John Armstrong, et al v. Edmund Brown, Jr., et al

Filing

FILED OPINION (STEPHEN R. REINHARDT, A. WALLACE TASHIMA and MARSHA S. BERZON) In No. 12-16018, the appeal is DISMISSED as moot. In No. 12-17198, the orders of the district court are AFFIRMED. In both appeals, Plaintiffs-Appellees shall recover their costs on appeal from Defendants-Appellants. Judge: SR Authoring, FILED AND ENTERED JUDGMENT. [8810098] [8810098]--[Edited 10/04/2013 by RP]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN ARMSTRONG; JAMES
AMAURIC; RICHARD PONCIANO;
JACK SWENSEN; BILLY BECK; JUDY
FENDT; WALTER FRATUS; GREGORY
SANDOVAL; DARLENE MADISON;
PETER RICHARDSON; STEVEN HILL;
DAVID ROSE; DAVID BLESSING; ELIO
CASTRO; ELMER UMBENHOWER;
RAYMOND HAYES; GENE
HORROCKS; KIAH MINCEY; CLIFTON
FEATHERS; WILLIE JOHNSON; DAVID
BADILLO; JAMES SIMMONS; FLORA
ABRAMS; JOEY GOUGH; TIMOTHY
WHISMAN,
Plaintiffs-Appellees,
v.
EDMUND G. BROWN, JR.; MICHAEL
MINOR; MATTHEW L. CATE; DIANA
TOCHE; CHRIS MEYER; KATHLEEN
DICKINSON; ROBERT AMBROSELLI,
Defendants-Appellants.

No. 12-16018
D.C. No.
4:94-cv-02307CW

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JOHN ARMSTRONG; JAMES
AMAURIC; RICHARD PONCIANO;
JACK SWENSEN; BILLY BECK; JUDY
FENDT; WALTER FRATUS; GREGORY
SANDOVAL; DARLENE MADISON;
PETER RICHARDSON; STEVEN HILL;
DAVID ROSE; DAVID BLESSING; ELIO
CASTRO; ELMER UMBENHOWER;
RAYMOND HAYES; GENE
HORROCKS; KIAH MINCEY; CLIFTON
FEATHERS; WILLIE JOHNSON; DAVID
BADILLO; JAMES SIMMONS; FLORA
ABRAMS; JOEY GOUGH; TIMOTHY
WHISMAN,
Plaintiffs-Appellees,

No. 12-17198
D.C. No.
4:94-cv-02307CW

OPINION

v.
EDMUND G. BROWN, JR.; MICHAEL
MINOR; MATTHEW L. CATE; DIANA
TOCHE; CHRIS MEYER; KATHLEEN
DICKINSON; MARGARITA PEREZ,
Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of California
Claudia Wilken, Chief District Judge, Presiding
No. 12-16018
Argued and Submitted
September 5, 2012—San Francisco, California

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No. 12-17198
Submitted September 27, 2013*
Filed October 4, 2013
Before: Stephen Reinhardt, A. Wallace Tashima,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Reinhardt

SUMMARY**

Prisoner Civil Rights
In an action initiated in 1994 by disabled prisoners and
parolees seeking disability accommodation under the
Americans with Disabilities Act and the Rehabilitation Act,
the panel (1) affirmed the district court’s August 28, 2012
orders which required California state officials to disseminate
and implement a previously negotiated County Jail Plan for
disabled prisoners and parolees, and (2) dismissed as moot an
appeal from the district court’s April 2012 orders.
Defendant state officials asserted that a narrow portion of
a class of disabled state prisoners and parolees was no longer
eligible to benefit from the district court’s remedial orders

*

The panel unanimously concludes that this appeal is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
**

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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due to amendments to California Penal Code § 3056, which
were designed to ameliorate overcrowding in state prisons by
placing certain parolees in county facilities. The panel held
that although § 3056 altered the balance of control between
the state and its counties somewhat while parolees covered by
§ 3056 were incarcerated, both the instigation of parole
revocation and the service of any jail time for revocations
enforced state-imposed requirements and served essentially
state purposes. Therefore, the state was not absolved by
§ 3056 of all its responsibility for Americans with Disabilities
Act obligations as to parolees placed in county jails to enforce
their state-imposed sentences, including their parole
conditions. The panel concluded that the district court’s
August 28 orders requiring implementation of the County Jail
Plan neither conflicted with § 3056 nor required more of
defendants than was appropriate to assist in remedying the
Americans with Disabilities Act and Rehabilitation Act
violations for which they bore responsibility.
The panel dismissed as moot the appeal from the district
court’s April orders which required renewed negotiations and
the eventual dissemination to the counties of a compliance
plan providing for, among other things, the tracking and
monitoring of class members housed in county jails.

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COUNSEL
Kamala D. Harris, Attorney General of the State of
California; Jonathan L. Wolff, Senior Assistant Attorney
General; Jay C. Russell, Supervising Deputy Attorney
General; Giam M. Nguyen, Janelle M. Smith, and Jay M.
Goldman (argued), Deputies Attorney General, San
Francisco, California, for Defendants-Appellants.
Michael W. Bien, Gay C. Grunfeld (argued), Lisa Ells, Blake
Thompson, and Michael Freedman, Rosen Bien Galvan &
Grunfeld LLP, San Francisco, California; Warren E. George,
Bingham McCutchen LLP, San Francisco, California; Donald
Specter and Rebekah Evenson, Prison Law Office, Berkeley,
California; and Linda Kilb, Disability Rights Education &
Defense Fund, Inc., Berkeley, California, for PlaintiffsAppellees.

OPINION
REINHARDT, Circuit Judge:
Since 1994, disabled state prisoners and parolees have
been engaged in a seemingly never-ending struggle with
California state officials over whether defendants must
provide disability accommodations under the Americans with
Disabilities Act (“ADA”) and the Rehabilitation Act. These
accommodations include basic necessities of life for disabled
prisoners and parolees, such as wheelchairs, sign language
interpreters, accessible beds and toilets, and tapping canes for
the blind. Notwithstanding a series of careful district court
orders dating back to 1996 and an opinion by this Court
affirming the issuance of a permanent injunction, defendants

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have resisted complying with their federal obligations at
every turn. These appeals provide no exception. Defendants
contend that a narrow portion of the class of disabled state
prisoners and parolees is no longer eligible to benefit from
the district court’s remedial orders due to a change in
California Penal Code § 3056. We reject that contention and
affirm the district court’s latest enforcement orders.
BACKGROUND
Our most recent opinion in this case summarized its long
history. See Armstrong v. Schwarzenegger, 622 F.3d 1058,
1063–64 (9th Cir. 2010). In that opinion, we affirmed the
validity of an ADA regulation1 and concluded that defendants
“cannot shirk their obligations to plaintiffs under federal law
by housing them in facilities operated by the third-party
counties.” Id. at 1074. We made clear that “defendants have
the responsibility of ensuring that their prisoners are afforded
their rights under the ADA, regardless of where the State
incarcerates them.” Id. at 1072.
Since our 2010 decision, plaintiffs have renewed their
motion in the district court to enforce the injunction against
defendants as it pertains to class members housed in county
jails, and California has begun implementation of
“realignment,” a plan designed to ameliorate overcrowding in
its prisons.
As a part of realignment, amendments to § 3056 became
effective on October 1, 2011. Defendants then asserted in the
district court that they had been absolved by these
amendments of all responsibility for violations of class
1

28 C.F.R. § 35.130(b)(1).

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members’ rights while they are housed by state law in county
jails.2 The district court rejected this contention in January
2012 and then again in April 2012.3 It also issued orders
(“the April orders”) requiring the renewal of negotiations and
the eventual dissemination to the counties of a compliance
plan providing for, among other things, the tracking and
monitoring of Armstrong class members housed in county
jails. Defendants appealed these orders. The parties then
negotiated a revised County Jail Plan (“the Plan”).

2

Prior to October 1, 2011, § 3056 provided “[prisoners] on parole shall
remain under the legal custody of the department and shall be subject at
any time to be taken back within the inclosure of the prison.” Cal. Penal
Code § 3056 (West 2010). The realignment amendments provided:
“Prisoners on parole shall remain under the supervision
of the department but shall not be returned to prison
except as provided in subdivision (b) or as provided by
subdivisions (c) or Section 3000.09. Except as
provided by subdivision (c) of Section 3000.09, upon
revocation of parole, a parolee may be housed in a
county jail for a maximum of 180 days. When housed
in county facilities, parolees shall be under the legal
custody and jurisdiction of local county facilities.
When released from custody parolees shall be returned
to the parole supervision of the department for the
duration of parole.”
Cal. Penal Code § 3056(a) (West 2011). The current version of § 3056(a),
as amended June 27, 2012, is reproduced in footnote 5.
3

Under realignment, low-level, non-serious, non-violent offenders are
not placed on state parole after their release from prison. § 3451. Instead,
the counties assume supervision responsibility for these parolees, termed
Post-Release Community Supervision parolees. In its January 2012 order,
the district court makes clear that its order does not extend to Post-Release
Community Supervision parolees, as the plaintiffs opted to not include
community supervision parolees in their renewed motion.

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On June 27, 2012, additional amendments to § 3056 went
into effect, modifying the statute to provide, inter alia, that
certain parolees awaiting a revocation hearing or serving a
revocation term “shall be under the sole legal custody and
jurisdiction of local county facilities”4 while housed in county
jails.5 After the governor signed the new version of § 3056
4

It is unlikely that the California legislature intended to place persons
under the legal custody of “facilities,” but we will construe the statute in
accordance with its apparent intent.
5
The current version of the statute (with amendments in italics)
provides:

(a) Prisoners on parole shall remain under the
supervision of the department but shall not be returned
to prison except as provided in subdivision (b) or as
provided by subdivision (c) of Section 3000.09. A
parolee awaiting a parole revocation hearing may be
housed in a county jail while awaiting revocation
proceedings. If a parolee is housed in a county jail, he
or she shall be housed in the county in which he or she
was arrested or the county in which a petition to revoke
parole has been filed or, if there is no county jail in that
county, in the housing facility with which that county
has contracted to house jail inmates. Additionally,
except as provided by subdivision (c) of Section
3000.09, upon revocation of parole, a parolee may be
housed in a county jail for a maximum of 180 days per
revocation. When housed in county facilities, parolees
shall be under the sole legal custody and jurisdiction of
local county facilities. A parolee shall remain under the
sole legal custody and jurisdiction of the local county
or local correctional administrator, even if placed in an
alternative custody program in lieu of incarceration,
including, but not limited to, work furlough and
electronic home detention. When a parolee is under the
legal custody and jurisdiction of a county facility
awaiting parole revocation proceedings or upon

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into law, defendants refused to disseminate or implement the
Plan. They adhered to this view despite the district court’s
denial of a stay pending appeal, our denial of defendants’
request for a stay pending appeal, and our subsequent denial
of defendants’ motion for reconsideration of that denial.
In response to defendants’ refusal to cooperate and
implement the Plan, the Armstrong class filed an emergency
motion to enforce the district court’s order. The district court
exercised its power to “preserve the status quo” pending the
decision of the appellate court under Federal Rule of Civil
Procedure 62(c) and granted plaintiffs’ motion on August 28,
2012 (“the August 28 orders”). The August 28 orders
essentially required defendants to disseminate and implement
the Plan. Nonetheless, defendants appealed the August 28
orders, reiterating their arguments that § 3056, as amended,
absolves them of any responsibility for Armstrong class
members during the time in which they are housed in county
jails and challenging for other reasons the district court’s
jurisdiction to issue those orders.6

revocation, he or she shall not be under the parole
supervision or jurisdiction of the department. When
released from the county facility or county alternative
custody program following a period of custody for
revocation of parole or because no violation of parole
is found, the parolee shall be returned to the parole
supervision of the department for the duration of parole.
6

We reject defendants’ argument that the district court lacked subject
matter jurisdiction to issue the August 28 orders. Although an appeal
ordinarily divests the district court of jurisdiction over the matters on
appeal, Rule 62(c) creates an exception by providing that, “[w]hile an
appeal is pending from an interlocutory order or final judgment that
grants, dissolves, or denies an injunction, the court may suspend, modify,
restore, or grant an injunction on terms for bond or other terms that secure

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Defendants argue that realignment divested them of
authority over a subpart of the Armstrong class—those
disabled parolees housed in county jails pursuant to
§ 3056—during the fairly brief and intermittent periods in
which those class members are either awaiting a parole
revocation hearing or detained due to revocation of parole.
They also assert that any court-imposed duty with respect to
those disabled parolees would interfere with California’s
prerogative to structure its internal affairs. They contend that,
as a result of the changes in state law, the court may no longer

the opposing party’s rights.” That exception applies here. The district
court acted to preserve the status quo and protect plaintiffs’ rights in direct
response to defendants’ repeated and willful non-compliance with its
earlier orders. Such action was particularly appropriate in this case, which
involves a series of enforcement orders dating back over a decade and a
continuous course of conduct marked by the development of new facts.
See Hoffman for & on Behalf of NLRB v. Beer Drivers & Salesmen’s
Local Union No. 888, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen
& Helpers of Am., 536 F.2d 1268, 1276 (9th Cir. 1976) (“[I]n the kinds of
cases where the court supervises a continuing course of conduct and where
as new facts develop additional supervisory action by the court is required,
an appeal from the supervisory order does not divest the district court of
jurisdiction to continue its supervision, even though in the course of that
supervision the court acts upon or modifies the order from which the
appeal is taken.”). Defendants’ arguments that the August 28 orders
nonetheless violated Rule 62(c) by materially altering the status of the
case on appeal, see Natural Res. Def. Council, Inc. v. Sw. Marine Inc.,
242 F.3d 1163, 1166 (9th Cir. 2001), do not succeed. The August 28
orders reduce rather than increase any imposition on defendants. The
three “substantive changes” that defendants identify were anticipated by
the injunction issued in January and as amended in April and are only
slight modifications of those orders, calibrated to changes in the relevant
facts. Most important, the status of this case on appeal remains unaltered
by the August 28 orders because the question before us remains
unchanged—whether the amendments to § 3056 wholly absolve
defendants of responsibility for the Armstrong class members housed in
county jails pursuant to that section.

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order them to assist the counties with regard to the
implementation of remedial actions, whether or not the state
has in its possession information essential to the taking of
such action. Thus, while defendants have not challenged the
fact that the housing of parolees in county jails has led to
widespread violations of Armstrong class members’ rights
under federal civil rights laws, they insist that they may no
longer be ordered to take any action whatsoever that may
serve to avert or alleviate such violations with respect to
parolees housed in county jail pursuant to § 3056.
We consolidate defendants’ appeals of the April and
August 28 orders for purposes of disposition because both
raise the same challenge to the scope of the injunction in light
of the amendments to § 3056.7
DISCUSSION
I.
Plaintiffs have extensively documented the ADA and
Rehabilitation Act violations suffered while serving parole
revocation terms or awaiting revocation hearings in county
jails. These violations are systemwide and extensive. They
involve the widespread denial of mobility-assistance devices
to persons unable to physically function without them, the
denial of hearing devices to deaf class members, and the
7

Because § 3056 was amended while this appeal was pending, the
district court did not rule on the most recent amendments to § 3056.
Ordinarily, we do not give consideration to issues not decided below.
Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986). Here, however,
one of the exceptions to our ordinary rule is met—the issue on appeal “is
purely one of law and the necessary facts are fully developed.” Id. We
therefore address it at this juncture.

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denial of accessibility devices, such as tapping canes, to blind
class members. These denials forced disabled class members
into the vulnerable position of being dependent on other
inmates to enable them to obtain basic services, such as
meals, mail, showers, and toilets.
For their part in these violations, defendants failed to
ensure that the counties knew of Armstrong class members’
disabilities and failed to assist the counties with the
development of appropriate disability-related policies. The
vast majority of these undisputed violations could have been
prevented if defendants had shared their knowledge with the
county jails as to the accommodations needed by individual
Armstrong class members. Those that could not have been
prevented might have been cured if the class members had
been afforded a grievance procedure through which they
could have made defendants and the counties aware of their
needs and their right to an accommodation.
The amendments to § 3056 do not relieve defendants of
all responsibility for the discrimination suffered by
Armstrong class members housed in county jails, past and
present, or of their obligation to assist in preventing further
violations.
Defendants were and remain an important player in the
placement of disabled parolees in county jails without regard
to the ADA compliance of those facilities. California’s
realignment of authority over certain parolees, including
those who are disabled, to its counties has not changed this
critical fact. Parole conditions are set by the state, § 3053,
and violations of parole conditions are grounds for
revocation. § 3000.08(f). The revocation process thus
functions to enforce the state imposed parole conditions.

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Although courts, rather than defendants, now conduct parole
revocation hearings, it is still defendants who initiate the
process of parole revocation. § 1203.2; § 3000.08(f).
Defendants can also impose “flash incarceration” in county
jails of one to ten days without judicial involvement.
§ 3000.08(e). In certain cases, after a revocation hearing
before the state court, defendants, rather than the court,
determine the appropriate period of incarceration.
§§ 3000(b)(4), 3000.1, 3000.08(h). When state parolees are
released from county jails at the end of their revocation term
or after a finding that they did not violate their parole
conditions, they are “returned to the parole supervision of [the
state] for the duration of parole.” § 3056. As a result,
although § 3056 alters the balance of control between the
state and its counties somewhat while parolees covered by
§ 3056 are incarcerated, both the instigation of parole
revocation and the service of any jail time for revocations
enforce state-imposed requirements and serve essentially
state purposes. Therefore, the state is not absolved by § 3056
of all its responsibility for ADA obligations as to parolees
placed in county jails to enforce their state-imposed
sentences, including their parole conditions. See Castle v.
Eurofresh, Inc., No. 11-17947, slip op. at 18–19 (9th Cir.
Sept. 24, 2013); Armstrong, 622 F.3d at 1063.
Just three years ago, addressing an earlier version of
§ 3056, we held that “defendants are responsible for
providing reasonable accommodations to the disabled
prisoners and parolees that they house in county jails.”
Armstrong, 622 F.3d at 1063. In the April order, the district
court found that defendants remained responsible for
continued violations in county jails because, inter alia, of
their “ongoing failure to train, supervise, and monitor” their
employees and their “ongoing failure to communicate with

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county jails regarding the known needs of class members.”
These actions and culpable failures to act have played a
significant role in causing the undoubted discrimination
against Armstrong class members in county jails. The district
court’s findings directly implicate defendants in the violations
of the ADA and the Rehabilitation Act, and they cannot
escape responsibility for their conduct by means of the
amendments to § 3056.8
The defendants are, by now, well aware of the history of
ADA violations and degradations visited on parolees in
county jails. In a different context, this court has held that a
state may be liable to a child in the foster-care system, even
after the child is adopted and “[i]t becomes the adoptive
parent’s responsibility to provide for the [child’s] wellbeing,” if the state “affirmatively create[s] a danger that the
adopted child would not have otherwise faced,” and the state
was aware of the danger it created. Tamas v. Dep’t of Soc. &
Health Servs., 630 F.3d 833, 843–44 (9th Cir. 2010). Here
too, the state cannot house persons for whom it is responsible
in jails where the state reasonably expects indignities and
violations of federal law will continue to occur, turn care over
8
Defendants’ reliance on the Fourth Circuit’s decision in Bacon v. City
of Richmond, 475 F.3d 633 (4th Cir. 2007), is misplaced. In Bacon, the
district court ordered the city to pay to fix accessibility barriers in public
schools despite its never having found that the city had in fact
“discriminated against [the plaintiffs],” nor having found that the city bore
any of the fault at all. Id. at 636, 639. Accordingly, the Fourth Circuit
held that the city could not be held financially responsible for the ADA
violations. Id. at 637, 639. In stark contrast, here, defendants are
responsible for the parolees’ incarceration. And the remedial order does
not require the state to fund ADA accommodations generally, but only to
facilitate the counties’ provision of disability accommodations through
services consistent with the state’s role in placing parolees in county jails
as part of a state-imposed sentence.

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to county custodians, and then disown all responsibility for
their welfare.
We must therefore reject defendants’ categorical assertion
that, under the amendments to § 3056, they may no longer be
required to assist in any way with the counties’ remedial
actions—actions intended to facilitate the accommodation of
plaintiffs’ disabilities while they are temporarily detained in
county jails. The amendments to § 3056 alter the balance of
control between the state and its counties, but do not relieve
defendants of all responsibility for the discrimination
Armstrong class members suffer. We affirm the district
court’s conclusion that defendants have a continuing
obligation to assist in alleviating the conditions that result in
ADA and Rehabilitation Act violations in county jails.
II.
The August 28 orders, which we review here, are
consistent with federal law and do not infringe on
California’s prerogative to structure its internal affairs.9
The August 28 orders require principally that defendants:
disseminate a copy of the Plan to their personnel and county
officials; track disabled parolees by means of the existing
tracking system; within 24 hours after a disabled parolee is
detained in jail, e-mail information about that individual’s
disability and accommodation needs to the appropriate jail
officer; provide stamped envelopes and grievance forms to all
parolees and out-to-court prisoners with disabilities housed in
county jails, while also encouraging parolees to use county
9

On this appeal, we review only the August 28 orders because they
supersede the April orders, which are now moot.

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grievance procedures; notify a county designee when CDCR
personnel become aware that a class member faces an
emergency situation in county jail; review all grievances
received from class members in county jails for patterns of
non-compliance; and notify county officers of any patterns of
denials of disability accommodations by written report,
following up where appropriate with another written report on
what steps might be taken to remedy the situation.
These minimal measures, consisting largely of
notifications, collection of data, and reports to county
officials, respect California’s division of authority. The
orders do not require that defendants compel the counties to
do anything; nor do the orders require any kind of punitive or
coercive action on the part of defendants if county officials
fail to comply with their state and federal duties.
Further, as a practical matter, the August 28 orders
impose only a minor and suitable burden on defendants.
Defendants are already heavily involved in the administration
of parole at the county and state levels. They concede, for
example, that they have responsibility for certain parolees
housed in county jails—life-term parolees and out-to-court
inmates. Defendants have never challenged the requirements
that they act to ensure that these parolees do not suffer
discrimination on account of their disabilities while housed in
county jails. It is not a significant burden for defendants to
apply the same tracking and grievance procedures to parolees
housed in county jails pursuant to § 3056. Moreover,
defendants’ agents and employees are working with and
inside the county facilities on a daily basis to ensure
compliance with state and federal law. By state law,
defendants must inform parolees of their rights, and therefore,
conduct in-person “notice of rights” interviews with each

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parolee who is placed in county jail on a parole hold.
§ 1203.2(b)(1) & (2). Thus, it is only a minimal additional
burden to determine whether each parolee is disabled and, if
so, to give him a grievance form.10
Accordingly, the August 28 orders are carefully tailored
to reflect the state’s division of internal authority. They do
not require defendants to interfere with the counties’
authority over parolees housed in county facilities pursuant to
§ 3056.11 Defendants remain responsible for taking certain
measures to ameliorate or avoid the admitted and ongoing
violations of plaintiffs’ rights under the ADA and
Rehabilitation Act, and those measures are fully consistent
with the counties’ exercise of their legal custody and
jurisdiction over the parolees.
III
We conclude that the August 28 orders neither conflict
with § 3056 nor require more of defendants than is
appropriate to assist in remedying the ADA and
Rehabilitation Act violations for which they bear
10

In the district court, defendants speculated that after local courts
assume responsibility for parole revocation hearings in July 2013, state
officers may no longer be participating in these in-person, notice-of-rights
meetings. Defendants do not press this point on appeal, as they instead
argue that the changes to § 3065 absolve the state of responsibility for
parolees (other than those with life sentences) while they are in county
facilities, period. Recent filings in the district court show that although
defendants’ agents are not currently serving petitions to revoke parole,
they do serve probable cause determination forms.
11

As the district court explained in the August 28 orders, the plaintiffs
sought only to enforce the provisions contained in the County Jail Plan,
not the enforcement required by the April order.

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responsibility. We therefore AFFIRM the remedial August
28 orders issued by the district court.
In No. 12-16018, the appeal is DISMISSED as moot.
In No. 12-17198, the orders of the district court are
AFFIRMED.
In both appeals, Plaintiffs-Appellees shall recover their
costs on appeal from Defendants-Appellants.

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