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

Filing

FILED OPINION (STEPHEN R. REINHARDT, A. WALLACE TASHIMA and MARSHA S. BERZON) The parties shall bear their own costs on appeal. AFFIRMED in part, VACATED and REMANDED in part. Judge: AWT Authoring, FILED AND ENTERED JUDGMENT. [9254830]

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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,

No. 12-17103
D.C. No.
4:94-cv-02307
CW

OPINION

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

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Chief District Judge, Presiding

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ARMSTRONG V. BROWN
Argued and Submitted
May 20, 2014—Pasadena, California
Filed September 26, 2014
Before: Stephen Reinhardt, A. Wallace Tashima,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Tashima

SUMMARY*

Prisoner Civil Rights
The panel affirmed in part and vacated in part the district
court’s order modifying the accountability provisions of an
earlier injunction ordering the State of California to take
specified steps to ensure that disabled inmates were provided
with needed accommodations.
The panel rejected the State’s contention that the
Modified Injunction was issued without notice and an
opportunity for it to respond. The panel further held that the
State waived its challenge to the statewide scope of the
injunction and also waived its argument that the injunction
conflicted with state law and the Collective Bargaining
Agreement between the State and prison employees. The
panel declined to exercise its discretion to consider these
arguments.
*

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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The panel held that the Modified Injunction complied
with the Prison Litigation Reform Act. The panel held that
the district court did not err in finding that a modification to
the accountability system was necessary because the State
had failed to fulfill the accountability requirements mandated
by its previous injunction to track inmates’ needs and ensure
the receipt of needed accommodations. The panel determined
that the Modified Injunction was narrowly tailored and no
broader than necessary to address the federal violations.
The panel held that the district court exceeded its
authority in appointing an expert to resolve disputes between
plaintiffs and the State because this delegation of authority
was beyond the scope of the duties that may be assigned to an
expert appointed pursuant to Federal Rule of Evidence 706.
The panel therefore vacated that portion of the Modified
Injunction and remanded to the district court with instructions
to revise the Modified Injunction in a manner consistent with
the panel’s opinion.

COUNSEL
Kamala D. Harris, Attorney General of California, Jonathan
L. Wolff, Senior Assistant Attorney General, Jay C. Russell,
Supervising Deputy Attorney General, Janelle M. Smith,
Deputy Attorney General, Jay M. Goldman (argued),
Supervising Deputy Attorney General, San Francisco,
California, for Defendants-Appellants.
Donald Specter (argued), Warren George, Rebekah Evenson,
and Penny Godbold, Prison Law Office, Berkeley, California;
Michael W. Bien, Gay C. Grunfeld, Lisa Ells, Blake
Thompson, and Michael Freedman, Rosen Bien Galvan &

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Grunfeld LLP, San Francisco, California; and Linda Kilb,
Disability Rights Education & Defense Fund, Inc., Berkeley,
California, for Plaintiffs-Appellees.

OPINION
TASHIMA, Circuit Judge:
For more than two decades, disabled prisoners have been
mired in litigation aimed at bringing California’s prison
facilities into compliance with the Americans with
Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), and
the U.S. Constitution. In this appeal, Defendants, officials
responsible for the state’s corrections system (collectively,
the “State”), challenge a 2012 order in which the district
court modified the accountability provisions of an earlier
injunction ordering the State to take specified steps to
ensure that disabled inmates were provided with needed
accommodations. For the reasons discussed below, we affirm
in part and vacate in part the district court’s order.
I.
In 1994, Plaintiffs, a class of disabled state prisoners and
parolees, filed an action against officials responsible for
California’s corrections system and parole proceedings,
seeking disability accommodations required by the ADA and
the RA.1 After a series of orders in which the district court

1

The litigation was bifurcated, with parolees and applicants for parole
proceeding on a separate track from prisoners in general. See Armstrong
v. Davis, 275 F.3d 849, 855 (9th Cir. 2001) (“Armstrong I”), abrogated on
other grounds by Johnson v. California, 543 U.S. 499, 504–05 (2005).

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and this court found the State to be in violation of these
federal statutes, the State produced a remedial plan intended
to ensure that disabled inmates had access to programs and
facilities in California’s prisons.
Armstrong v.
Schwarzenegger, 622 F.3d 1058, 1063 (9th Cir. 2010)
(“Armstrong II”). In March 2001, the district court entered a
permanent injunction directing enforcement of the remedial
plan (the “2001 Injunction”). Id.
By 2007, however, the State had failed to bring its
correctional facilities into compliance with the remedial plan
and the 2001 Injunction. Armstrong v. Schwarzenegger, No.
4:94-cv-2307 (N.D. Cal. Jan 18, 2007). Accordingly, the
district court issued another injunction (the “2007
Injunction”), which provided, in relevant part:
Within 120 days of the date of this Order,
defendants . . . shall develop a system for
holding wardens and prison medical
administrators accountable for compliance
with the Armstrong Remedial Plan and the
orders of this Court. This system shall track
the record of each institution and the conduct
of individual staff members who are not
complying with these requirements . . . .
Id.
In response to the 2007 Injunction, the State issued a
memorandum outlining tracking, investigation, and reporting
protocols designed to address the failings identified by the
This appeal concerns only those orders relating to accommodations for
prisoners.

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district court (the “2008 Memo”). The 2008 Memo provided
that allegations or reports of staff misconduct would be
investigated by a designated Hiring Authority, which would
render a decision in the matter. The Hiring Authority’s
decision would then be recorded in non-compliance logs,
which were to be provided to the district court and Plaintiffs’
counsel.
In 2012, Plaintiffs, dissatisfied with the State’s response
to the 2007 Injunction, filed a request for an order to show
cause why the State should not be held in contempt for failing
to comply with the injunction’s accountability requirements.
In the motion, Plaintiffs submitted evidence that inmates were
continuing to be denied access to needed accommodations
and that the State had failed to investigate and record
numerous alleged violations of the remedial plan. In
opposition, the State argued that the 2007 Injunction required
institutions to track only instances of actual employee noncompliance, as found by the Hiring Authority, and not
unsubstantiated allegations. The State also argued that the
2007 Injunction did not require it to investigate or log
allegations that did not identify a particular staff member
responsible for the deprivation, that did not allege that the
deprivation resulted from misconduct, or that were later
remedied.
The district court disagreed with the State’s interpretation
of its investigation and logging obligations, but declined to
hold the State in contempt. Armstrong v. Brown, No. 94-cv2307 CW, 2012 WL 3638675, at *8 (N.D. Cal. Aug. 22,
2012). The district court concluded that “the 2007 injunction
implicitly required Defendants to include in the
accountability system requirements to investigate promptly
and appropriately all allegations of violations, regardless of

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the source, and to record the outcomes of the investigations,
including whether or not the allegations were substantiated
. . . .” Id. The district court further found that the State’s
reporting practices did not comply with these requirements.
Id. However, “in an abundance of caution,” the district court
concluded that the 2007 Injunction might not have stated
these requirements clearly enough and, instead of holding the
State in contempt, issued an injunction clarifying the State’s
accountability obligations (the “Modified Injunction”). Id.
The district court modified the injunction explicitly to
mandate that the State investigate and “track all allegations
of non-compliance with the [remedial plan] and the orders of
this Court.” Id. (emphasis added). The district court also
added dispute-resolution procedures, including that Plaintiffs’
counsel may review the investigations and that an expert
witness would resolve disputes between Plaintiffs’ counsel
and the State over compliance. Id. at *11–*12.
The State appealed the Modified Injunction on several
grounds. The State contends that the Modified Injunction is
invalid because it was issued without notice and an
opportunity for the State to be heard; that it violates the
Prison Litigation Reform Act (“PLRA”); that the statewide
scope of the injunction is unjustified by the evidence; that the
district court exceeded its authority in appointing an expert to
resolve disputes between Plaintiffs and the State; and that the
Modified Injunction conflicts with various provisions of state
law and with the Collective Bargaining Agreement (“CBA”)
between the State and prison employees.
II.
We review the district court’s legal conclusions de novo,
the factual findings underlying its decision for clear error, and

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the injunction’s scope for abuse of discretion. See Scott v.
Pasadena Unified Sch. Dist., 306 F.3d 646, 653 (9th Cir.
2002).
III.
The State contends that the Modified Injunction must be
vacated because it was issued without adequate notice and
opportunity to be heard. We disagree.
Before issuing injunctive relief, the court must provide
the affected party with notice and an opportunity to be heard.
Penthouse Int’l, Ltd. v. Barnes, 792 F.2d 943, 950 (9th Cir.
1986). The district court here did so. At a June 7, 2012,
hearing on Plaintiffs’ contempt motion, the district court
provided the State with oral notice that it intended to modify
the injunction. During that hearing, it identified its specific
concerns with the State’s accountability system and explained
the particular changes it intended to make. This oral notice,
which made the State aware of the changes contemplated,
was sufficient. See Kingvision Pay-Per-View Ltd. v. Lake
Alice Bar, 168 F.3d 347, 350–51 (9th Cir. 1999) (concluding
that there was “at least some notice” when the court stated at
a hearing that it intended to modify a previous judgment);
Penthouse, 792 F.2d at 950 (holding that, although the district
court did not provide the defendant with formal notice of a
possible injunction, injunctive relief was proper because the
defendant was aware of the potential injunction based on
various filings by the parties and arguments at trial).
The district court also gave the State an adequate
opportunity to be heard. It permitted the State to respond
orally at the hearing and to submit a further written response.
What’s more, the State had more than a month to prepare its

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written submission. In its order modifying the injunction, the
court acknowledged receipt of the parties’ submissions and
stated that it had considered the arguments made therein, as
well as those made at the hearing. The State thus had “[t]he
opportunity to present reasons . . . why [the] proposed action
should not be taken.” See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546 (1985). We, therefore,
conclude that the State had an adequate opportunity to
respond. See id.
The State’s arguments in support of its contention that it
did not receive notice and an opportunity to be heard are
unpersuasive. The State contends first that the district court’s
modification to the injunction was unfair because it was made
in response to a request by Plaintiffs to hold the State in
contempt, which required the State to make a different
showing than a motion to modify the injunction would have.
We find no merit to this argument. Any unfairness that might
have resulted from modifying the 2007 Injunction in response
to the motion for contempt was cured when the court
informed the State that it was instead considering a
modification and gave the State an opportunity to respond in
writing to the proposed changes. Moreover, a district court
may sua sponte order or modify injunctive relief. See, e.g.,
Clement v. Cal. Dep’t of Corrs., 364 F.3d 1148, 1150 (9th
Cir. 2004); see also Brown v. Plata, 131 S. Ct. 1910, 1946
(2011) (recognizing the district court’s inherent power to
modify injunctive relief). The district court here was thus not
limited to ordering the relief requested by Plaintiffs and acted
well within its authority in modifying its previous order.
The State next contends that it had no meaningful
opportunity to respond because the Modified Injunction was
a foregone conclusion after the June 7, 2012, hearing and its

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terms were not open for debate. This contention, however, is
directly contrary to the district court’s express statement at
the hearing that it would give the State an opportunity to
weigh in and its statement in the order modifying the
injunction that it had considered the State’s arguments. The
State’s contention, that despite these clear pronouncements,
the district court ignored the State’s arguments is purely
speculative and warrants no further consideration. We,
therefore, reject the State’s contention that the injunction was
issued without notice and an opportunity for it to respond.
IV.
Plaintiffs assert that the State waived the arguments that
the statewide scope of the Modified Injunction is unsupported
by the evidence and that the Modified Injunction conflicts
with various state laws and the CBA. We agree.
“‘Although no bright line rule exists to determine whether
a matter [h]as been properly raised below, an issue will
generally be deemed waived on appeal if the argument was
not raised sufficiently for the trial court to rule on it.’” Ruiz
v. Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir.
2012) (quoting In re Mercury Interactive Corp. Sec. Litig.,
618 F.3d 998, 992 (9th Cir. 2010) (alteration in original)).
We have no trouble concluding that the State waived the
argument that the injunction is invalid because it purportedly
conflicts with state law and the CBA. The State made no
mention of these alleged conflicts before the district court.
See id.; see also Komatsu, Ltd. v. States S.S. Co., 674 F.2d
806, 812 (9th Cir. 1982) (deeming an issue waived when the
appellant had “relied . . . exclusively” on other arguments
below).

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Whether the State waived its challenge to the statewide
scope of the injunction is a closer question. We conclude,
however, that the State waived this argument as well. In its
submission to the district court, the State made some
contentions that are arguably relevant to its current challenge
to the scope of the injunction. It argued, for example, that
“there was neither a factual nor legal basis for the proposed
expansion.” It did not, however, make any of the specific
scope arguments that it raises on appeal; nor did it provide
any detail that would have permitted the district court to
evaluate its claim that systemwide changes were unwarranted.
The only arguments it made were directed at purported
conflicts with the PLRA, a separate question. We, therefore,
conclude that the State did not preserve its challenge to the
statewide scope of the injunction. See Komatsu, 674 F.2d at
812.
Although “the rule of waiver is a discretionary one,” see
Ruiz, 667 F.3d at 1322 (internal quotation marks and citation
omitted), we find no basis on which to exercise our discretion
in the State’s favor in this case. We have stated that we may
exercise our discretion to consider a waived issue under three
circumstances:
(1) in the exceptional case in which review is
necessary to prevent a miscarriage of justice
or to preserve the integrity of the judicial
process, (2) when a new issue arises while
appeal is pending because of a change in the
law, and, (3) when the issue presented is
purely one of law and either does not depend
on the factual record developed below, or the
pertinent record has been fully developed.

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Id. (internal quotation marks and citation omitted). The first
and second circumstances have no application here: An
exception is not necessary to prevent a miscarriage of justice
or preserve the integrity of the judicial process, and there was
no relevant change of law while the State’s appeal was
pending. See id. The third circumstance might permit us to
consider whether the injunction conflicts with state law and
the CBA, because these are purely legal questions, but no
exception would permit us to consider the mixed factual and
legal question of whether the evidence was sufficient to
support the scope of the injunction. See id.
But even if we have discretion to review these arguments
notwithstanding the State’s waiver, we decline to do so. The
State has no excuse for its failure to raise these arguments
below. Unlike cases in which we have exercised our
discretion to consider arguments that were not raised below,
the State had ample opportunity to craft its response to the
district court. See, e.g., United States v. Kaczynski, 239 F.3d
1108, 1113 (9th Cir. 2001) (considering on appeal of a habeas
petition the government’s argument that the petitioner had
procedurally defaulted because the district court had
summarily denied the petition, so that the government had no
opportunity to argue default). And there is no special feature
of this case that persuades us that we should consider the
arguments now raised despite the State’s waiver. Cf. In re
Neuton, 922 F.2d 1379, 1384 (9th Cir. 1990) (holding that a
pro se litigant did not waive an argument that he neglected to
develop fully before the district court because he had been
“led astray by the shifting legal theories” that had governed
the case).
In sum, we conclude that the State waived its argument
that the injunction conflicts with state law and the CBA and

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that the evidence was insufficient to warrant systemwide
relief, and we decline to exercise our discretion to consider
those arguments.
V.
Two of the State’s challenges to the Modified Injunction
remain. First, the State contends that the Modified Injunction
is invalid in its entirety because it violates the PLRA.
Second, the State contends that the section of the Modified
Injunction appointing the expert witness to resolve disputes
between the parties is invalid because the district court
exceeded its authority in ordering the expert witness to act in
this capacity. We hold that the Modified Injunction does not
violate the PLRA. We do agree with the State, however, that
the section setting forth the expert witness’ authority and
duties is invalid.
A.
The Modified Injunction mandates procedures for
investigating and recording alleged violations of inmates’
federal rights and the court’s orders, enforcing disciplinary
action where needed, and resolving disputes regarding these
matters. See Armstrong, 2012 WL 3638675, at *10–*12. As
to tracking, the Modified Injunction mandates that the State
track any allegations that any member of the Plaintiff class
did not receive access to services, programs, activities,
accommodations, or assistive devices required by the
remedial plan, the ADA, the RA, and other court orders. Id.
at *10. Every allegation must be tracked, regardless of
whether the alleged non-compliance was unintentional,
unavoidable, done without malice, done by an unidentified
actor, or later remedied. Id. The log must list the prison at

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which the incident occurred, the prisoner and employee(s)
involved, the date of the allegation, the date the investigation
was initiated and completed, the identity of the investigator,
the result of the investigation, the number of prior allegations
against the employee(s) involved, and the action taken, if any.
Id. The district court further ordered that the logs must be
produced to Plaintiffs’ counsel monthly. Id. The mandate
that every allegation be logged directly responds to the
State’s practice of logging only certain reports. Id. at *8.
The district court also set out specific requirements
relating to the State’s investigation of alleged deprivations.
Id. at *11. It mandated that the State must investigate all
allegations of employee non-compliance, commence the
investigation within ten business days of notice of the
allegation, and produce a written report on the investigation.
Id. Like the reporting requirements, this mandate directly
responds to the State’s practice of only investigating some
allegations and the long delays in the commencement of those
investigations that did occur. Id. at *8–*9. The injunction
grants Plaintiffs’ counsel access to the written reports
produced as a result of these investigations and all documents
used in making the reports, with employees’ names replaced
with unique identifiers to protect their privacy. Id. at *11.
The injunction also permits Plaintiffs’ counsel to interview
individuals who produced information relied upon in an
investigation. Id.
The Modified Injunction further provides for corrective
action and discipline. It mandates that when an investigation
reveals employee non-compliance, the State must comply
with the procedures set out in the 2008 Memo and the prison
systems’ operations manual, and that all disciplinary

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determinations must be produced to Plaintiffs’ counsel, upon
request. Id.
Finally, the injunction delegates to the court’s expert
witness, appointed pursuant to Federal Rule of Evidence 706,
the power to resolve disputes between Plaintiffs’ counsel and
the State regarding the above matters. Id. at *11–*12.
Section D specifically deals with the expert witness’ duties.
That section provides first that the parties shall initially
attempt to resolve any dispute through negotiation. Id. at
*11. It then provides specific procedures for resolving
disputes if negotiation is unsuccessful. Section D.2. provides:
If the parties are unable to resolve the dispute
informally, Plaintiffs’ counsel may request
that the Court’s expert review and resolve the
matter. Depending on the nature of the
dispute, the Court’s expert shall resolve
disputes about the production of information,
determine whether non-compliance occurred
or, if it did, whether corrective action should
be initiated. . . . Administrative decisions
made by the Court’s expert pursuant to this
section shall be final as between Plaintiffs and
Defendants.
Id. at *11. Section D.3. provides that the expert will exercise
similar authority with regard to whether certain incidents set
forth in the pleadings constitute non-compliance. Id. at *12.
We conclude that the Modified Injunction complies with
the PLRA. The PLRA provides, in relevant part that

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[p]rospective relief in any civil action with
respect to prison conditions shall extend no
further than necessary to correct the violation
of the Federal right of a particular plaintiff or
plaintiffs. The court shall not grant or approve
any prospective relief unless the court finds
that such relief is narrowly drawn, extends no
further than necessary to correct the violation
of the Federal right, and is the least intrusive
means necessary to correct the violation of the
Federal right.

18 U.S.C. § 3626(a)(1). Under the PLRA, injunctive relief
must “heel[] close to the identified violation.” Armstrong I,
275 F.3d at 872 (internal quotation marks omitted). The court
may provide guidance and set clear objectives, but it may not
“attempt to ‘micro manage’” prison administration, id. at 873,
or order relief that would “require for its enforcement the
continuous supervision by the federal court over the conduct
of [state officers],” id. at 872 (quoting O’Shea v. Littleton,
414 U.S. 488, 501 (1974) (alteration in original)). The
overarching inquiry is “whether the same vindication of
federal rights could have been achieved with less involvement
by the court in directing the details of defendants’
operations.” Armstrong II, 622 F.3d at 1071.
The district court made the findings mandated by the
PLRA, Armstrong, 2012 WL 3638675, at *8, and those
findings were not erroneous.2 See 18 U.S.C. § 3626(a)(1).
First, the Modified Injunction was necessary to correct the

2

While we conclude that the Modified Injunction complies in full with
the PLRA, we nonetheless vacate Section D of the Modified Injunction on
other grounds. See Part V.B., infra.

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violations of Plaintiffs’ federal rights. The district court’s
finding on this point was supported by the facts before it
when it issued the 2007 Injunction and additional evidence
submitted in support of the contempt motion. In issuing the
2007 Injunction, the district court found a litany of ADA and
RA violations, which are not (and cannot be) contested in this
proceeding. Armstrong v. Schwarzenegger, No. 4:94-cv-2307
(N.D. Cal. Jan 18, 2007). It further found that an effective
accountability and tracking system was necessary to prevent
continued rights’ violations because the failure to track
disabled inmates’ grievances and thus to respond to
accommodation requests underlay the violations of their
federal rights. Id. This conclusion was sound and consistent
with other courts’ holdings. See, e.g., Armstrong II, 622 F.3d
at 1073–74 (noting the importance of tracking in ensuring
ADA compliance); Morales Feliciano v. Rullan, 378 F.3d 42,
55–56 (1st Cir. 2004) (noting the importance of
accountability in ensuring the long-term success of the health
care system in Puerto Rico’s prisons); see also Coleman v.
Schwarzenegger, 922 F. Supp. 2d 882, 896 (N.D. Cal. & E.D.
Cal. 2009) (three-judge panel) (affirming the importance of
accountability in preventing degrading and humiliating prison
conditions from becoming routine and permissible).
The evidence presented in the contempt motion
demonstrated that by 2012 – a full five years after the order
to track and record compliance with the remedial plan and the
court’s orders – there had been no meaningful improvement
to the State’s tracking and accountability system. The
evidence before the district court in support of Plaintiffs’
contempt motion demonstrated that the tracking and
accountability system developed by the State had failed and
that, as a result, class members still experienced delays in
having their grievances processed and redressed (if they were

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processed and redressed at all). The record shows numerous
instances at multiple institutions in which prisoners had
reported that they were deprived of a disability
accommodation, but no incident was logged. This systemic
failure to record alleged violations supports the district
court’s finding that the State’s accountability system was not
functioning as intended, i.e., to hold prison administrators
accountable and ensure that disabled inmates’ rights were
protected.3
While the State eventually investigated the allegations
identified by Plaintiffs in their contempt motion and
explained its reasons for failing to record them, these
investigations were commenced only after Plaintiffs filed
their motion to hold the State in contempt for failing to
investigate these precise alleged violations. For that reason,
these belated investigations do not persuade us that the State
was fulfilling its accountability obligations. In fact, the
timing of these investigations persuades us of just the
opposite: that the State has continued to shirk its duty to
investigate and track alleged violations of the remedial plan,
the court’s orders, and federal statutory law.
Based on the evidence before it, we hold that the district
court did not err in concluding that the State had failed to

3

The district court was clear that the question before it did not involve
whether the State had, in fact, failed to provide appropriate
accommodations to inmates with disabilities. Armstrong, 2012 WL
3638675, at *8. The district court’s only finding – and the only one we
affirm today – is that the evidence showed that the State’s accountability
system had failed and that modifications to the injunction were required.
We, like the district court, do not comment as to whether the incidents
identified by Plaintiffs’ counsel in their contempt motion constitute
violations of the remedial plan, the RA, the ADA, or court orders.

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fulfill the accountability requirements mandated by its
previous injunction. And because the accountability system
was not effectively tracking inmates’ needs and ensuring the
receipt of needed accommodations, the district court did not
err in finding that a modification to the accountability system
was necessary. See Plata, 131 S. Ct. at 1946; Morales
Feliciano, 378 F.3d at 55 (noting that the district court was
within its discretion to order additional relief when its
previous orders had failed to protect inmates’ rights).
Our conclusion that the district court did not err in finding
a modification to the injunction necessary does not end our
inquiry. We must also consider whether the modifications it
ordered complied with the PLRA’s requirements that
injunctive relief be narrowly drawn and no broader or more
intrusive than necessary to correct the violations of federal
rights. See 18 U.S.C. 3626(a)(1). We answer that question in
the affirmative.
The Modified Injunction was narrowly tailored and no
broader than necessary to address the federal violations. The
changes ordered by the district court specifically tracked the
ways in which the State’s prior accountability system had
failed: The district court found that the system had failed
because the State had not investigated and logged all
allegations and so ordered the district court to investigate and
log all allegations. The district court further found that this
deficiency existed across California’s prison institutions, and
accordingly ordered relief that would apply to all of the
State’s facilities. The modification thus matched the
deficiency in both scope and kind. We, therefore, conclude
that the Modified Injunction was narrowly tailored and not
overbroad. See Clement, 364 F.3d at 1153 (concluding an
injunction that prohibited the prison from banning materials

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because their source was the internet was narrowly tailored
and no broader than necessary to remedy a policy that was
unconstitutional for the reason that it banned materials based
solely on their source).
We also conclude that the Modified Injunction was no
more intrusive than necessary to address the federal
violations. The changes relate only to accountability and
tracking. The Modified Injunction says nothing about how
the State should implement compliance with the remedial
plan or provide disability accommodations to prisoners; it
provides no mandates for how the prison should run its
facilities, house prisoners, or conduct its daily administration.
In this order, as in previous orders, “the thorough and
extremely patient district judge did not attempt to ‘micro
manage’” the prison’s administration, Armstrong I, 275 F.3d
at 872, or involve herself closely or extensively in directing
the prison’s operations, Armstrong II, 622 F.3d at 1071.
We recognize that the district court gave the State several
specific instructions on how to implement its accountability
system. While this might in some cases be a cause for
concern, it was appropriate here. A court may, as the district
court did here, provide specific instructions to the State
without running afoul of the PLRA. See Armstrong I,
275 F.3d at 858–59 & n.15 (affirming an injunction that
included various specific instructions to the State, such as
requiring it to hire an ADA coordinator and provide certain
accommodations at parole hearings, among other mandates).
While the injunction here might leave the State less discretion
than injunctions typically approved in the PLRA context, we
conclude that the level of intrusiveness is acceptable based on
the history and circumstances of the case.

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Disabled inmates have been litigating to ensure that the
State provides them with needed accommodation for over two
decades – and yet the State still has a long, long way to go
before it meets its obligations to these prisoners. The
ongoing, intractable nature of this litigation affords the
district court considerable discretion in fashioning relief. See
Morales Feliciano, 378 F.3d at 54–55; see also Plata, 131 S.
Ct. at 1946 (noting that once the district court invokes its
equitable powers, its authority to modify a decree of
injunctive relief is particularly broad and flexible). Relief
that might have raised concerns about breadth and
intrusiveness in the first instance is acceptable in this context,
because the district court “has attempted narrower, less
intrusive alternatives – and those alternatives have failed
. . . .” See Morales Feliciano, 378 F.3d at 55.
The First Circuit confronted a similar situation in
litigation involving Puerto Rico’s prison system, where
constitutional violations pertaining to the delivery of health
care were “substantial in both scope and degree” and had
“defied correction for more than two decades.” Id. at 54. We
face the same problem here. As we have previously noted,
litigation in this matter has been ongoing for decades and the
State has “resisted complying with [its] federal obligations at
every turn.” Armstrong v. Brown, 732 F.3d 955, 957 (9th Cir.
2013) (“Armstrong III”). Through a series of narrowlydrawn, carefully-crafted, and thorough orders, the district
judge here, like the district judge overseeing the Puerto Rico
prison litigation, “has tried more conventional methods, but
found them wanting.” See Morales Feliciano, 378 F.3d at 54.
“This record of abject failure matters in the narrowness-needintrusiveness inquiry.” Id. at 55. Because the district court
has previously tried to correct the deficiencies in California’s
prisons’ compliance with the ADA and RA through less

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intrusive means, and those attempts have failed, relief
prescribing more specific mechanisms of compliance is
appropriate. See id. at 54–56; see also Plata, 131 S. Ct. at
1946.
As noted above, the core PLRA inquiry is “whether the
same vindication of federal rights could have been achieved
with less involvement by the court in directing the details of
defendants’ operations.” Armstrong II, 622 F.3d at 1071.
The State, through its conduct over the past twenty years, has
proven that the same vindication of federal rights cannot be
achieved with less involvement by the district court. The
State has failed to suggest – let alone implement – any viable
means to ensure accountability and protect the Plaintiff class
that is narrower or less intrusive than the Modified
Injunction, despite ample time and opportunity to do so.
Given that the State has failed to present the district court or
this court with “any realistic alternative” to the Modified
Injunction, we find its protestations that such alternatives
exist to be hollow. Plata, 131 S. Ct. at 1941; see also
Armstrong II, 622 F.3d at 1071 (noting that the State did “not
suggest any means to protect class members’ rights under the
ADA that [were] more narrow or less intrusive than those
ordered by the district court”). Based on these circumstances,
we conclude that the Modified Injunction complies with the
PLRA. See 18 U.S.C. § 3626(a)(1); Armstrong II, 622 F.3d
at 1071.
B.
While we find no error with regard to the PLRA, we
cannot approve Section D of the Modified Injunction as it is
currently drafted. As noted above, Section D provides for
dispute-resolution procedures in the event that Plaintiffs’

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counsel contests the State’s decision on the results of an
investigation into alleged non-compliance, the production of
information, or a decision on corrective action. Armstrong,
2012 WL 3638675, at *11–*12. Section D.1 provides that, in
the event of a dispute, Plaintiffs’ counsel shall provide notice
to the State, to which the State must respond within 10
business days, and the parties shall attempt to resolve the
matter through negotiation. Id. at *11. We find no error in
this provision.
Sections D.2 and D.3, however, present a more difficult
question. As described above, Section D.2 provides that the
expert witness shall resolve disputes between Plaintiffs’
counsel and the State about whether non-compliance has
occurred, the production of information, and the institution of
corrective action. Id. Section D.3 gives the expert witness
similar authority to decide whether certain incidents alleged
in the pleadings constitute non-compliance with the remedial
plan. Id. at *12. The authority delegated in Sections D.2 and
D.3 permits the expert to make findings that go to the very
heart of this litigation – compliance with the remedial plan –
and his authority includes responsibility for making findings
of fact and conclusions of law, as necessary to assess noncompliance. Sections D.2 and D.3 make these decisions by
the expert “final,” id. at *11–*12, and provide no mechanism
for review by the district court.
We conclude this delegation of authority to the Rule 706
expert is impermissible. A Rule 706 expert typically acts as
an advisor to the court on complex scientific, medical, or
technical matters. See, e.g., San Luis & Delta-Mendota
Water Auth. v. Jewell, 747 F.3d 581, 603 (9th Cir. 2014);
FTC v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1209
(9th Cir. 2004). The dispute resolution authority granted to

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the expert in this case is beyond the scope of the duties that
may be assigned to a Rule 706 expert. We have never
approved a Rule 706 expert to act in an adjudicative
capacity with such finality as prescribed in Sections D.2
and D.3 of the Modified Injunction. While we have approved
the appointment of non-judicial officers to make
recommendations and resolve disputes ancillary to complex
litigation, those appointments specifically limited the expert
to making recommendations subject to review by the district
court. See, e.g., A&M Records, Inc. v. Napster, Inc., 284 F.3d
1091, 1097 (9th Cir. 2002) (approving the appointment of a
technical advisor to assist the district court in monitoring
compliance); Stone v. City & Cnty. of S.F., 968 F.2d 850,
852, 863 (9th Cir. 1992) (approving the appointment of a
special master to investigate, report, and make
recommendations to the city and the court).4
Our decision in Napster is particularly instructive. There,
we approved the district court’s use of a technical advisor
after specifically noting that “[a]t no time did the technical

4

Our sister circuits have similarly approved the appointment of nonjudicial officers to act in advisory capacities only. See, e.g., SEC v.
Elliott, 953 F.2d 1560, 1577 (11th Cir. 1992) (noting that the courtappointed receiver was an officer of the court whose legal and factual
findings must be approved by the district court); Reilly v. United States,
863 F.2d 149, 157–58 (1st Cir. 1988) (finding no error in the district
court’s use of a technical advisor to instruct the judge on complex issues,
but noting that the delegation would have been impermissible if the
advisor made independent findings on facts outside the record); Ruiz v.
Estelle, 679 F.2d 1115, 1159–63, amended in part, vacated in part on
other grounds, 688 F.2d 266 (5th Cir. 1982) (noting that it was
permissible for the district court to appoint a special master to assist in the
implementation of its orders by holding hearings on disputed matters and
making recommendations to the district court, so long as the special
master’s findings were not accorded the presumption of correctness).

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advisor displace the district court’s judicial role” and “[t]he
technical advisor never unilaterally issued findings of fact or
conclusions of law regarding Napster’s compliance.”
Napster, 284 F.3d at 1097. Here, Sections D.2 and D.3 do
precisely what we suggested in Napster was impermissible:
delegate to the Rule 706 expert the power unilaterally and
conclusively to make findings of fact and conclusions of law
regarding the State’s compliance with the remedial plan and
its federal obligations.
While the district court might have intended the expert’s
decision to be subject to review or appeal, that intention is not
reflected in its order. As currently drafted, the injunction
does not provide any mechanism for review of the expert’s
decisions by the district court and so risks permitting the
expert to “displace the district court’s judicial role.” Id. We
therefore cannot affirm this part of the Modified Injunction.
See id.; see also Kimberly v. Arms, 129 U.S. 512, 524 (1889)
(“[The court] cannot, of its own motion, or upon the request
of one party, abdicate its duty to determine by its own
judgment the controversy presented, and devolve that duty
upon any of its officers.”).
We therefore must vacate Sections D.2. and D.3 of the
Modified Injunction and remand the matter to the district
court to remedy the errors we have identified. We are
confident that the able district judge can craft an appropriate
procedure under which a party dissatisfied with the expert’s
recommendations can obtain district court review of that
recommendation. For example, the district court may permit
the expert to function within the limits suggested by Napster,
by providing that the expert may present recommendations,
but may not issue findings of fact or conclusions of law. See
284 F.3d at 1097. The district court could also employ a

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procedure similar to the one provided for in the Magistrates
Act, for review of a report and recommendation by a
magistrate judge. See 28 U.S. C. § 636. We also note that
the PLRA itself provides for the appointment of a special
master “[i]n any civil action in a Federal court with respect to
prison conditions . . . .” 18 U.S.C. § 3626(f). Finally, we
observe that Rule 706 does not even necessarily apply to nontestifying experts, although district courts retain inherent
authority to appoint technical advisors in appropriate cases.
See Ass’n of Mexican-American Educators v. California,
231 F.3d 572, 590–91 (9th Cir. 2000) (en banc). What is
important is that “[t]he role of a technical advisor . . . be
carefully defined and limited to reduce the risk that the
advisor will usurp the role of the court as factfinder . . . .” Id.
at 612 (Tashima, J., dissenting).
We do not mean to circumscribe the district court’s
discretion by the listing of these examples. What the district
court must do on remand is to revise Sections D.2 and D.3 of
the Modified Injunction to comply with our precedent.
VI.
For the reasons set forth above, we affirm all portions of
the Modified Injunction, except Sections D.2 and D.3. We
vacate Sections D.2 and D.3 and remand to the district court
with instructions to revise the Modified Injunction in a
manner consistent with this Opinion. The parties shall bear
their own costs on appeal.
AFFIRMED in part, VACATED and REMANDED in
part.

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