelican Bay in 2007, after spending five years in federal
custody, prison officials placed him in the ASU, not the SHU.
After concluding that Griffin was still active in the Aryan
Brotherhood, they moved him to the SHU at California State
Prison, Corcoran. The magistrate judge’s report that the
district court adopted says that the Corcoran SHU is less
restrictive than the Pelican Bay SHU. And the district court’s
2006 order did not address the Corcoran SHU, just the
Pelican Bay SHU that the Madrid court had found to be
unique, and an Eighth Amendment violation only for
prisoners with mental health risks.23
In short, in 2009 and 2011, the district court faced
circumstances very different from those that existed when it
issued its original order. Griffin had spent five years in
federal custody in connection with RICO charges on which
he was ultimately convicted so the “duration of his
confinement” in the Pelican Bay SHU, central to the district
court’s 2006 order, no longer existed. Upon returning to
Pelican Bay, Griffin, like any other incoming prisoner
suspected of gang activity, was placed in the ASU pending
22

See Munoz v. Rowland, 104 F.3d 1096, 1097–98 (9th Cir. 1997)
(“Because [the petitioner] has been released from the SHU, we can no
longer provide him the primary relief sought in his habeas corpus petition.
[Petitioner]’s Fifth and Eighth Amendment challenges to the ‘debriefing’
process and the conditions of confinement in the SHU are therefore moot,
and must be dismissed.”).
23

See Madrid, 889 F. Supp. at 1228–30.

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evaluation of his gang status. Ultimately, he was “validated”
as an active gang member and placed in the Corcoran SHU.
The district court, as well as the magistrate judge, overlooked
these developments, instead focusing primarily on the
conditions of confinement at the ASU and Corcoran SHU
relative to the Pelican Bay SHU. However, the rationale of
the 2006 order was not so limited. Accordingly, in the
circumstances of this case, the district court abused its
discretion by finding violations of its 2006 order in 2009 and
2011.
We assume for purposes of discussion the validity of the
2006 order. But its validity does not matter to this appeal. It
ordered the state to do something already done, get Griffin
out of the Pelican Bay SHU. The district court itself
construed it as not a continuing order. It did not say that
Griffin could never be put in the SHU at another prison, or
that he could never be put in the Pelican Bay SHU again no
matter what. His subsequent RICO conviction established
that he had been lying about his “retirement” from gang
activities, and the evidence developed after his return to the
California penal system established that he still was active in
the Aryan Brotherhood. His lengthy federal confinement had
interrupted the long duration of his Pelican Bay SHU
confinement. The uninterrupted duration was the basis for
the district court’s view that Griffin must have ceased his
Aryan Brotherhood activities. Whatever the “spirit” of the
2006 order, it did not say that Griffin could not subsequently
earn his way back to the Pelican Bay SHU.

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23

2. The 2009 and 2011 orders improperly impede state
prison management
The 2009 and 2011 orders must be vacated as an abuse of
discretion for an independent and alternative reason, beyond
those mentioned above. In issuing those orders the district
court failed to take proper account of the line of Supreme
Court authority limiting federal district court management of
state prisons. Prison administrators are entitled to “wideranging deference in the adoption and execution of policies
and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional
security.”24 “We must accord substantial deference to the
professional judgment of prison administrators, who bear a
significant responsibility for defining the legitimate goals of
a correctional system and for determining the most
appropriate means to accomplish them.”25 Similarly, we have
recognized that “deference requires ‘that neither judge nor
jury freely substitute their judgment for that of officials who
have made a considered choice.’”26
Prison management is complex and requires “expertise,
planning, and the commitment of resources.”27 Therefore,
“[r]unning a prison is . . . peculiarly within the province of
the legislative and executive branches of government,” and
“courts are ill equipped to deal with the increasingly urgent
24

Bell v. Wolfish, 441 U.S. 520, 547 (1979).

25

Overton v. Bazzetta, 539 U.S. 126, 132 (2003).

26

Norwood v. Vance, 591 F.3d 1062, 1066–67 (9th Cir. 2009) (quoting
Whitley v. Albers, 475 U.S. 312, 322 (1986)).
27

Turner v. Safley, 482 U.S. 78, 85 (1987).

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problems of prison administration and reform.”28 In
particular, federal courts should exercise restraint when
reviewing management decisions taken by prison
administrators to secure the safety of prisoners and state
prison personnel. Courts are “‘particularly deferential’ to
prison administrators’ regulatory judgments,” if
“[a]ccommodating [a prisoner’s] demands would . . . impair
the ability of corrections officers to protect all who are inside
a prison’s walls.”29 Also, “[p]rison officials must be free to
take appropriate action to ensure the safety of inmates and
corrections personnel and to prevent escape or unauthorized
entry.”30 “[I]nternal security is peculiarly a matter normally
left to the discretion of prison administrators.”31 The district
court orders are inconsistent with these principles.
Of course, if the California prison system were imposing
cruel and unusual punishment on Griffin, the district court
could and must command it to stop. And if California were
merely trying to evade the court’s 2006 order by putting
Griffin in less restrictive housing for a day and then returning
him to the SHU, the district court would likewise have
authority to command it to stop. But here, California had no
control over Griffin’s housing for five years, and did not
merely put him back into the Pelican Bay SHU or even the
Corcoran SHU when he returned. They held him in the
Pelican Bay ASU, and conducted an investigation into his

28

Id. at 84–85.

29

Overton, 539 U.S. at 136 (citing Turner, 482 U.S. at 90).

30

Bell, 441 U.S. at 547.

31

Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981).

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25

recent gang activity – a wise move when presented with a
prisoner who had been active in the Aryan Brotherhood even
while confined in the Pelican Bay SHU. Neither the ASU
housing nor the investigation violated the district court’s
2006 order.
California’s prison officials have a duty to Griffin to
imprison him in a manner that does not violate the Eighth
Amendment. But he is not California’s only prisoner.
California has an Eighth Amendment duty to its other
prisoners as well. Throughout this litigation, prison officials
explained their exercise of discretion as necessary for the
safety of other prisoners, because Griffin’s federal conviction
established that their concern is well founded. They fear that
if he is placed in less restrictive housing, he will have more
opportunity to order beatings and murders on behalf of the
Aryan Brotherhood. California’s other prisoners may be
murderers, rapists, drug dealers, and child molesters, but
California is responsible for protecting even those sorts of
people from murder by other prisoners. Indeed, the Eighth
Amendment requires that prison officials “must take
reasonable measures to guarantee the safety of the inmates.”32
Having incarcerated persons [with]
demonstrated proclivit[ies] for antisocial
criminal, and often violent, conduct, having
stripped them of virtually every means of
self-protection and foreclosed their access to
outside aid, the government and its officials
are not free to let the state of nature take its
course. . . . Being violently assaulted in prison
32

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation
marks omitted).

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is simply not part of the penalty that criminal
offenders pay for their offenses against
society.33

And California’s prison officials owe it to people outside the
prison, like the prisoner’s father whom Griffin had killed, to
try to protect them from murderous conspiracies by those in
its charge. “[The State]’s first obligation must be to ensure
the safety of guards and prison personnel, the public, and the
prisoners themselves.”34
In assuring that the punishment imposed is appropriate,
the prison authorities must perform a delicate balancing of
concerns, generally quite beyond the competence of a district
judge. On the one hand, they must stay within the Eighth
Amendment boundary for a dangerous criminal like Griffin
and the many other dangerous criminals they house. On the
other hand, they must, to comply with the Eighth
Amendment, protect those very same criminals from each
other, which may entail very severe restraints. In this case,
prison officials sought to perform this difficult balancing act
by confining Griffin as closely as possible, while complying
with the district court’s orders in a manner that would least
endanger others. Their reason for their exercise of discretion
was that Griffin’s continuing leadership in the Aryan
Brotherhood created too much danger to other inmates if he
were less closely confined.

33

Id. at 833–34 (quotation marks and internal citations omitted).

34

Wilkinson v. Austin, 545 U.S. 209, 227 (2005).

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CONCLUSION
The district court said that its 2009 order was intended to
effectuate the “spirit” of its 2006 order. Its 2011 order was
intended to effectuate its 2009 order. Both orders evidently
invoke the court’s inherent authority to effectuate its 2006
order. But “[a] court must exercise its inherent powers with
restraint and discretion in light of their potency.”35 The
district court exceeded the boundaries of its authority and
ignored the developments subsequent to its 2006 order. We
conclude that the district court’s 2009 and 2011 orders were
an abuse of discretion.
We vacate the 2009 and 2011 orders. We remand with
directions to dismiss. Griffin of course may file such suits as
may be appropriate from time to time as future developments
may warrant.
VACATED, REVERSED, AND REMANDED.

BERZON, Circuit Judge, dissenting:
Three times — in 2006, 2009, and 2010 — the district
court ordered state officials (“California” or “the State”) to
release Robert L. Griffin from segregated housing conditions.
Three times, state officials defied that command. California
could have appealed the district court’s substantive rulings to
us at least twice: after the 2006 Order requiring Griffin’s
release, and after the district court in 2010 declined to grant

35

In re Levandar, 180 F.3d 1114, 1119 (9th Cir. 1999).

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a Federal Rule of Civil Procedure 60(b) motion for relief
from that order. But it did not.
The majority does not so frame the case. Instead,
understandably troubled by Griffin’s history as a gang leader,
it rewrites history, sanctioning California’s defiance of
judicial orders, excusing its litigation mistakes, and
undertaking review of issues beyond our jurisdiction.
So let us be clear what California is appealing, and what
the majority is — or should be — ruling on: the two
enforcement orders that followed the underlying 2006 Order
granting habeas and the subsequent denial of relief from
judgment under Rule 60(b), both of which are final because
the State never appealed them. As a result, the only issue
properly before this Court now is whether the district court
misconstrued its own 2006 Order when it directed California
to transfer Griffin to less restrictive housing in July 2009 and
February 2011 (“2009 Order” and “2011 Order,”
respectively). As the district court’s reading of its own earlier
order was more than reasonable, the 2009 and 2011 Orders
should be affirmed. Although one might think otherwise
from the majority opinion, resolving that issue — whether the
district court misconstrued its own earlier, unappealed order
— resolves this case.
Obviously, public safety is a critical consideration. But
the principle that government officials may not defy judicial
orders is critical as well, as this country was reminded
repeatedly during the civil rights battles of the 1950s and
1960s, see, e.g., Cooper v. Aaron, 358 U.S. 1, 18–19 (1958),
and again recently with regard to judicial orders to alleviate
prison overcrowding, Coleman v. Brown, 922 F. Supp. 2d
1004, 1049 (E.D. Cal. & N.D. Cal. 2013).

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29

Whether California, having complied with the 2006 Order
and released Griffin from segregated housing, could then
revalidate him as a gang member and send him back to
segregated housing is not here at issue, and I express no
opinion on that question. Instead, I dissent because, as I
demonstrate below, the only consideration that matters at this
juncture is that California has never — not even for a moment
— complied with the original release order, as construed by
the court that issued it.
I.
I begin by identifying the orders not on appeal. Doing so
explains why the State’s failure to appeal these decisions
limits the issues before us.
The 2006 Order held that further retention of Griffin in
the Security Housing Unit (“SHU”) would violate the Eighth
Amendment. Specifically, the district court pointed to the
combination of the “crushing” conditions of the SHU, an
“illusory” gang review process for Griffin, and the “duration
of his retention in the SHU for 20 years[,] . . . a shockingly
long period of time.” Accordingly, the district court directed
California to “release Petitioner from the SHU immediately”
and to file a notice within one week that it had done so.
Although Griffin “remain[ed] in the constructive custody
of the California Department of Corrections and
Rehabilitation,” he was at the time of the 2006 Order “housed
at a federal prison.” The State so informed the district court
for the first time after the 2006 Order issued.
When Griffin returned from federal detention in 2007, the
district court reopened proceedings to determine whether

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California “complied with” the 2006 Order by placing him in
the Administrative Segregation Unit (“ASU”) at the Pelican
Bay State Prison, and then, later, the SHU at California State
Prison, Corcoran. After finding that housing Griffin in the
Pelican Bay ASU and the Corcoran SHU violated the “clear
spirit” of the 2006 Order, the district court issued orders in
2009 and 2011 to enforce its prior habeas grant.
The State appealed only the 2009 and 2011 enforcement
orders, not the 2006 Order. Although the State moved in
2010 for relief from the 2006 Order under Rule 60(b), it did
not appeal the district court’s denial of that motion. The
State’s decisions not to appeal the 2006 Order or the
subsequent denial of relief from judgment significantly
narrows the scope of this Court’s jurisdiction. We have
before us only the question whether the district court abused
its discretion in concluding that its 2006 Order had not been
complied with, and in devising orders to assure compliance.
A.
“We begin with the basic proposition that all orders and
judgments of courts must be complied with promptly. If a
person to whom a court directs an order believes that order is
incorrect the remedy is to appeal, but, absent a stay, he must
comply promptly with the order pending appeal.” Maness v.
Meyers, 419 U.S. 449, 458 (1975). This “rule is applicable to
Governor Brown, as well as the lowliest citizen.” Coleman,
922 F. Supp. 2d at 1054. “Persons who make private
determinations of the law and refuse to obey an order
generally risk criminal contempt even if the order is
ultimately ruled incorrect.” Maness, 419 U.S. at 458. Absent
an appeal of the original judgment, Rule 60(b) “provides the
vehicle . . . to bring . . . an argument” that “changed

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31

circumstances” merit relief from a judgment. Horne v.
Flores, 557 U.S. 433, 439 (2009); see also Gonzalez v.
Crosby, 545 U.S. 524, 534 (2005) (“Rule 60(b) has an
unquestionably valid role to play in habeas cases. . . . In
some instances . . . the State . . . seeks to use Rule 60(b)[] to
reopen a habeas judgment granting the writ.”).
B.
A party that fails to make an appropriate Rule 60(b)
motion, or appeal the denial thereof, is bound by the prior
judgment notwithstanding any changed circumstances. See
Clifton v. Attorney Gen. of Cal., 997 F.2d 660, 664–65 (9th
Cir. 1993). Clifton involved the enforcement of a district
court order requiring the state to provide a prisoner with
annual parole hearings. Id. at 665. The case arose in a
slightly different procedural posture from this one: the state
had neither appealed the district court’s original order
granting habeas, nor moved for relief from judgment under
Rule 60(b). Id. at 662–63. Instead, the state simply refused
to comply with the district court’s order to provide Clifton
with annual parole hearings, on the ground that a subsequent
change in the law undermined the court’s prior habeas grant.
Id. at 661–62. Clifton moved to enforce the court’s grant of
habeas relief, seeking to require the state to provide a parole
hearing as ordered.
On appeal, we characterized the district court’s original
habeas order as a “judgment [that] ha[d] become final.” Id.
at 662. In that posture, it was irrelevant that the law under
which Clifton was granted relief was no longer valid.
Applying the “general principle [that] ‘the res judicata
consequences of a final, unappealed judgment on the merits
[are not] altered by the fact that the judgment may have been

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wrong or rested on a legal principle subsequently overruled
in another case[,]’” the court concluded that “Clifton was
entitled to his final judgment on the merits.” Id. at 663
(quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394,
398 (1981)).
C.
In this case, unlike in Clifton, the State did move in the
district court, in March 2010, for Rule 60(b) relief from the
2006 Order. The State asserted that “newly discovered
evidence demonstrates that if this Court requires Respondent
to place Griffin in any custody setting less restrictive than
SHU, . . . the safety and security of the institution where
Griffin is housed would be severely compromised, as would
public safety.” In support of its motion, the State submitted
declarations summarizing evidence that was used to support
Griffin’s 2008 validation as an gang member. The State also
submitted, but then withdrew, four confidential memoranda
allegedly evidencing Griffin’s involvement with the gang at
the Corcoran SHU since 2009.
The district court denied the Rule 60(b) motion on the
merits. The denial of a Rule 60(b) motion is a final,
appealable order. See, e.g., Jeff D. v. Kempthorne, 365 F.3d
844, 850 (9th Cir. 2004). The State did not appeal. The State
must therefore treat the court’s 2006 Order as valid, and so
must we. We likewise cannot review the State’s argument,
raised in the Rule 60(b) motion, that changed circumstances
rendered the 2006 Order obsolete, because the State failed to
utilize “the vehicle . . . to bring such an argument” before this
Court. Horne, 557 U.S. at 439.

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33

Notwithstanding the foregoing, the majority opinion is
premised on the district court’s failure to consider the
existence of “circumstances very different from those that
existed when [the district court] issued its original order[.]”
Maj. Op. at 21. But any changed circumstances are entirely
irrelevant to the question before us. Further, by reaching out
to effectively review the district court’s Rule 60(b) decision
despite the State’s failure to appeal it, the majority
encourages the State to violate final judgments without either
appealing those judgments or seeking relief through the
appropriate procedural vehicle.
II.
As we lack jurisdiction to review the 2006 Order or the
Rule 60(b) denial, we are left to consider whether, in issuing
the 2009 and 2011 orders, the district court properly exercised
its inherent authority to enforce its 2006 Order. As the
majority acknowledges, we review such orders for abuse of
discretion. See Maj. Op. at 18. Accordingly, we may reverse
the district court “only when the appellate court is convinced
firmly that the reviewed decision lies beyond the pale of
reasonable justification under the circumstances.” Harman
v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000). Unless the
district court decision is “illogical, implausible, or without
support in the record,” Chun v. Korean Air Lines Co., Ltd. (In
re Korean Air Lines Co.), 642 F.3d 685, 698 (9th Cir. 2011),
we must affirm.
Moreover, courts of appeals must defer to a district
court’s reasonable interpretation of its own order. See, e.g.,
Powell v. Omnicom, 497 F.3d 124, 133 (2d Cir. 2007)
(“defer[ring] to the district court’s reasonable and implicit
interpretation of its own order”); Eagle Comtronics, Inc. v.

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Arrow Commc’n Labs, Inc., 305 F.3d 1303, 1314 (Fed. Cir.
2002) (“A district court has great discretion when deciding
how to enforce violations of its own orders.”); Cave v.
Singletary, 84 F.3d 1350, 1354 (11th Cir. 1996) (noting
“deference on appeal when” “district court’s interpretation of
its own order” “is reasonable”); Anderson v. Stephens,
875 F.2d 76, 80 n.8 (4th Cir. 1989) (noting the “inherent
deference due a district court when it construes its own
order”).
“Deference” is particularly “appropriate in this case, as it
has been under the supervision of [the same] District Judge
. . . and [the] Magistrate Judge . . . since its inception.” Gates
v. Gomez, 60 F.3d 525, 530 (9th Cir. 1995). Yet, although the
majority speaks in terms of abuse of discretion review, Maj.
Op. at 18, its analysis belies application of this deferential
standard.
A.
I begin by looking at the circumstances underlying and
the district court’s stated reasons for issuing the 2009 and
2011 enforcement orders.
The 2006 Order directed California to “release Petitioner
from the SHU immediately.” On Griffin’s return from
federal custody, California placed him in the ASU at Pelican
Bay. Griffin then moved to enforce the 2006 Order, asserting
that his placement in the Pelican Bay ASU violated the
court’s prior directive. The district court assigned Magistrate
Judge Vadas to investigate whether that placement
constituted compliance with the 2006 Order and to provide a
Report and Recommendation (“R&R”).

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Magistrate Judge Vadas proceeded to hold extensive
evidentiary hearings, during which Griffin’s counsel and the
magistrate judge examined witnesses about the ASU
conditions. The State’s Institutional Gang Investigator
(“IGI”), John McKinney, testified that “[p]hysically, [the
ASU] . . . it’s very similar in nature [to the SHU] as far as
security measures.” IGI Joseph Beeson testified that “in the
housing unit itself, the interaction [among prisoners] would
be similar to a security housing unit.” IGI McKinney
testified that exercise conditions were more restrictive in the
ASU than at the Pelican Bay SHU, because prisoners exercise
in “individual cages.” Correctional counselor Doug Edwards
testified that the ASU “is a more restricted environment [than
the SHU], more property control. Canteen is more controlled.
So [Griffin has] lost some of the privileges that he had
previously” in the SHU.
The magistrate judge also heard testimony regarding the
process by which California revalidated Griffin as a gang
member. IGI Beeson admitted that the 2006 Order did not
“impact in any way the way [he] . . . investigated Mr.
Griffin.” Correctional counselor Edwards testified that
“based on who [Griffin] is, how long he’s been in the
department, how long he’s been SHU . . . we are currently
punishing him for being who he is, what he is . . . .”
Ultimately, Magistrate Judge Vadas concluded that the
ASU is “not only similar to the SHU, but is in fact for real
purposes more restrictive . . . .” Further, “[t]he fact that
Respondents conducted a perfunctory review process of
Petitioner’s gang status” after he returned from federal jail in
2007, “does not relieve Respondents of their failure to
comply with the court’s [2006] Order.” If Griffin could not
be housed in a less restrictive environment, Magistrate Judge

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Vadas found, California “should have challenged the [2006]
Order, but to” place Griffin in the ASU “is not a proper
response to Judge Ware’s [2006] Order.” The R&R
accordingly concluded that California had not complied with
the 2006 Order, when it (1) used the same procedures to
validate Griffin as a gang member that the district court
previously found deficient; and (2) confined Griffin in
similarly harsh conditions as the Pelican Bay SHU.
The district court followed Magistrate Judge Vadas’
R&R. Rejecting California’s “restrictive reading” of the
2006 Order as focused solely on the Pelican Bay SHU, the
district court held that the State had violated the “clear spirit
of that Order, which was . . . designed to place Petitioner in
housing that was less restrictive than the SHU.” As the ASU
at Pelican Bay was “more restrictive than the SHU housing
previously condemned by the Court,” California’s “technical
compliance with the [2006] Order” — by moving Griffin
from the SHU to the ASU — “was nonetheless an improper
response to the Court’s directives.” The district court thus
ordered California to “immediately transfer Petitioner to the
general population or to housing that is less restrictive than
the SHU or the ASU.”
In my view, the 2009 Order was eminently reasonable —
certainly not an abuse of discretion. The 2006 Order had
directed the State to release Griffin from the SHU. The
magistrate judge, who had been “supervisi[ng]” the case
“since its inception,” Gates, 60 F.3d at 530, recommended
finding California noncompliant after reviewing an extensive
evidentiary record regarding the relevant facts underlying the
2006 Order — both the conditions of Griffin’s continued
confinement and the procedures pursuant to which California
placed him in those conditions. Relying on those findings,

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the 2009 Order simply clarified that the court’s 2006 Order
applied not only to the Pelican Bay SHU, but to any
environment tantamount to the SHU.
The majority takes a different view of the 2006 Order,
suggesting that the command to “‘release Petitioner from the
SHU immediately[]’ evidently referr[ed] to the Pelican Bay
SHU, the only one discussed in the order . . . and the one in
which [the district court] thought Griffin was being held.”
Maj. Op. at 11 (emphasis added). Although the majority’s
interpretation of the 2006 Order may be a permissible one, so
is that of the district court. Under these circumstances, the
majority has no authority to substitute its interpretation for
that of the trial court.
B.
Nor did the district court abuse its discretion in
concluding that California again violated the 2006 Order by
transferring Griffin to the Corcoran SHU.
Griffin adduced evidence that the Corcoran SHU was
substantially similar to the Pelican Bay SHU. A declaration
submitted by the State admitted that “living conditions are
essentially the same in each of [the State’s] SHUs.”
Magistrate Judge Vadas visited the Corcoran SHU, conducted
an inspection, and concluded that:
[t]hough less restrictive in nature than the
SHU at [Pelican Bay], Corcoran SHU remains
an impermissibly restrictive environment.
Every move of an inmate is monitored.
Exercise . . . is . . . in outdoor cages . . . .
Inmates remain in their cells, except when

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being transferred by escort in chains to
medical appointments, law library,
disciplinary hearings, and exercise. Inmates
. . . are fed in their cells. These housing
conditions fall short of those envisioned by
Judge Ware in his . . . 2009 Order.

California argued that additional evidence obtained since
December 2009, allegedly documenting Griffin’s continued
gang affiliation, made it impossible to place him anywhere
but the SHU. But the State never submitted this evidence for
the record, and so Magistrate Judge Vadas correctly refused
to consider it.
Based on the evidence actually presented, Magistrate
Judge Vadas concluded in 2011 that California “continue[s]
to fail to comply with the orders of this Court regarding the
conditions of confinement of the Petitioner.” The district
court agreed, and — as it had done two years prior —
directed California to “immediately transfer Petitioner to the
general population or to housing that is less restrictive than
the SHU or the ASU.”
The district court’s 2011 Order was entirely reasonable.
The 2006 Order mandated Griffin’s “immediate[]” release
“from the SHU.” Interpreting that order to require Griffin’s
release from the Corcoran SHU — when that facility was
similar to the Pelican Bay SHU, and California had failed to
comply with either of the district court’s previous orders
mandating release from such restrictive conditions — was
well within the court’s discretion.

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C.
The majority’s arguments to the contrary are not
supported by the record. The majority concludes that
California “did not violate” the 2006 Order, Maj. Op. at 18,
because the 2006 Order “did not address” the ASU or the
Corcoran SHU, “just the Pelican Bay SHU[,]” id. at 21.
As I have explained, the majority simply disagrees with
the judge who issued the 2006 Order as to that order’s proper
meaning. The majority provides no explanation — none at
all — for why it was “illogical, implausible, or without
support in the record,” Korean Air Lines, 642 F.3d at 698, to
read the 2006 Order as applying to the Pelican Bay SHU and
any similarly restrictive environment. Instead, the majority
just substitutes its own reading for the district court’s
interpretation, ignoring the deference we owe that
interpretation.
Nor does the majority appear to hold clearly erroneous
Magistrate Judge Vadas’ factual findings, adopted by the
district court, that conditions in the Pelican Bay ASU and
Corcoran SHU are similar to the Pelican Bay SHU, and so
“fall short of those envisioned by Judge Ware . . . .” Further,
although the majority takes issue with the district court’s
finding that the 2008 gang revalidation was “perfunctory,”
the majority does not state whether that finding is clearly
erroneous, and if so, how.
In fact, the latter finding was not clearly erroneous.
Contrary to the majority’s suggestion that the State adduced
new “particularized evidence,” Maj. Op. at 19, to support
revalidation, most of the documents lack any details about
specific gang activity by Griffin. Instead, they are bare

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statements by gang members undergoing debriefing that
Griffin is still involved in the gang. And ten of the fifteen
“new” documents produced by the State predate the 2006
Order.
Moreover, Griffin’s 2007 RICO conviction could not,
under the relevant prison regulations, be used to support
Griffin’s 2008 gang validation. See Cal. Code Regs. tit. 15
§§ 3341.5(c)(5), 3378(e). The last overt act supporting that
conviction occurred in 1997, before the six year lookback
period for gang validation. Id. Presumably in recognition of
these regulations, the State has never cited Griffin’s RICO
conviction as a basis for keeping him the SHU or ASU. The
majority’s criticism of the district court for failing to consider
whether the RICO conviction rendered the 2008 revalidation
appropriate, rather than perfunctory, is therefore misplaced.
Unless the district court’s reading of its own order was
unreasonable, or its factual findings clearly erroneous, there
is no basis for the majority’s conclusion that California
complied with the 2006 Order by moving Griffin from one
housing unit to another without meaningfully changing his
conditions of confinement.
III.
Perhaps to cover over its usurpation of the district court’s
enforcement authority, the majority suggests that the district
court erred by failing to exercise its authority “with restraint.”
Maj. Op. at 18. Judicial restraint is a virtue, but not when a
party repeatedly disregards court orders.
In rejecting the district court’s reasonable interpretation
of its own order, and saving the State from its own poor

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litigation choices, the majority opinion serves only to
encourage California’s future noncompliance with court
directives. The message it sends is clear: the State may
refuse to comply with valid court orders, fail to appeal
adverse decisions, and decline to take appropriate steps to
seek relief. As long as the State has a “well founded”
“concern” that compliance with the Constitution will
jeopardize the safety of other prisoners — a defense that will
often be available where prisoners confined to restrictive
housing units are involved — the State’s disregard of court
orders will be excused. Maj. Op. at 25.
The majority criticizes the district court for “‘substitut[ing
its] judgment for that of officials who have made a considered
choice’” regarding Griffin’s housing. Id. at 23 (citations
omitted). I certainly agree that we “must be sensitive to the
State’s . . . difficult and dangerous task of housing large
numbers of convicted criminals.” Brown v. Plata, 131 S. Ct.
1910, 1928 (2011). But “[c]ourts nevertheless must not
shrink from their obligation to ‘enforce the constitutional
rights of all “persons,” including prisoners.’” Id. (citation
omitted). We “may not allow constitutional violations to
continue simply because a remedy would involve intrusion
into the realm of prison administration.” Id. at 1928–29. And
“‘where federal constitutional rights have been traduced, . . .
principles of restraint, including comity, separation of powers
and pragmatic caution dissolve . . . .’” Stone v. City & Cnty.
of San Francisco, 968 F.2d 850, 860–61 (9th Cir. 1992)
(citation omitted).
The district court here held that Griffin’s federal
constitutional rights were violated by his extremely prolonged
confinement in extremely restrictive conditions. Whether the
district court was right or wrong in that regard is not our

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concern at this point, and so the deference ordinarily owed to
prison officials is beside the point. What is the point is that
the State may not violate court orders as to which it never
sought appellate review. There is just no basis for upsetting
the enforcement orders issued by the district court, which had
“supervis[ed]” this difficult case “since its inception[,]”
Gates, 60 F.3d at 530, visited the facilities, conducted
extensive evidentiary hearings, and fashioned the relief being
enforced.
On the narrow issue before us, I would affirm.
therefore, respectfully, dissent.

I