Plata et al v. Schwarzenegger et al

Filing 1757

ORDER by Judges Stephen Reinhardt, Lawrence K. Karlton, and Thelton E. Henderson denying 1478 Defendants' motion for dismissal or, alternatively, summary judgment. (tehlc3, COURT STAFF) (Filed on 11/3/2008)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 v. v.

IN THE UNITED STATES DISTRICT COURTS FOR THE EASTERN DISTRICT OF CALIFORNIA AND THE NORTHERN DISTRICT OF CALIFORNIA UNITED STATES DISTRICT COURT COMPOSED OF THREE JUDGES PURSUANT TO SECTION 2284, TITLE 28 UNITED STATES CODE

RALPH COLEMAN, et al., Plaintiffs, NO. CIV S-90-0520 LKK JFM P THREE-JUDGE COURT

ARNOLD SCHWARZENEGGER, et al., Defendants. MARCIANO PLATA, et al., Plaintiffs,

NO. C01-1351 TEH THREE-JUDGE COURT ORDER DENYING DEFENDANTS' MOTION FOR DISMISSAL OR, ALTERNATIVELY, SUMMARY JUDGMENT

ARNOLD SCHWARZENEGGER, et al., Defendants.

This three-judge proceeding arises from two cases in their remedial phases, Plata v.

21 Schwarzenegger, No. C01-1351 TEH, and Coleman v. Schwarzenegger, No. CIV S-90-0520 22 LKK JFM P, in which courts have found constitutionally inadequate levels of medical and 23 mental health care in California's prisons. In 2007, this court was convened pursuant to the 24 Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626(a)(3)(B), to determine whether to 25 issue a "prisoner release order" directed at alleviating those unconstitutional conditions. 26 Before issuing such an order, we must determine that crowding of California prisons is the 27 primary cause of the violation of Plaintiffs' constitutional rights, and that no other relief will 28 remedy the violation. 18 U.S.C. §§ 3626(a)(3)(E)(i), (ii).

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Pending before the Court is Defendants' September 15, 2008, motion for dismissal or,

2 alternatively, summary judgment. Defendants seek dismissal for failure to exhaust and lack 3 of jurisdiction. In the alternative, Defendants contend that there is no genuine issue of 4 material fact as to whether overcrowding is the "primary cause" of the violation of Plaintiffs' 5 right to adequate medical and mental health care. We deny the motion. 6 7 I. 8 Defendants' Motion for Dismissal for Failure to Exhaust Defendants first contend that this proceeding must be dismissed because Plaintiffs

9 failed to "exhaust[] their current complaints of overcrowding as the primary cause of the 10 alleged unconstitutional medical care or request the remedy of a prisoner release order in an 11 administrative grievance." Defs.' Mot. to Dismiss at 12. Plaintiffs argue that exhaustion is 12 not required, and we agree. 13 The PLRA provides, in part, that "[n]o action shall be brought with respect to prison

14 conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in 15 any jail, prison, or other correctional facility until such administrative remedies as are 16 available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). Here, we have two 17 preexisting lawsuits in which the constitutionality of the prison conditions has already been 18 determined adversely to Defendants. Defendants do not contend that those preexisting 19 actions, Plata and Coleman, should be dismissed for failure to exhaust. Instead, they argue 20 that additional exhaustion is required because Plaintiffs assert before this three-judge court 21 "that overcrowding is the primary reason for the alleged unconstitutional conditions" and 22 because Plaintiffs "request . . . a prisoner release order." In essence, Defendants argue that 23 the three-judge court proceeding is a new "action" for purposes of § 1997e(a), and that the 24 issue as to "primary cause" and the request as to the remedy of a prisoner release order must 25 accordingly be exhausted. However, proceedings before a three-judge court convened to 26 consider a request for a particular form of relief in cases in which prison conditions have 27 already been found to be unconstitutional are not new "action[s]" under § 1997e(a), and 28 accordingly that section is not applicable to such proceedings. Instead, a three-judge court is 2

1 convened under the PLRA only for the purpose of considering whether overcrowding is the 2 primary cause of the constitutional violation and whether the requested relief is warranted 3 under that act. 4 In this proceeding, Plaintiffs seek to implement orders obtained in the preexisting

5 actions. The Coleman Plaintiffs seek to implement a judgment entered against the state of 6 California in 1995 (before the enactment of the PLRA). See Coleman v. Wilson, 912 F. 7 Supp. 1282 (E.D. Cal. 1995). The Plata Plaintiffs seek to implement a Stipulation for 8 Injunctive Relief, which provides that, if the state "does not provide a level of medical care 9 sufficient to meet the minimum requirements of the Eighth Amendment of the United States 10 Constitution, the Court may grant relief as authorized under the [PLRA]." Stipulation for 11 Injunctive Relief, Plata v. Davis, No. C-01-1351 (TEH) (N.D. Cal. June 13, 2002) at 14.1 12 Plaintiffs merely seek to implement these prior orders with additional forms of relief.2 13 The PLRA itself squarely refutes Defendants' argument that this proceeding is a new

14 action. The PLRA provisions governing three-judge court proceedings clearly demonstrate 15 that these proceedings are a part of preexisting civil actions, not a new action. See 18 U.S.C. 16 § 3626(a)(3)(B) ("In any civil action in Federal court with respect to prison conditions, a 17 prisoner release order shall be entered only by a three-judge court . . . ." (emphasis added)). 18 Most notably, the PLRA permits "a Federal judge before whom a civil action with respect to 19 prison conditions is pending" to "sua sponte request the convening of a three-judge 20 court . . . ." 18 U.S.C. § 3626(a)(3)(D) (emphasis added). Furthermore, a plaintiff seeking a 21 prisoner release order need not prepare an amended complaint, but must simply "file . . . a 22 request for such relief" along with "a request for a three-judge court and material sufficient to 23 24 The Stipulation also states that the court "shall have the power to enforce the Stipulation through specific performance and all other remedies permitted by law." Id. 25 (emphasis added). 26 In this regard, the present proceeding is functionally identical to Clarkson v. Coughlin, No. 91-CIV-1792 (RWS), 2006 WL 587345 (S.D.N.Y. Mar. 10, 2006), in which 27 the district court rejected the defendant's argument that exhaustion was required before the plaintiffs could file a motion "that exclusively [sought] the enforcement of the terms of" a 28 consent decree. Id. at *3. 3
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1 demonstrate that the requirements of [18 U.S.C. § 3626(a)(3)(A)] have been met." 18 U.S.C. 2 § 3626(a)(3)(C). If three-judge court proceedings involved new "actions," it would be 3 impossible for a federal judge to initiate such proceedings sua sponte or for a plaintiff to 4 initiate such proceedings without amending the complaint. Because the proceeding now 5 before us is not a new action but rather a part of a preexisting civil action, the exhaustion 6 requirement is not applicable. 42 U.S.C. § 1997e(a). 7 Alternatively, when we examine separately the issues Defendants contend must be

8 exhausted, we conclude that exhaustion would not be required even if a new action were 9 before us rather than the proceeding at issue. 10 As to Defendants' assertion that Plaintiffs must exhaust their "claim" that

11 overcrowding is the primary cause of the constitutional violations, the PLRA requires 12 exhaustion of claims only "with respect to prison conditions." 42 U.S.C. § 1997e(a). The 13 prison conditions underlying this proceeding are constitutionally inadequate medical and 14 mental health care; those claims have already been adjudicated in the Plata and Coleman 15 lawsuits. The primary cause of the failure to provide the constitutionally required care is not 16 in itself a "prison condition." It is simply a legal relationship that the courts must determine 17 with respect to the reasons the unconstitutional condition exists in order to order a particular 18 form of relief. 19 The PLRA provides that a prisoner release order cannot be issued absent clear and

20 convincing evidence that "crowding is the primary cause of the violation." 18 U.S.C. 21 §§ 3626(a)(3)(E)(i). The text of the PLRA demonstrates that this requirement is not an 22 element of the claim regarding unconstitutional prison conditions but a limitation on the 23 court's remedial authority. Section 3626 as a whole is titled "Appropriate remedies with 24 respect to prison conditions," and § 3626(a) enumerates the "[r]equirements for relief" in a 25 civil action regarding prison conditions. The PLRA is explicit in limiting the court's 26 authority rather than altering the elements of the underlying claim. See 18 U.S.C. 27 § 3626(a)(1)(A) ("The court shall not grant or approve any prospective relief unless . . . ."); 28 18 U.S.C. § 3626(a)(3)(A) ("[N]o court shall enter a prisoner release order unless . . . ."). The 4

1 specific provision at issue in this proceeding provides that "[t]he three-judge court shall enter 2 a prisoner release order only if the court finds by clear and convincing evidence that 3 (i) crowding is the primary cause of the violation. . . ." 18 U.S.C. § 3626(a)(3)(E). Because 4 the factual findings required by the PLRA are not elements of the claim of unconstitutional 5 prison conditions but are pre-conditions to the exercise of the Court's remedial authority, 6 Plaintiffs' contentions regarding "primary cause" need not be exhausted. 7 We reach the same conclusion as to Plaintiffs' request for relief in the form of a

8 prisoner release order. First, like the "primary cause" issue, the particular form of relief 9 requested in litigation is not a "prison condition." Second, Booth v. Churner, 532 U.S. 731 10 (2001), suggests that the form of relief a prisoner seeks in court is irrelevant to the exhaustion 11 inquiry. Id. at 739. Following Booth, the Seventh Circuit held that "no administrative 12 system may demand that the prisoner specify each remedy later sought in litigation. . . ." 13 Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002) (citing Booth, 532 U.S. 732). Finally, 14 "[c]ompliance with prison grievance procedures . . . is all that is required by the PLRA to 15 `properly exhaust.'" Jones v. Bock, 127 S. Ct. 910, 922-23 (2007). California's regulations 16 require that prisoner grievances "describe the problem and action requested." Cal. Code 17 Reg., tit. 15, § 3084.2. Here, the "problem" is the denial of constitutionally adequate medical 18 and mental health care, and the "action requested" is the provision of adequate medical and 19 mental health care. The prisoner release order is simply one of numerous means to that end, 20 and nothing in the regulations suggests that the prisoner must describe all of the possible 21 means by which a requested action could be accomplished by the state in the exercise of its 22 discretion. What means will best help remedy the constitutional violation ­ for example, 23 building additional facilities, hiring additional doctors, implementing new quality control 24 mechanisms, or releasing prisoners ­ is a question the prisoner is in no position to evaluate.3 25 Accordingly, under the California regulations that define proper exhaustion in the present 26 We note that our interpretation of the PLRA and the California regulations as not 27 requiring exhaustion of mere means to a requested end accords with and promotes the PLRA's purpose of increasing the state's freedom to manage its prisons by choosing how to 28 address prisoner complaints. 5
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1 proceeding, Plaintiffs are not required to specify a request for a prisoner release order when 2 exhausting the administrative process under 42 U.S.C. § 1997e(a).4 3 Because the present proceeding is not a new action and because neither of the issues

4 before the Court in this proceeding would require exhaustion in any event, Plaintiffs are not 5 required to exhaust their contentions regarding the relationship between overcrowding and 6 inadequate medical and mental health care in California's prisons or their request for a 7 prisoner release order before seeking such an order from this Court.5 8 9 II. 10 Defendants' Motion for Dismissal for Lack of Jurisdiction Defendants next raise two jurisdictional arguments. First, they argue that the three-

11 judge court was improperly convened because "no federal judge has ordered less intrusive 12 relief directed at addressing prison overcrowding." Defs.' Mot. to Dismiss at 15. Even if the 13 Defendants could properly raise this argument now, over a year after the motion to convene 14 the court was granted, Defendants' argument is contrary to the PLRA's plain language. The 15 PLRA permits a three-judge court to be convened if "a court has previously entered an order 16 for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to 17 be remedied through the prisoner release order," 18 U.S.C. § 3626(a)(3)(A)(i), and if 18 Defendants have had a reasonable amount of time to comply with that order, id. 19 § 3626(a)(3)(A)(ii). Here, both parties agree that the federal right sought to be remedied is 20 21 22 Because we do not believe exhaustion of either the primary cause issue or the request for relief is required as a general matter, we need not address whether the particular 23 circumstances of Coleman and Plata ­ in particular, the fact that Coleman proceeded to judgment prior to the passage of the PLRA and that, in Plata, the state entered into an 24 agreement that "irrevocably waive[d]" its exhaustion defense in any civil lawsuit brought by Plaintiffs and their lawyers seeking injunctive relief on the basis of inadequate medical care 25 in California's prisons ­ render exhaustion unnecessary here. 26 We reject Defendants' argument that we have "indicated [our] view of this proceeding as akin to a new action through [our] handling of the issues." Our reliance on the 27 adjudicatory procedures established by the Federal Rules of Civil Procedure reflects nothing more than our judgment about the best method for determining whether to issue a prisoner 28 release order. 6
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1 the Plaintiffs' right to constitutionally adequate medical and mental health care.6 Defendants 2 do not dispute that the Plata and Coleman courts have entered orders for less intrusive relief 3 directed at remedying the deprivation of that right. See Order Granting Plaintiffs' Motion to 4 Convene Three-Judge Court, Plata v. Schwarzenegger, 2007 WL 2122657, *3 (N.D. Cal. 5 July 23, 2007); Order, Coleman v. Schwarzenegger, 2007 WL 2122636, *2 (E.D. Cal. July 23, 6 2007) ("Since February of 1996, this court has issued at least seventy-seven substantive 7 orders to defendants in an effort to bring the CDCR's mental health care delivery system into 8 compliance with the requirements of the Eighth Amendment."). Defendants' first 9 jurisdictional challenge thus fails. 10 Second, Defendants cite to Lewis v. Casey, 518 U.S. 343 (1996), and argue that

11 Plaintiffs lack standing to seek a prisoner release order directed at the general prison 12 population. But Lewis held that systemwide relief for prison inmates was inappropriate in that 13 case not because of a lack of standing but because remedies must be "limited to the 14 inadequacy that produced the injury in fact that the plaintiff has established." Id. at 357, 360 15 n.7. Here, both the Coleman and Plata courts have found systemic constitutional injury. See 16 Findings of Fact and Conclusions of Law re Appointment of Receiver, Plata v. 17 Schwarzenegger, 2005 WL 2932253, *34 (N.D. Cal. Oct. 3, 2005); Order, Coleman v. 18 Schwarzenegger, 912 F. Supp. 1282 (E.D. Cal. 1995). Broad relief that affects individuals 19 other than the plaintiffs may be appropriate in cases of systemwide injury. See Columbus Bd. 20 of Ed. v. Penick, 443 U.S. 449, 463-65 (1979) (holding that the record supported the district 21 court's order requiring defendants to submit a systemwide desegregation plan). In any event, 22 the appropriateness of the prisoner release order and its scope are questions to be addressed by 23 the Court when formulating an order granting relief, and do not affect Plaintiffs' standing. 24 We therefore deny Defendants' motion to dismiss the case for lack of jurisdiction. 25 26 Roberts v. County of Mahoning, 495 F. Supp. 2d 694 (N.D. Ohio 2006), cited by 27 Defendants, is distinguishable because the court in that case found that overcrowding itself was a "component of the unconstitutional conditions in the jail." Id. at 696. Here, Plaintiffs 28 do not argue that overcrowding itself is unconstitutional. 7
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1 III. 2

Defendants' Motion for Summary Judgment The PLRA requires that before entering a prisoner release order the three-judge court

3 must find by clear and convincing evidence that "crowding is the primary cause of the 4 violation of a Federal right," 18 U.S.C. § 3626(a)(3)(E)(i) ­ in this instance the right to a 5 constitutionally adequate level of medical and mental health care in California's prisons. 6 Defendants contend that they are entitled to summary judgment as a matter of law because 7 there is no genuine issue of material fact as to whether crowding is the primary cause of the 8 violation of that right. See Fed. R. Civ. Pro. 56(c). Defendants, being the moving party, have 9 the initial responsibility of informing this court of the basis for its belief that there is an 10 absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 11 (1986). Defendants may meet this burden by "produc[ing] evidence negating an essential 12 element of the nonmoving party's claim," or by "show[ing] that the nonmoving party does not 13 have evidence of an essential element to carry its ultimate burden of persuasion at trial." See 14 Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). 15 In moving for summary judgment, Defendants misconstrue the "primary cause"

16 standard. They make much of statements by a Plaintiffs' expert, Dr. Ronald Shansky, by the 17 Coleman Special Master, and in the Findings of Fact and Conclusions of Law regarding the 18 Appointment of a Receiver in Plata, to the effect that the problems underlying the 19 constitutional delivery of medical care are "interrelated" and "polycentric," and that 20 population reduction alone may not bring the level of care to a constitutionally acceptable 21 level. Mello Decl. Ex. A, Shansky Dep. 12:22-13:7, 88:20-24, 132: 6-9, 61:14-24, Dec. 10, 22 2007; Special Master's Response to Court's May 17, 2007 Request for Information at 15, 23 May 31, 2007 (Coleman Docket #2253); Findings of Fact Conclusions of Law re Receiver, 24 Plata v. Schwarzenegger, 2005 WL 2932253, *25 (N.D. Cal. Oct. 3, 2005). But "[p]robably 25 it cannot be said of any event that it has a single causal antecedent; usually there are many." 26 4 Harper, James and Gray on Torts § 20.2 (3d ed. 2007). The "primary cause" standard does 27 not require that crowding be the exclusive cause of the unconstitutional prison conditions ­ it 28 requires only that it be the "primary" one. Accepting, arguendo, Defendants' definition of 8

1 "primary" as "first or highest in rank or importance; chief; principal," Defs.' Mot. to Dismiss 2 at 18 (citing Random House Webster's Unabridged Dictionary 1537 (2d ed. 1998)), that there 3 are multiple, interrelated causes of inadequate care does not mean that one cause cannot be 4 the most important. 5 Similarly, Defendants misunderstand the inquiry in arguing that crowding is not the

6 "primary cause" because the Receiver's remedial efforts have led to some improvement in the 7 delivery of medical care. See Defs.' Mot. to Dismiss at 19; Reply at 12. As the Plata and 8 Coleman courts found in granting the motion to convene this three-judge court, prior remedial 9 efforts not directed at reducing the prison population level have failed to bring the delivery of 10 medical and mental health care to constitutionally acceptable levels. See Plata, 2007 WL 11 2122657 at *3; Coleman, 2007 WL 2122636 at *3. This may be some evidence that 12 overcrowding is the primary cause of the violation at issue here. Moreover, "crowding" refers 13 to population density: it does not mean only that the prison population is large, but that it is 14 large in relation to the available resources and facilities. Therefore, evidence that an increase 15 in resources has improved or will improve conditions could even indicate that crowding is the 16 primary cause of the constitutional violation. And Defendants' suggestion that "population17 related problems" could be addressed through measures other than a prisoner release order, 18 Defs.' Mot. to Dismiss at 19, confuses the "primary cause" issue with the appropriateness and 19 the proper scope of a prisoner release order. 20 Defendants also make the peculiar argument that overcrowding is not the primary

21 cause of the constitutional violations because the Plata court stated, and Plaintiffs' expert 22 agreed, that "a single root cause of this crisis" is the "historical lack of leadership, planning, 23 and vision by the State's highest officials during a period of exponential growth of the prison 24 population." Findings of Fact and Conclusions of Law re Receiver, Plata, 2005 WL 2932253 25 at *25 (emphasis added); see Defs.' Mot. to Dismiss at 18-19. Defendants' inability or 26 unwillingness to tackle the problem of the increasing prison population does not support the 27 contention that overcrowding is not the primary cause of the unconstitutional delivery of 28 9

1 medical or mental health care. It simply helps explain why overcrowding exists and has now 2 become a problem that may be the primary cause of the constitutional violation. 3 Finally, Defendants assert that Plaintiffs have no evidence to show that crowding is the

4 primary cause of the constitutional violation. Plaintiffs have, however, presented sufficient 5 evidence to create a genuine issue of material fact as to whether crowding is the primary 6 cause of inadequate care. See, e.g., RJN Ex. A at 1, Letter from the Receiver, July 24, 2006 7 ("[T]he overcrowding and medical crises are integrally related . . . [and] [i]t will not be 8 possible to raise access to, and quality of, medical care to constitutional levels with 9 overpopulation at its current levels."); RJN Ex. B at 1, Letter from the Receiver, Vol. 1, 10 Number 4, Oct. 27, 2006 ("[I]t is clear that overcrowding is at the root of many of the 11 difficulties that afflict medical care."); Special Master's Response to Court's May 17, 2007 12 Request for Information, supra, at 7 ("The struggle for acquisition of a meaningful portion of 13 healthcare clinical space, already able to meet just half the medical demand, escalates 14 relentlessly. . . . Excessive population, thus, results in a reduction of programming space now 15 occupied by inmate bunks, greater competition for use of the diminishing available space; 16 fewer escorting correctional officers to permit access to the diminishing space; and, 17 ultimately, the increasing frustration and demoralization of clinicians trying to provide the 18 treatment."); id. at 14 ("It is easy to conclude that defendants' ability to provide required 19 mental health services would be enhanced considerably by a reduction in the overall census of 20 CDCR."). From this evidence alone, inferences can be drawn that create a genuine issue of 21 fact as to whether overcrowding is the primary cause of the constitutional violation. 22 In addition, Dr. Shansky's reports set forth specific facts that lead him to conclude that,

23 factually, "overcrowding is the primary cause of the current status of medical crisis in the 24 CDCR." Shansky Decl., Ex. A at 50 (Nov. 9, 2007); see also id., Ex. C at 36 (Sept. 9, 2008). 25 Although the primary cause issue is ultimately a question of law for the three-judge court to 26 decide, the Federal Rules of Evidence allow experts to express opinions that embrace the 27 ultimate issue in a case. Fed. R. Evid. 704(a). Dr. Shanksy's statement is thus admissible to 28 the extent that it is his opinion on the factual cause of the constitutional violation. See 10

1 3 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 7:20 (3d ed. 2007) 2 ("Fed. R. Evid. 704 removes an obstacle that might otherwise block expert testimony on 3 issues of cause . . . ."); Miksis v. Howard, 106 F.3d 754, 762 (7th Cir. 1997) (holding that 4 expert testimony on whether the driver's sleep deprivation was the primary cause of the 5 accident was properly admitted because "there was a factual dispute as to whether the driver 6 was fatigued, and whether that fatigue could have caused the driver to hit [the] construction 7 bucket"); Davis v. Mason County, 927 F.2d 1473, 1484-1486 (9th Cir. 1991) (holding that the 8 district court properly allowed expert testimony that there was a causal link between the 9 reckless failure to adequately train police officers and plaintiffs' injuries), overruled on other 10 grounds by Davis v. City and County of San Francisco, 976 F.2d 1536, 1556 (9th Cir. 1992). 11 Defendants also raise a hearsay objection to Dr. Shansky's reports, but "experts are entitled to 12 rely on hearsay in forming their opinions." Carson Harbor Village, Ltd. v. Unocal Corp., 270 13 F.3d 863, 873 (9th Cir. 2001); Fed. R. Evid. 703 ("If of a type reasonably relied upon by 14 experts in the particular field in forming opinions or inferences upon the subject, the facts or 15 data [on which the expert relies for his opinion] need not be admissible in evidence in order 16 for the opinion to be admitted."). Defendants' objections based on relevance and lack of 17 foundation also fail: Dr. Shansky's opinion regarding the cause of the inadequate medical care 18 in California prisons is clearly relevant and has an adequate foundation ­ the factual bases 19 disclosed in the reports. In sum, whether we consider only the facts upon which Dr. Shansky 20 based his expert opinion as to the primary cause of the constitutional violation and draw from 21 them the inferences most favorable to Plaintiffs, or we consider the conclusion that he himself 22 drew, as an expert, Dr. Shansky's reports provide sufficient admissible evidence to create a 23 genuine issue of material fact. 24 Viewing the evidence in the light most favorable to Plaintiffs and drawing all

25 justifiable inferences in their favor, as we are required to do for the non-moving party on 26 summary judgment, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), we 27 conclude that there is sufficient evidence to raise a genuine issue of fact as to whether 28 Plaintiffs can prove by clear and convincing evidence that crowding is the primary cause of 11

1 the constitutional violations found in Coleman and Plata. For the foregoing reasons, we deny 2 Defendants' motion for summary judgment. 3 4 IV. 5 Conclusion The motion for dismissal or for summary judgment is DENIED. Plaintiffs' and

6 Defendants' Requests for Judicial Notice are GRANTED. To the extent that we rely in the 7 above order on Dr. Shansky's reports, Defendants' objections to those reports are 8 OVERRULED. We find no need to reach the balance of Defendants' evidentiary objections 9 at this time and will not resolve them for the purposes of this summary judgment motion. 10 11 IT IS SO ORDERED. 12 13 Dated: 11/03/08 14 15 16 17 Dated: 11/03/08 18 19 20 21 Dated: 11/03/08 22 23 24 25 26 27 28 12 THELTON E. HENDERSON SENIOR UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF CALIFORNIA LAWRENCE K. KARLTON SENIOR UNITED STATES DISTRICT JUDGE EASTERN DISTRICT OF CALIFORNIA /s/ STEPHEN REINHARDT UNITED STATES CIRCUIT JUDGE NINTH CIRCUIT COURT OF APPEALS