Herrera v. Gardner et al

Filing 72

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/24/2011 ORDERING that, w/in 5 days, dfts shall submit supplemental briefing remedying the defects discussed in this order.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARMANDO HERRERA,
Plaintiff,

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vs.

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No. CIV S-10-1744 GEB EFB P

GARDNER, et al.,
Defendants.

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ORDER
/

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On April 20, 2011, the parties appeared before the undersigned for a hearing on

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plaintiff’s motion for injunctive relief. The court ordered defendants to submit further briefing

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within two days of the classification committee meeting regarding plaintiff's classification and/or

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placement explaining the procedures CDCR was taking and would take in the future to ensure

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plaintiff’s safety.

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Defendants filed a response to the order on April 29, 2011, and supplemental briefing on

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May 11, 2011.1 Defendants’ April 29 response stated that plaintiff had appeared before the

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classification committee on April 27, and that the committee elected to retain him in the

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administrative segregation unit at CMF, where he is single-celled and on walk-alone yard.

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The court has also received various filings from plaintiff. Plaintiff’s filings will be
discussed in a later order, when the court rules on plaintiff’s motions for injunctive relief.
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Defendants further stated that plaintiff had been approved for transfer to the Psychiatric Services

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Unit (“PSU”) at CSP-Sac, and that “[b]ecause of plaintiff’s psychiatric concerns, the committee

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did not approve an alternate prison for transfer.” Dckt. No. 59 at 2. Defendants asserted that

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plaintiff would remain at CMF for “at least another four to six months before transfer.” Id.

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Defendants asserted that at CSP-Sac PSU, inmates are single-celled and confined to a one-person

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exercise module during yard time, are under the escort of two officers when they are removed

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from their cells, are placed in individual holding cells during group therapy, and do not have

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physical contact with each other. Id. Defendants submitted a declaration from Diana Esquivel,

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defendants’ counsel, detailing her conversations with CDCR employees at CMF, as well as

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copies of some emails written by those persons. Defendants did not submit any declarations

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from anyone who attended the committee meeting.

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Defendants also submitted a copy of a summary of the classification committee’s meeting

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on April 27, 2011, which states that plaintiff is to be retained in ASU at CMF, but is referred for

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“adverse transfer for indeterminate SHU to SAC-PSU/ no alternate.” Dckt. No. 59 at 12. The

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document also states that plaintiff does not meet the criteria for a single cell; that plaintiff has

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received all due process requirements and is currently validated as a Mexican Mafia associate;

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and that “[n]o further issues were noted at this time.” Id. The document does not reflect that

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plaintiff has had multiple chronos in his file over the year reflecting that he is a Mexican Mafia

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enemy.

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On May 11, 2011, defendants submitted supplemental briefing stating that counsel had

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learned that plaintiff had not been confirmed for transfer to CSP-Sac after all. Dckt. No. 66 at 2.

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“Instead, the CSR endorsed plaintiff for transfer to the PSU at Pelican Bay State Prison.” Id.

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Defendants submitted another declaration by Esquivel, stating that after she returned to her

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office from attending a deposition out of town, she read an email from plaintiff’s counselor

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which was forwarded to her by the litigation coordinator. Id. The email stated that the

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classification staff representative had decided not to endorse plaintiff for transfer to SAC
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because of the long waiting list, but instead endorsed him for transfer to the PSU at Pelican Bay

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State Prison. Id. Esquivel declares that she was informed by the litigation coordinator at Pelican

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Bay that inmates in the PSU at Pelican Bay are single-celled and on walk-alone yard; are

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escorted by two officers when they are released from their cells; participate in group therapy

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while in individual holding cells; and have no physical contact with one another. Id. Enemies

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may be housed in the same housing unit at PSU. Id. But, Esquivel declares, “little chance, if

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any, exists for inmate attacks.” Id.

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Defendants have not submitted any declarations from persons with personal knowledge
regarding what transpired at plaintiff’s classification committee meeting, and have submitted no

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evidence regarding whether the classification committee took into account plaintiff’s previous

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chronos showing that he is a Mexican Mafia enemy in deciding his future placement. Nor have

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defendants submitted any declarations from persons with personal knowledge regarding the

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safety precautions taken at Pelican Bay PSU to keep enemies separate. While defendants’

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conclusions about what the chances are for inmate attack on gang enemies are presented with

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great confidence, there is little or no underlying information and evidence to support those

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conclusions. The court cannot uncritically accept Esquivel’s representation, based solely on

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hearsay, that “little chance” exists that plaintiff will attacked by other inmates.

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Accordingly, it is hereby ORDERED that, within five (5) days of the date of this order,

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defendants shall submit supplemental briefing remedying the defects discussed above.

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Dated: May 24, 2011.

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