Valdivia, et al v. Schwarzenegger, et al

Filing 1859

ORDER signed by Judge Lawrence K. Karlton on 9/10/2013 GRANTING in part and DENYING in part plaintiffs' 1849 Motion for Reconsideration of 7/3/2013 1845 Order. (Marciel, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY VALDIVIA, ALFRED YANCY,
and HOSSIE WELCH, on their own
behalf and on behalf of the class
of all persons similarly situated,
NO. CIV. S-94-671 LKK/GGH

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Plaintiffs,
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v.

O R D E R

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EDMUND G. BROWN, JR., Governor of
the State of California, et al.,
Defendants.
/

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Pending

before

the

court

is

plaintiffs’

motion

for

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reconsideration of the court’s July 2, 2013 order finding this case

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moot. (Plaintiffs’ Motion for Reconsideration (“Motion”), ECF

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No. 1849; Order, July 2, 2013 (“July 2 Order”), ECF No. 1845.) The

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court previously took this motion under submission. Plaintiffs’

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arguments are considered in turn; for the reasons set forth below,

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their motion will be granted in part and denied in part.

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I. STANDARD

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Plaintiffs seek reconsideration under Federal Rule of Civil
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Procedure 60(b), subsections (1) and (6).

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Rule 60(b)(1) allows for relief from an order for “mistake,

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inadvertence, surprise, or excusable neglect.” Plaintiffs seek

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reconsideration on the basis of mistake. Errors of law may be

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corrected by the district court under this subsection. Liberty

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Mutual Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982).

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Rule 60(b)(6) allows for relief from an order for “any other

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reason that justifies relief.” Extraordinary circumstances are

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required to justify relief under this portion of the rule. See

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Ackermann

v.

U.S.,

340

U.S.

193,

202

(1950)

(“Neither

the

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circumstances of petitioner nor his excuse for not appealing is so

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extraordinary as to bring him within . . . Rule 60(b)(6).”); see

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also 11 Charles Alan Wright & Arthur R. Miller, Federal Practice

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and Procedure: Civil § 2857 (3d ed. 2013) (“‘[E]xtraordinary

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circumstances’ should only be required under catchall clause (6)

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of the rule.”).

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II. ANALYSIS

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A. Alleged error in finding mootness

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Plaintiffs’ central argument is that this court erroneously

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“re-defined” the parole revocation process as beginning only when

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a petition for parole revocation is filed with the state court,

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rather than when a parolee is detained for suspected parole

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violations. Plaintiffs argue that, as a matter of law, “the parole

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revocation process begins, for the purposes of constitutional

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analysis, when a parolee is arrested and incarcerated for allegedly

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violating parole.” (Motion 6.) In support of their argument,
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plaintiffs make much of the following sentence in the July 2 Order:

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[The
California
Department
of
Corrections
and
Rehabilitation’s (“CDCR”) Division of Adult Parole
Operations (“DAPO”)] initiates the parole revocation
process by filing a petition with the state court, which
must include “a written report that contains additional
information regarding the petition, including the
relevant
terms
and
conditions
of
parole,
the
circumstances of the alleged underlying violation, the
history and background of the parolee, and any
recommendations.” (Order 13.)

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Plaintiffs assert that, “[i]n light of DAPO’s continuing (even

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expanded) role in parole revocations, it was a mistake for this

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Court to find that ‘parole revocation process’ begins only after

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DAPO files a petition with the state courts.” (Motion 7.)

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To be clear, this court has never found, nor is it of the

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view, that the parole revocation process begins only when a parole

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revocation petition is filed with the state court. California Penal

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Code section 3000.08(f) provides, in pertinent part, that “[i]f the

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supervising parole agency has determined, following application of

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its assessment processes, that intermediate sanctions . . . are not

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appropriate, the supervising parole agency shall . . . petition

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[the appropriate state court] to revoke parole” (emphasis added).

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It was in reference to the text of this provision that the court

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used the phrase “initiates the parole revocation process” in the

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sentence, quoted above, that is relied upon by plaintiffs as

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evidence of this court’s purported error.

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It is of course well-settled that, as a matter of law, an

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individual is constitutionally entitled to due process protections

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from the moment that he or she is arrested on a suspected parole
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violation. See Morrissey v. Brewer, 408 U.S. 471, 485 (1972) (“In

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analyzing what [process] is due, we see two important stages in the

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typical process of parole revocation . . . The first stage occurs

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when the parolee is arrested and detained . . . The second occurs

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when parole is formally revoked.”).

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But, as discussed at length in the July 2 Order, California

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has, in enacting Realignment, created a new system for handling

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both stages of the parole revocation process. Any Constitutional

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infirmities must be addressed by considering the new system’s

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functioning as an organic whole. The fact that the Valdivia

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defendants play significant roles in the post-Realignment system

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is insufficient to justify the court’s continued exercise of

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jurisdiction over the defendants, as plaintiffs desire.

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Plaintiffs point to the fact that, under section 3000.08, “a

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parolee may waive, in writing, his or her right to counsel, admit

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the parole violation, waive a court hearing, and accept [a]

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proposed parole modification or revocation” prior to the filing of

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a revocation petition with the state court. (Motion 7.) Plaintiffs

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contend that the ability “to present ‘screening offers’ and to take

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uncontested waivers of rights prior to the filing of any petition

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with the state court . . . was a central feature of the system that

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existed prior to the Valdivia Injunction.” (Motion 7.) That may

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very well be true. Nevertheless, California must be given an

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opportunity to operate its “Realigned” parole revocation system

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without premature interference by federal courts. If, in practice,

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it turns out that CDCR, the state courts, and parolees’ defense
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attorneys prove incapable of safeguarding the due process rights

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of suspected parole violators at any stage in this new system, then

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the system may again be challenged as unconstitutional. But to

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implement the remedy proposed by plaintiffs — the establishment of

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an eight-month-long “transition period,” in which DAPO is required

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to provide parolees with notices of charges and rights within 3

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days, and to file violation petitions with state courts within 7

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days, and in which monitoring by the parties and the Special Master

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will be ongoing for at least the first six months

— is to presume

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ex ante that the “Realigned” parole revocation system will fail to

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provide parolees with due process safeguards absent significant

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judicial

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presumption. Plaintiffs’ motion on this ground is therefore denied.

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B.

intervention.

The

court

declines

to

make

such

a

Persons arrested before July 1, 2013 for alleged parole

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violations

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Plaintiffs argue that the injunctive relief previously ordered

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in this matter (“Valdivia Injunction”) ought to remain in effect

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for those alleged parole violators who were arrested prior to July

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1,

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adjudicated by the Board of Parole Hearings (“BPH”). Plaintiffs are

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also correct that defendants’s opposition includes “no evidence

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that the hearings scheduled for the days up to and including July

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parole

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happened, and no evidence concerning the number of pre-July 1

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arrestees still in custody but unrevoked.” (Reply 8.) The court

2013,

but

whose

revocation

revocation

hearing

was

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hearings

scheduled

have

to

not

occur]

yet

been

actually

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agrees that Valdivia is not moot as to these individuals, and will

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modify its July 2 Order accordingly.

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However, the court declines to go as far as to order that the

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Valdivia Injunction be maintained “until the last of the pre-July

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1, 2013 [sic] has been released from any custody imposed as a

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result

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charges.” (Motion 18.) Plaintiffs’ counsel argues that their

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ethical obligation to parolees in custody “persist until every

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parolee is released at the end of his or her revocation term.”

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(Reply 9.) According to plaintiffs’ counsel, they have “notified

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Defendants of overdetention problems in County Jails in recent

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weeks and months. Dismissing the case now would remove that avenue

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of recourse for the thousands of parolees now in custody, serving

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revocation terms which may last beyond the end of 2013.” (Id.) In

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support,

plaintiffs

cite

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Master’s

Thirteenth

Report,

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instances in which parolees were erroneously detained beyond their

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scheduled release dates in Alameda, Contra Costa, Fresno, Los

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Angeles, and San Mateo counties. (Id.)

of

the

parolees

arrested

to

pre-July

their
in

1

objections

which

they

parole

to

violation

the

Special

detailed

several

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The court is nevertheless unconvinced that the Valdivia

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Injunction must be maintained until the last of the parolees

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arrested before July 1, 2013 is released from custody, rather than

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until their alleged parole violations have been disposed of. As

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defendants argue, “Plaintiffs also fail to explain which provisions

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of the Injunction would even apply to parolees serving revocation

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terms as a result of a pre-July 1, 2013 arrest. Indeed, none of the
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provisions apply. All charges against these parolees have been

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adjudicated.” (Opposition 7.) The principal concern articulated by

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plaintiffs in their objections to the Special Master’s Thirteenth

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Report are failures of information systems and of interagency

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communications. It is unclear to the court that maintaining the

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Injunction in place would remedy these failures, rather than having

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the opposite effect: increasing errors as the state1 is forced to

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keep Valdivia-mandated procedures in place for one group of inmates

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(parolees

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detained

prior

to

July

1)

while

implementing

new

procedures for those parolees detained after July 1.

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Accordingly, the Valdivia Injunction need only remain in

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effect until the cases of all persons arrested prior to July 1,

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2013 for suspected parole violations are disposed of, whether

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through revocation hearings, release, or other disposition; it need

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not remain in effect until all of these persons have been released

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from custody.

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C. Notice to Valdivia class members

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Plaintiffs next raise the issue of notice of termination of

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this action to the Valdivia class members, writing:
Plaintiffs have come to rely on the Valdivia Injunction
as a safeguard against overreaching by the State, and to
expect that they can report due process violations to
counsel, and obtain some measure of relief (e.g.[,]
through the Paragraph 27 process for reporting
individual violations of the Injunction). Dismissing the
case without notice to the Plaintiff class — who will
otherwise experience no change in their everyday
circumstances to alert them that the case has ended —

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Not to mention the individual California counties, which are
not parties to this lawsuit.
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would foil those expectations and be ill-suited to the
legacy of this case. Without notice that Valdivia has
been terminated, individual class members risk losing
their claims for individual due process violations when
the limitations period on those claims expire. [citation
to plaintiff’s motion] At present, class members rely on
Valdivia to vindicate their due process rights.
[citation to plaintiff’s motion] Defendants argue that
this risk is insignificant, because the superior courts
can hear individual due process claims, [citation to
defendant’s opposition] But again, the vast majority of
parolees will never encounter the superior courts under
Realignment — their cases will be resolved during the
pre-petition stages of the parole revocation process —
with no court involvement. And Defendants’ analogy
ignores the fact that the Valdivia Injunction’s remedies
exist apart from, and in addition to, the opportunity to
raise objections during parole proceedings. Class
members should be told that those remedies no longer
exist, and that their only recourse for violations of
their rights prepetition is to file an individual civil
suit or petition for habeas corpus. (Reply 12-13.)

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Plaintiffs “request that the court stay final judgment in this
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matter to allow for a notice and comment period under Rule
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23(d)(1)(B), direct the parties to submit a stipulated proposed
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form of notice, and establish a schedule for the Court to receive
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objections and to hold a fairness hearing before any final judgment
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issues.” (Motion 22.)
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The court sees no reason to receive objections and hold a
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fairness hearing as to the propriety of decertification of the
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Valdivia class and termination of this action. The mootness of this
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case is settled as a matter of law. Consequently, any objections
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that plaintiffs may raise at a fairness hearing are simply beside
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the point. As defendants point out, “There are no individual,
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factual issues that bear on the question of mootness.” (Opposition
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16.)
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Nevertheless, plaintiffs are correct as to the importance and

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appropriateness of providing notice of termination to the plaintiff

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class. Rule 23(d) permits the court to issue orders that “require

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— to protect class members and fairly conduct the action — giving

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appropriate notice to some or all class members of . . . any step

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in the action.” Fed. R. Civ. P. 23(d)(1)(B)(ii).

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Plaintiffs argue that the costs of any notice should be
assigned to defendants, writing:

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Plaintiffs are a largely indigent class of 60,000
parolees in custody and not in custody, scattered
throughout the state of California. Their positions were
vindicated in this lawsuit in [myriad ways], and
Defendants have the means to finance a relatively modest
means of notice . . . . Assigning the cost of notice to
Defendants also promotes efficiency. Defendants keep
information concerning the location of all parolee[s] in
centralized databases; Plaintiffs’ counsel does not. For
the roughly 8% of the Plaintiff class with pending
revocation charges . . . Defendants have the ability to
personally serving [sic] on parolees in the “notice”
stage of the revocation process, which Plaintiffs’
counsel lacks. The remainder of the class is supervised
by defendant DAPO on parole and can receive notice by
posting in parole offices and by communication (mail or
in person) with their parole agents . . . [Plaintiff’s]
counsel stands to lose access to their clients once the
case is dismissed. Many County Jails, for example,
restrict legal visits to a parolee’s current counsel.
(Reply 14.)

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Defendants disagree, citing Eisen v. Carlisle & Jacquelin, 417 U.S.

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156 (1974) (finding that district court erred in dividing costs of

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notice

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proposition that “the responsibility and cost for [providing

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notice] should be borne by Plaintiffs.” (Opposition 16.) Eisen is

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easily distinguished, however, because it concerned the question

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of which side should pay for the costs of notifying potential class

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of

class

certification

between

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the

parties)

for

the

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members of class certification, a question the Supreme Court found

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to be unambiguously decided by the text of Rule 23. The issue

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presently before this court is who should bear the costs of

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notifying the class of Valdivia’s dismissal on mootness grounds.

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In deciding this question, the court is also guided by

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California Rule of Professional Conduct 3-500: “A member shall keep

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a

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relating to the employment or representation, including promptly

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complying with reasonable requests for information and copies of

client

reasonably

documents

informed

when

about

significant

necessary

to

keep

developments

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significant

the

client

so

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informed.” Class counsel bears an ethical responsibility to notify

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the Valdivia class members of the action’s dismissal.

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In light of the foregoing, it appears that the best course of

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action is to require the parties to share the costs of notice, in

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the manner set forth in the court’s order below.

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D. Alleged error in taking evidence

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Plaintiffs argue that the court erred in taking testimony from

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BPH’s Executive Officer regarding how the state intends to handle

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parole supervision and revocation for those inmates who will be

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released from prison pursuant to the order of the Three Judge Court

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in Coleman v. Brown, No. 2:90-cv-0520-LKK-JFM (E.D. Cal.) and Plata

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v. Brown, No. 3:01-01351-TEH (N.D. Cal.). Plaintiffs argue that

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“[a]llowing for an eight-month transition period would relieve the

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parties and the Court from relying on predictions about how this

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new group of parolees will be handled, and will allow the Court to

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tailor relief as necessary in the event that these parolees are put
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through administrative rather than judicial revocation processes.”

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(Motion 18)

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As

explained

above,

the

court

declines

to

maintain

the

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Valdivia Injunction as a prophylactic remedy, for to do so would

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be to presume the constitutional unfitness of California’s new

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parole system. The court is even less willing to maintain the

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Injunction in place based on the possibility that prisoners subject

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to

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administrative supervision. Any Constitutional infirmities in the

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handling of parole for these inmates will have to be addressed in

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a separate proceeding.

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early

release

might

be

placed

solely

under

defendants’

Accordingly, plaintiffs’ motion for reconsideration on this
ground is denied.

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E. Abstention

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Plaintiffs argue at length that the court “misapprehended” the

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abstention doctrine set forth in Younger v. Harris, 401 U.S. 37

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(1971) and its progeny, and argue for reconsideration on the

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grounds that abstention doctrines do not provide a basis for

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dismissal herein.

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In so arguing, plaintiffs misconstrue the substance of the

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court’s July 2 Order. Abstention was not the basis for dismissal;

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mootness

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abstention

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interference

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principle,” and concluded, “For this court to, e.g., require

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defendants to maintain the current system for providing parolees

was.

The

sole

provided
with

paragraph

that

state

the

order

“[a]bstention

from

court

in

proceedings

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is

a

to

reference

unwarranted
well-settled

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with probable cause hearings (including, as plaintiffs request,

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‘the BPH system of hearing officers and the provision of counsel

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through CalPAP’) would certainly interfere with the system of due

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process review envisioned by the state.” (July 2 Order 24-25.)

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In

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misconstrued a passing observation (that dismissal of this case is

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supported

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justification

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abstention). Mootness is a sufficient basis for dismissal, and that

making

their

by

argument,

plaintiffs

abstention/federalism
(that

would

dismissal

significantly

principles)

for

required

under

is

analysis. Reconsideration on these grounds is therefore denied.

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III. CONCLUSION

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The court hereby orders as follows:

full-blown

[1]

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relief previously ordered in this matter in place for those

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alleged parole violators who were arrested prior to July 1,

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2013, but whose alleged parole violations have not yet been

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addressed by defendants. Defendants are FURTHER DIRECTED to

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file a declaration no later than October 1, 2013 apprising

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the court as to the status of these alleged parole violators’

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cases, and to continue doing so on the first of each month

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thereafter, until all of the outstanding cases have been

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disposed

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outstanding motions for fees and costs, decertify the class,

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and dismiss this case.

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Thereafter,

the

maintain

court

the

Younger

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of.

to

a

Younger

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DIRECTED

by

legal

determination

are

undisturbed

a

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Defendants

be

have

will

injunctive

resolve

the

[2] Plaintiffs’ counsel and defendants are to provide
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notice of dismissal of this action to class members, using

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the following procedures:

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1.

The parties are to agree on the form of notice.

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2.

Defendants will provide plaintiffs’ counsel with

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the last known mailing address for each individual

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in the plaintiff class, whether incarcerated or

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not,

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printing of mailing address labels. Defendants will

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bear the costs of collecting this information and

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in

an

electronic

form

conducive

to

the

providing it to plaintiffs’ counsel.

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3.

Plaintiffs’ counsel will mail a copy of the agreed-

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upon notice to each class member, using the address

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provided by defendants. Plaintiffs’ counsel will

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bear

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notices.

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4.

the

costs

of

printing

and

mailing

these

Defendants will cause large, easily-readable copies

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of the agreed-upon notice to be placed in easily-

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visible locations in every parole office in the

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state. Defendants will bear the costs of printing

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these notices and causing them to be posted.

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The parties are DIRECTED to complete the steps above no later

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than thirty (30) days after entry of this order.

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[3] Plaintiff’s request for reconsideration of the court’s

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prior order finding this case moot is DENIED in all other

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respects.

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////
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IT IS SO ORDERED.

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DATED: September 10, 2013.

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