Lyon et al v. U.S. Immigration and Customs Enforcement et al

Filing 167

ORDER by Judge Edward M. Chen Granting in Part and Denying in Part 139 Defendants' Motion for Summary Judgment; and Denying 120 Plaintiffs' Motion for Summary Judgment.(emcsec, COURT STAFF) (Filed on 3/18/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AUDLEY BARRINGTON LYON, et al.,
Plaintiffs,

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT; AND DENYING
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT

v.
U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, et al.,
Defendants.

Docket Nos. 120, 139

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For the Northern District of California

United States District Court

Case No. 13-cv-05878-EMC

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I.

INTRODUCTION

The instant action is brought on behalf of a certified class of adult immigration detainees

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who are or will be held by Defendant United States Immigration and Customs Enforcement (ICE)

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in Contra Costa County, Kern County, Sacramento County, or Yuba County. Docket No. 99 (First

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Supplemental Complaint) (Compl.) at ¶ 90.

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The Immigration and Nationality Act (INA) grants the Attorney General the discretionary

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authority, transferred to the Department of Homeland Security (DHS), to detain any alien in

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removal proceedings pending a final order. 8 U.S.C. § 1226(a). At issue are conditions at four

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detention facilities used to hold adult immigration detainees: Yuba County Jail (Yuba), Rio

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Cosumnes Correctional Center (RCCC) in Sacramento County, West County Detention Facility

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(Contra Costa), and Mesa Verde Detention Facility (Mesa Verde) in Bakersfield County

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(collectively, Facilities). See FAC at ¶¶ 31-32. Plaintiffs‟ cases are venued at the San Francisco

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Immigration Court; thus, Contra Costa, RCCC, Yuba, and Mesa Verde are respectively 21, 83,

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123, and 282 driving miles from San Francisco. See Docket No. 100 (Answer) at ¶ 33. Because

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of this distance, Plaintiffs allege that in-person visits are “impractical at best,” making telephone

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access “critical to Plaintiffs‟ ability to locate, retain, and seek advice from legal counsel” and

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“essential to gather the evidence and government documents necessary to defend[] against

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removal charges, locate witnesses, and do other things necessary to represent themselves in

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complex legal proceedings.”1 FAC at ¶ 3.
However, because of restrictions on telephone access, Plaintiffs contend that they are

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unable to retain or communicate with counsel, or to gather evidence to be presented in removal

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proceedings or that is otherwise necessary for relief. Id. at ¶ 6. Plaintiffs specifically allege the

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following limitations: (1) high rates and fees for paid calls from Housing Unit Phones; (2)

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technical barriers and payment restrictions on Housing Unit Phones, such as a “positive

of the free call or pro bono platforms; (4) limits on hours of telephone access; (5) lack of privacy;

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For the Northern District of California

acceptance” requirement where the individual being called must accept the call; (3) inadequacies

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United States District Court

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(6) inability to receive incoming calls or timely messages; and (7) failure to provide notice of

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calling options for detainees with limited English or Spanish language skills. Plaintiffs Mot. at 6.

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As a result of these alleged restrictions, Plaintiffs who would be eligible for relief are deported or

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unnecessarily detained as they seek continuances in order to find counsel and gather evidence.

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Compl. at ¶¶ 5, 6.

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Based on these allegations, Plaintiffs bring three claims for relief: (1) the right to

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representation of counsel, (2) the right to a full and fair hearing, and (3) the right to petition the

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government for redress of grievances. Id. at ¶¶ 100-112. The Court certified a class of “all current

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and future immigration detainees who are or will be held by ICE in Contra Costa, Sacramento, and

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Yuba Counties” in April 2014 under Federal Rule of Civil Procedure 12(b)(2), and expanded the

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class definition to include detainees who are or will be held in Bakersfield County. See Docket

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For example, detainees seeking asylum or withholding or deferral of removal under the United
Nations Convention Against Torture often must gather evidence of their identity, conditions in
their home country, and other evidence corroborating their claim. See Docket No. 120-19
(Realmuto Dec.) at ¶ 28. Similarly, detainees seeking cancellation of removal need to establish
residency and physical presence, the absence of disqualifying criminal convictions, good moral
character, and/or hardship to a qualifying relative. Id. Finally, detainees who seek a U-visa must
obtain a government-issued form certifying that the individual was a victim of a crime and that the
individual was helpful to law enforcement. See Docket No. 120-22 (Prasad Dec.) at ¶ 16.
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Nos. 31, 98.
The parties‟ cross-motions for summary judgment came on for hearing before the Court on

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February 11, 2016. See Docket Nos. 120 (Plaintiffs Mot.), 139 (Defendants Mot.). For the

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reasons set forth below, the Court GRANTS in part and DENIES in part Defendants‟ motion for

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summary judgment, and DENIES Plaintiffs‟ motion for summary judgment.

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II.

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A.

BACKGROUND2

Undisputed Facts

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The Court finds that the following facts are not in dispute.

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1.

General Matters
1.

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Many of the detainees were arrested for a crime or are being held by the

ICE after serving time for their crimes. See Docket No. 139-2 (Shinners Dec.), Exh. 1 (Vaughn

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For the Northern District of California

United States District Court

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Dep.) at 175:25-176:4.
2.

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Of the individuals held between December 10, 2012 through August 31,

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2014, 10.54% were classified low risk, 20.5% were medium-low risk, 35.7% were medium-high

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risk, and 33.27% were high risk.3 Shinners Dec., Exh. 32.
3.

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Each of the Facilities provide access to telephones in or near the common

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areas of their housing units (Housing Unit Phones). See Docket No. 119-5, Exh. A (Berg Report)

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at 6-11.
4.

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Since this action was filed, ICE also began offering access to telephones

outside of the housing units at Yuba, Contra Costa, and Mesa Verde. Id. at 12-15.
5.

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Detainees at all four facilities also have access to a “Free Call Platform” or

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“Pro Bono Platform” from the Housing Unit Phones and some Phone Rooms, which allows free

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direct calls to a pre-programmed set of speed dial numbers. See Shinners Dec., Exh. 6 (Landy

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Defendants make a number of evidentiary objections to the declarations submitted by Plaintiffs
in support of their motion for summary judgment. Docket No. 139-1. Many of these objections
have merit, and the Court will sustain the objections. However, the objected to statements have no
impact on the Court‟s ruling on the cross-motions for summary judgment.
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Risk takes into account factors such as flight risk, protective custody factors (i.e., age), and the
seriousness or violent nature of criminal convictions. Vaughn Dep. at 199:5-19.
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Dep.) at 159:16-20.
6.

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Detainees may also request to be transported to the ICE Field Office to

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make telephone calls.4 See Shinners Dec., Exh. 31 (Butler Dep.) at 87:13-22. Detainees at all

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facilities also have access to legal mail and attorney visits, although there is some evidence that

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these services are inadequate substitutes for telephone access due to the delay in responses and

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distance between the Facilities and where attorneys are located. See Docket No. 120-17 (Supp.

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Vincent Dec.) at ¶ 11.
2.

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Contra Costa
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Contra Costa is an open, campus-style facility. Shinners Dec., Exh. 20

fall into certain security classifications, and does not house any ICE detainees classified as high

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For the Northern District of California

(Bonthron Dep.) at 45:19. Because of this open layout, Contra Costa only houses detainees who

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United States District Court

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risk, have accumulated a significant number of disciplinary incident reports, have medical or

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mental health needs, or have been violent against other inmates or staff. Id. at 45:18-46:14;

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118:18-22.
8.

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Housing Unit Phones are located in dayrooms on each tier of the housing

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units. Berg Report at 6. They are typically set up in pairs facing each other, and are often located

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only a few feet from the door of the nearest cell. Id. The Housing Unit Phones are also located

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within auditory range of the common-area tables and televisions. Id.; see also Docket No. 124-5

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(Takei Dec.) at DSC00452, 484, 504, 535. All Housing Unit Phone calls are monitored and

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recorded. Berg Report at 7.
9.

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In order to use the Housing Unit Phone, detainees must pay an initiation fee

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of $2.60-$3.00, and per-minute rates ranging from $.05-$.025. Docket No. 119-10 (Phillips Dec.),

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Exh T.

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This process requires being shackled, and is considered insufficient to comply with ICE
detention standards that require telephone access within the detention facility. See Docket No.
144-1 (Yee-Garcia Dec.), Exh. 49 (Meyer Dep.) at 132:2-14 (testifying that transportation requires
shackles on the hands and a chain around the waist); Exh. 50 (Dozoretz Dep.) at 124:16-126:1
(explaining that detention standards are facility-specific, and that if the facility lacks accessible
phones which provide privacy for detainees to discuss legal matters, it will be cited as deficient).
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10.

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Housing Unit Phone calls must be paid for by the recipient. Ha Dec., Exh.

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35 (Bonthron Dep.) at 165:20-25. Thus, detainees can only call individuals or offices that agree to

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accept collect calls or have a prepaid account. Berg Report at 7.
11.

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Housing Unit Phones have a positive acceptance requirement; the phone

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plays an outgoing message identifying the caller as an “inmate” calling from Contra Costa jail,

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before prompting the call recipient to affirmatively accept the call by pressing a numbered key on

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his or her phone. See Ha Dec., Exh. 36 (Neria-Garcia Dep.) at 169:22-24; Ha Dec., Exh. 35

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(Bonthron Dep.) at 167:8-21.
12.

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The positive acceptance requirement makes it impossible for detainees to

Dec., Exh. 35 (Bonthron Dep.) at 167:22-168:4 (explaining that calls which go to voice mail or

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For the Northern District of California

navigate automated telephone systems to dial an extension or leave a voicemail message. Ha

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United States District Court

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offices that use a phone tree system will not connect); Berg Report at 7-8, 10.
13.

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Detainees are not permitted to make three-way calls.5 Ha Dec., Exh. 31

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(Philbin Dep.) at 85:9-11 (“Q: So is it your understanding that all facilities do not allow three-way

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calls? A: That is my understanding.”); Phillips Dec., Exh. D (Contra Costa Detainee Handbook) at

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14.
14.

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Detainees are only permitted to use the Housing Unit Phones during

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designated free time hours. Ha Dec., Exh. 35 (Bonthron Dep.) at 38:1-13. Free time hours are

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limited to Monday through Wednesday and Friday between 3:30 p.m. and 5:00 p.m. and 6:30 p.m.

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to 9:00 p.m., Thursday between 6:30 p.m. and 9:00 p.m., and Saturday and Sunday between 10:30

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a.m. and 11:30 a.m., 1:30 p.m. to 2:50 p.m., 3:30 p.m. to 5:00 p.m., to 6:45 p.m. and 10:00 p.m.

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Ha Dec., Exh. 35 (Bonthron Dep.) at 60:1-8.
15.

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From the Housing Unit Phones, detainees can access the Talton Free Call

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Platform, which allows direct calls to a limited set of speed-dial numbers, made up primarily of

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federal government offices connected with immigration, the immigration court system, foreign

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Three-way calls are used by attorneys to communicate with detainees who do not share a
common language by including an interpreter. See Phillips Dec., Exh. Q (Shugall Dep.) at 96:2397:11.
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consulates, and several free legal services providers. Berg Report at 6; see also Takei Dec. at

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DSC00434, 555. The free call numbers do not include local government offices or local courts.

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See Takei Dec. at DSC00434, 555. The free legal service providers also do not include all offices

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on Defendants‟ free legal services list. Compare id. with Ha Dec., Exh. 9.
16.

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The Talton Free Call Platform has a 15-minute automatic cutoff. Contra

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Costa officials were unable to explain why there is a cutoff. Ha Dec., Exh. 37 (Grant Dep.) at

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77:4-18 (stating that she does not know why there is an automatic cutoff and when compared with

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other telephone calls, “there‟s no comparison” and “[i]t doesn‟t make any sense to me.”).
17.

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In addition to the Housing Unit Phones, Contra Costa has -- following the

filing of this suit -- added phone rooms, from which detainees are permitted to make private and

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free calls to case-related contacts. Ha Dec., Exh. 37 (Grant Dep.) at 64:9-15.
18.

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For the Northern District of California

United States District Court

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Contra Costa maintains a dedicated e-mail address for attorney e-mail

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messages, while anyone may send e-mail messages through its SmartMail service. Shinners Dec.,

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Exh. 23 at 5; Grant Dep. at 88:15-89:9.
19.

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Information about the dedicated attorney e-mail system is posted on the

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housing units to advise detainees that the system is available. Shinners Dec., Exh. 20 (Bonthron

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Dep.) at 208:14-18.
20.

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The attorney e-mail system is not confidential; two copies of the e-mail are

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printed out, with one being logged and the other hand-delivered to the detainee. Id. at 208:7-12;

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Supp. Vincent Dec. at ¶ 10.6
3.

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21.

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RCCC
RCCC houses only male detainees in dormitory-style housing units that

contain phones the detainees can access at any time.7 Shinners Dec., Exh. 31 (Butler Dep.) at

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It is unclear how quickly messages are passed onto the detainees; one attorney stated that she
would message her clients to call her, but would not receive a call back for several days. Supp.
Vincent Dec. at ¶ 10. However, she was unsure if the waiting period was due to phone
availability, a delay in clients receiving messages, or both. Id.
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For detainees held in administrative segregation, there is a dispute over how many hours a day
these detainees would have access to phones. See Ha Dec., Exh. 32 (Butler Dep.) at 63:22-64:25
(stating that they have access “several hours a day”); Docket No. 120-8 (M.G. Dec.) at ¶ 6 (stating
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32:12-14, 41:2.
22.

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The Housing Unit Phones are located within auditory range of the

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stairwells, and below a television which is kept at a loud volume. Berg Report at 7-8; see also

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Takei Dec. at DSC00329, 290.
23.

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All Housing Unit Phone calls are monitored and recorded. Berg Report at

24.

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In order to use the Housing Unit Phones, detainees must pay an initiation

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fee of $1.75 to $2.40, and per-minute rates ranging from $.175-$.50. Phillips Dec., Exh. B at 52.

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Phone calls are limited to 20 minutes. Ha Dec., Exh. 32 (Butler Dep.) at 81:17-18.

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25.

Like Housing Unit Phones at Contra Costa, Housing Unit Phones at RCCC

have a positive acceptance requirement, with the phone playing an outgoing message identifying

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For the Northern District of California

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the caller as a “Sacramento County inmate.” Ha Dec., Exh. 32 (Butler Dep.) at 118:3. The

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recipient must then accept the call. Ha Dec., Exh. 32 (Butler Dep.) at 118:15-16.

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26.

Detainees are not permitted to make three-way calls. Ha Dec., Exh. 31

(Philbin Dep.) at 85:9-11.
27.

From the Housing Unit Phones, detainees can access the Talton Free Call

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Platform. Berg Report at 6; see also Takei Dec. at DSC00356. The free call numbers do not

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include local government offices or local courts, and do not include all offices on Defendants‟ free

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legal services list. Compare id. with Ha Dec., Exh. 9.

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28.

The instructions for using the Talton Free Call Platform are confusing and

incorrect. Berg Report at 8.
29.

Unlike the other Facilities, RCCC does not offer a dedicated phone room

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for private calls. Instead, RCCC permits detainees to make phone calls from a private phone in

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the law library. Shinners Dec., Exh. 31 (Butler Dep.) at 37:16-38:1.

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30.

The library phone is free, has no time limit and does not require positive

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that while in restricted housing, he was only let out of his cell one hour a day, during which he had
access to showers and telephone calls).
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acceptance. See Shinners Dec., Exh. 31 (Butler Dep.) at 81:18-20.
31.

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Like Contra Costa, there is an e-mail system for people to communicate

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with a detainee. Shinners Dec., Exh. 31 (Butler Dep.) at 92:4-10. Each day, the e-mail is pulled

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off the server and delivered by the night shift to the deputies to be passed out to the detainees.

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Shinners Dec., Exh. 31 (Butler Dep.) at 92:11-15. The night shift and deputies are permitted to

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read these messages. Shinners Dec., Exh. 31 (Butler Dep.) at 92:16-23.

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4.

Yuba
32.

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Yuba provides a mix of housing styles; depending on the housing style,

Dep.) at 22:9-23:11. Individuals who are in an administrative segregation tank (individual cells)

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have access to phones for one hour a day. Id. at 22:9-15. Other units with single cells permit

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For the Northern District of California

detainees have varying degrees of access to the housing unit phones. Shinners Dec., Exh. 27 (Gil

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United States District Court

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access for four hours a day. Id. at 22:16-21. Individuals held in dorm style settings have access to

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phones at all times. Id. at 22:21-25.
33.

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calls are not routinely monitored. Id. at 67:15-19.
34.

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In order to use the Housing Unit Phones, detainees must pay an initiation

fee of $3.20, and per-minute rates ranging from $.06-$330. See Ha Dec., Exh. 43.
35.

Phone calls are limited to twenty minutes. Ha Dec., Exh. 27 (Vaughn Dep.)

36.

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All Housing Unit Phone calls can be monitored and recorded, although such

Like Housing Unit Phones at other facilities, the Housing Unit Phones at

at 116:6-9.

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Yuba have a positive acceptance requirement, with the phone playing an outgoing message

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identifying the caller as an “inmate at the Yuba County Jail.” Berg Report at 10. The recipient

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must then accept the call. Id.

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37.

Detainees are also not permitted to make three-way calls. Ha Dec., Exh. 31

(Philbin Dep.) at 85:9-11.
38.

From the Housing Unit Phones, detainees can access the Talton Free Call

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Platform. Berg Report at 9; see also Takei Dec., at DSC00129, 148, 188, 253, 254. The free call

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numbers do not include local government offices or local courts, and do not include all offices on
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Defendants‟ free legal services list. Compare Takei Dec. at DSC00129, 188 with Ha Dec., Exh. 9.
39.

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Yuba provides a phone room that contains two phones for detainees to

make free calls. Shinners Dec., Exh. 27 (Gil Dep.) at 24:19-24.
40.

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The Yuba phone room is generally available for use between 8 a.m. and 4

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p.m., and sometimes earlier if a detainee needs to contact someone on the east coast. Shinners

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Dec., Exh. 27 (Gil Dep.) at 25:19-23.
41.

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Detainees are limited to one 20-minute legal call per week in order “to

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provide reasonable and equitable access for all detainees,” and it takes about one week to process

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a request. Ha Dec., Exh. 19; Berg Report at 15 (“As of August 2015, there was a 1 to 2-week

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backlog in providing these calls at Yuba.”).
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For the Northern District of California

United States District Court

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Phones in this room retain the positive acceptance requirement. Berg

43.

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Finally, the official policy is that the free legal telephone calls are limited to

Report at 13.

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phone calls made directly to a legal representative, preventing detainees from using the phone

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room to call local agencies, potential witnesses or sponsors, or family members to gather evidence.

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Ha Dec., Exh. 19; see also K.M. Dec. at ¶ 14; Docket No. 120-6 (O.A. Dec. at ¶ 23).
44.

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Yuba also permits free calls from a phone in the booking area. Shinners

Dec., Exh. 27 (Gil Dep.) at 21:22-23.
45.

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Yuba maintains a system for receiving incoming messages from attorneys.

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Id. at 68:18-20. An attorney can call the facility, and facility staff are to deliver the message to the

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detainee within hours. Id. at 68:22-17. An attorney can also e-mail or fax the facility a message to

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be delivered to the detainee. Id. at 69:18-70:7.

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5.

Mesa Verde
46.

Mesa Verde is a medium-security facility that houses only ICE detainees,

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including those with high classifications. Shinners Dec., Exh. 8 (Murray Dep.) at 40:1-43:23;

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Berg Report at 10.

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47.

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Mesa Verde has four Units, and each of the Units has ten phones, many of

which are placed in large banks of telephone installations immediately adjacent to each other,
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separated by Plexiglas partitions. Berg Report at 10; see also Takei Dec. at DSC00740, 754. The

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holding cells are also equipped with a single telephone unit on wheels that can be rolled up to the

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cell door. Berg Report at 10.

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48.

Housing Unit Phone calls can be monitored and recorded (although such

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calls are not routinely monitored), except for calls to the Pro Bono Platform or to attorneys

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registered with the facility and/or the phone provider, which are never recorded or monitored.

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Shinners Dec., Exh. 10 (Bonnar Dec.) at ¶¶ 16-18.

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Housing Unit Phones require no initiation fee, and per-minute rates are $.10

for domestic calls and $.15-35 for international calls. Ha Dec., Exh. 44. Phone calls are limited to
180 minutes. Docket No. 144-1 (Yee-Garcia Dec.), Exh. 60 (Talton Dep.) at 155:5-10.
50.

Housing Unit Phones have a positive acceptance requirement, with the

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For the Northern District of California

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49.

phone playing an outgoing message stating: “This is an Intelmate automated operator with a

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[PREPAID, FREE, COLLECT] from [RESIDENT‟S NAME] at [FACILITY NAME].” Ha Dec.,

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Exh. 7. The recipient is then given the option to accept or deny the call. Id.

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51.

Three-way calls are not permitted and will be blocked. Id.

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52.

Toll free numbers, i.e., calls to 800, 866, 900 area codes, are blocked. Ha

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Dec., Exh. 40 (Murray Dep.) at 95:3-19.
53.

Detainees can access the Talton Free Call Platform from the Housing Unit

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Phones. Berg Report at 10; see also Takei Dec., at DSC00711, 712, 739, 752. The free call

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numbers do not include local government offices or local courts, and do not include all offices on

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Defendants‟ free legal services list. Compare Takei Dec. at DSC00616 with Ha Dec., Exh. 9.

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54.

Mesa Verde has several visitation rooms equipped with direct dial phones.

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Mesa Verde‟s stated policy is that free calls are permitted to the immigration court, federal and

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state courts, consular offices, legal service providers, government offices, and other individuals if

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there is a personal or family emergency or other compelling need. Shinners Dec., Exh. 17; Exh.

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11 (Harvey Dep.) at 37:3-15; see also Shinners Dec., Exh. 10 (Bonnar Dec.) at ¶ 22 (“The facility

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does not limit legal calls from the private room to calls to attorneys or legal representatives. The

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facility will allow private legal calls to be made to courts; government agencies; witnesses; and
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other verifiable, case-related contacts.”).
55.

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Mesa Verde informs detainees of this private phone option via the Mesa

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Verde detainee handbook. See Plaintiffs Mot. at 18 (arguing that access to Phone Rooms at Yuba,

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Contra Costa, and RCCC‟s library option are “not made known to Plaintiffs through policy

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documents or handbooks”); see also Docket No. 120-5 (R.K. Dec.) at ¶ 45 (“I read in a handbook

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or posting somewhere in the facility that detainees can make free, private calls to attorneys.”).
56.

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Mesa Verde also allows callers to leave messages for detainees in two ways.

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First, voicemails can be left for detainees; the cost of leaving a voicemail message is $1.20 per

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message. Shinners Dec., Exh. 11 (Bonnar Dec.) at ¶ 31. These voicemail messages are accessible

Exh. 39 (Harvey Dep.) at 55:19-56:10. Second, legal representatives may also call the facility and

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For the Northern District of California

directly by the detainee, without having to be transcribed by a Mesa Verde employee. Ha Dec.,

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United States District Court

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leave messages at no cost. Id. at ¶ 32. Emergency messages may be left using this latter system at

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no cost. Id. Using this system, messages are written down and delivered no less than three times

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a day. Ha Dec., Exh. 38 (Andrews Dep.) at 84:10-14. Because they are written down by a staff

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member, they are not considered private. Ha Dec., Exh. 39 (Harvey Dep.) at 57:2-5.

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B.

Disputed Facts
The parties dispute a number of facts, primarily related to the availability of private phone

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calls at each Facility.


For the Contra Costa phone room, the parties dispute whether detainee calls are limited to

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attorneys only, and the availability of these phone rooms. Defendants assert that detainee

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calls have been made to non-attorneys from the phone rooms, and that the phone rooms are

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available at any time upon request. See Shinners Dec., Exh. 20 (Bonthron Dep.) at 38:18-

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20 (stating that detainees have 24/7 hour access to the private phone line in the phone

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rooms); Shinners Dec., Exh. 24 (Lyon Dep.) at 66:16-24 (stating that detainees generally

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cannot use phones during lockdown time, but that he was permitted to make a call because

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his attorney had made a request for a call during that particular time beforehand); Shinners

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Dec., Exh. 25 (V.V. Dep.) at 94:25-95:4; Shinners Dec., Exh. 37 (phone logs indicating

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calls with family members). Plaintiffs contend that access is granted at the discretion of
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individual deputies, and that many detainees are denied access outside of free-time hours.

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Ha Dec., Exh. 36 (Neria-Garcia Dep.) at 61:22-62:1 (“In Contra Costa we -- we were only

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allowed to use the phone during our free time, which was an hour per day.”); Phillips Dec.,

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Exh. P (Lyon Dep.) at 48:23-49:2 (stating that phone room access was usually limited to

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“free time, but it depends on the deputy, he can let you use it.”). Plaintiffs also present

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evidence that until at least October 2015, the phone rooms were limited to attorney calls

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only. Berg Report at 12 (“Detainee interviews confirmed that the phone rooms can only be

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used to call attorneys and only during free-time hours, with some exceptions based on the

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discretion of deputies”). For example, Lieutenant Bonthron explained in his August 2015

attorneys; however, Plaintiffs‟ expert, Mr. Berg, reported that during his visit to Contra

12
For the Northern District of California

deposition that Contra Costa expanded its policy to allow phone use not just with

11

United States District Court

10

Costa in October 2015, the deputies who demonstrated the phone system informed him

13

that they would disconnect the call if they determined that the call was not to an attorney‟s

14

office. Shinners Dec., Exh. 20 (Bonthron Dep.) at 123:21-24; Berg Report at 12.

15



At RCCC, the parties dispute whether the option to make phone calls from the law library

16

is truly private, as the phone is located on the library officer‟s desk, close to where the

17

deputy sits, and is within earshot of other detainees using the library. Berg Report at 13;

18

see also Takei Dec., at DSC00422, 423, 428. There is also evidence that detainees are not

19

given advance notice of when they may use the library phone, and therefore cannot

20

schedule calls with their attorneys or other individuals. See Docket No. 120-8 (M.G. Dec.)

21

at ¶ 24; Docket No. 120-12 (I.P. Dec.) at ¶ 24.

22



For the Yuba phone room, the parties dispute whether this phone room is truly private, as

23

there is no barrier between the phones. Berg Report at 13; see also Takei Dec., at

24

DSC00190. Furthermore, under normal circumstances, it is expected that both telephones

25

will be used simultaneously, although Yuba‟s policy states that “[w]hen a detainee

26

specifically requests a private phone call, they may be placed into the room alone.” Ha

27

Dec., Exh. 19.

28



For the Mesa Verde phone rooms, the parties dispute whether calls to non-attorneys are
12

1

permitted. Plaintiffs point to policies which explain the policy for obtaining legal calls as

2

submitting a detainee request (kite) to the shift supervisor with the phone number of the

3

attorney, which will then be verified by onsite staff. Ha Dec., Exh. 16. Plaintiffs also cite

4

to deposition testimony, in which Mesa Verde officials expressed uncertainty as to whether

5

a legal call would include witnesses. See Ha Dec., Exh. 40 (Murray Dep.) at 91:5-14

6

(stating that he did not know if a legal call included calls to witnesses); Yee-Garcia Dec.,

7

Exh. 54 (Harvey Dep.) at 74:15-75:20 (stating that she had not scheduled a call to a

8

potential witness for a pro se detainee, but also noting that she had “never had anybody ask

9

that, so I don‟t really have an understanding of calling a witness.”).

10

12
For the Northern District of California

United States District Court

11

13
14

C.

Named Plaintiffs‟ Experiences
Although the parties‟ characterizations of these facts may differ, the parties do not dispute

the following facts regarding each of named Plaintiffs‟ experiences.
1.

Jose Astorga-Cervantes
57.

Named Plaintiff Jose Astorga-Cervantes was detained at RCCC for ninety

15

days beginning on or about November 20, 2013. See Docket No. 14-3 (Astorga-Cervantes Dec.)

16

at ¶ 4; Shinners Dec., Exh. 7 (Astorga-Cervantes Dep.) at 33:16-17.

17

58.

Beyond his thirty-second free phone call, he was unable to speak with his

18

family due to the costs of phone calls, except for once on December 17 when a fellow inmate

19

allowed him to use his phone credit. Astorga-Cervantes Dec. at ¶ 7.

20

59.

With the assistance of his fellow detainees, Mr. Astorga-Cervantes was able

21

to use the Pro Bono Platform on the housing unit phones to contact several legal aid groups,

22

including Catholic Charities and another in Palo Alto. Shinners Dec., Exh. 7 (Astorga-Cervantes

23

Dep.) at 17:20-23. Both Catholic Charities and the group in Palo Alto informed him that they

24

could not pick up any more cases. Id. at 19:8-15.

25
26
27
28

60.

Mr. Astorga-Cervantes was able to obtain an attorney for his first

immigration hearing on December 18, 2013. Id. at 40:3-16.
61.

On January 23, 2014, the immigration judge granted Mr. Astorga-Cervantes

release on bond, which he paid on February 20, 2014. Id. at 60:17-61:10.
13

1
2

2.

Nancy Neria-Garcia
62.

Named Plaintiff Nancy Neria-Garcia was detained at Yuba from June 26,

3

2014 to March 26, 2015, at Mesa Verde from March 26, 2015 to June 3, 2015, and at Contra Costa

4

from June 4, 2015 until her release on October 22, 2015. Docket No. 120-7 (Neria-Garcia Dec.) at

5

¶¶ 7-10; Shinners Dec., Exh. 36 (Neria-Garcia Dep.) at 18:11-15.

6

63.

Ms. Garcia retained immigration counsel, who she was able to meet with in-

7

person and speak to on the phone while being held at Yuba. See Shinners Dec., Exh. 36 (Neria-

8

Garcia Dep.) at 27:3-9, 28:8-12.

9

64.

Ms. Neria-Garcia‟s access to phones varied depending on which housing

Garcia was locked down in a cell for 23 hours a day, and could only access the telephone during

12
For the Northern District of California

unit she was at. Neria-Garcia Dec. at ¶¶ 14-17. For example, in one housing unit, Ms. Neria-

11

United States District Court

10

one hour of “hallway time.” Id. at ¶ 17.

13
14
15

65.

Ms. Neria-Garcia was uncomfortable talking to her attorney about her case

on the housing unit phones due to lack of privacy.
66.

It was not until October 2014 that she was informed by another detainee

16

that she could make free telephone calls from the phone room, although she had to share the phone

17

room with another detainee. Id. at ¶ 20.

18

67.

Ms. Neria-Garcia had problems calling coworkers for assistance in her case

19

due to the positive acceptance requirement on the Housing Unit Phones; coworkers would not pick

20

up her calls because they did not know who was calling them from jail. Shinners Dec., Exh. 36

21

(Neria-Garcia Dep.) at 54:3-24.

22
23
24

68.

While at Mesa Verde, Ms. Neria-Garcia read in the detainee handbook that

detainees could make private calls to their attorneys. Neria-Garcia Dec. at ¶ 25.
69.

She would write requests to speak to her attorney, to varying degrees of

25

success; for example, one request was granted the next day, one was granted four days later, and

26

one was denied because she had to wait a few days before making another request. Id. at ¶ 26.

27
28

70.

Ms. Neria-Garcia was able to make between eight and ten short calls to her

attorney from the Housing Unit Phones. Shinners Dec., Exh. 36 (Neria-Garcia Dep.) at 141:1314

1

18.
71.

2

Ms. Neria-Garcia was held at Mesa Verde while her case was on appeal,

3

and has admitted that the telephone situation at Mesa Verde did not interfere with her case or her

4

ability to seek release on bond. Id. at 125:24-126:9.
72.

5

While at Contra Costa, Ms. Neria-Garcia was able to meet her attorney in-

6

person between seven and ten times, and to speak with him using the phone room at least fifteen

7

times (but never the Housing Unit Phone). Id. at 143:23-145:16.
3.

8

Audley Barrington Lyon, Jr.
73.

9

Named Plaintiff Audley Barrington Lyon, Jr. was detained at Contra Costa

from October 22, 2013 to April 23, 2015. Docket No. 120-9 (Lyon Dec.) at ¶ 5; Compl. at ¶ 11;

11

Answer at ¶ 11.
74.

12
For the Northern District of California

United States District Court

10

13

Mr. Lyon was able to make phone calls using the Pro Bono Call platform by

December 3, 2013. Shinners Dec., Exh. 24 (Lyon Dep.) at 98:11-14.
75.

14

Prior to obtaining representation, Mr. Lyon attempted to gather documents

15

on his own. Lyon Dec. at ¶ 5. During that time, he continued his case three times, for two to three

16

weeks each time, while he tried to gather documentation in support of his U visa application. Id.

17

at ¶¶ 5-7.
76.

18

Relying on himself and his wife‟s assistance, he tried to obtain a police

19

report from the East Palo Alto Police Department and records from the victims services unit of the

20

San Mateo District Attorney‟s Office. Id. at ¶ 7. However, he was unable to call either the police

21

department or the victims services unit, as neither was willing to accept his call. Id. at ¶ 8.
77.

22

Mr. Lyon‟s wife was also unable to obtain the police report because the

23

police department would only release it to Mr. Lyon or Mr. Lyon‟s legal representative. Id. at ¶

24

11.

25

78.

Mr. Lyon had difficulty communicating with his wife because she could not

26

afford to pay for telephone calls; instead, they would communicate by writing letters, a process he

27

considered slow and inefficient as a simple question caused a delay of several days. Id. at ¶ 9-10.

28

79.

Mr. Lyon was eventually able to retain counsel in early 2014. Id. at 28:115

1

23. After he obtained counsel, Mr. Lyon was able to communicate with his attorney because she

2

would come to the building so that he did not need to call her. Shinners Dec., Exh. 24 (Lyon

3

Dep.) at 94:2-8.
III.

4
5

A.

DISCUSSION

Standard of Review
The Court shall grant a motion for summary judgment “if the movant shows that there is

6
7

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

8

law.” Fed. R. Civ. Proc. 56(a). An issue of fact is genuine only if there is sufficient evidence for a

9

reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.

party]‟s position will be insufficient; there must be evidence on which the jury could reasonably

12
For the Northern District of California

242, 248-49 (1986). “The mere existence of a scintilla of evidence in support of the [non-moving

11

United States District Court

10

find for the [non-moving party].” Id. at 252. At the same time, “all reasonable inferences must be

13

drawn in favor of the non-movant.” John v. City of El Monte, 515 F.3d 936, 941 (9th Cir. 2008).
The moving party bears the burden of demonstrating the absence of a genuine issue of

14
15

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party

16

has the ultimate burden of proof, the moving party may prevail on a motion for summary

17

judgment by pointing to the non-moving party‟s failure “to make a showing sufficient to establish

18

the existence of an element essential to that party‟s case.” Id. at 322.

19

B.

20

Immigration and Nationality Act (INA)
First, Plaintiffs allege that their rights to counsel and to present evidence, as articulated by

21

the INA, are violated by the Facilities‟ phone conditions. Plaintiffs Mot. at 25. The INA itself

22

does not dictate the precise level of telephone access required for detainees. Instead, Plaintiffs

23

rely on 8 U.S.C. § 1229a(b)(4) to establish their rights under the INA. Section 1229a governs

24

removal proceedings generally, while section 1229a(b)(4) delineates an alien‟s rights in

25

proceedings, which include:

26
27
28

(A) the alien shall have the privilege of being represented, at no
expense to the Government, by counsel of the alien‟s choosing who
is authorized to practice in such proceedings,
16

(B) the alien shall have a reasonable opportunity to examine the
evidence against the alien, to present evidence on the alien‟s own
behalf, and to cross-examine witnesses presented by the
Government but these rights shall not entitle the alien to examine
such national security information as the Government may proffer in
opposition to the alien‟s admission to the United states or to an
application by the alien for discretionary relief under this chapter,
and8

1
2
3
4
5

(C) a complete record shall be kept of all testimony and evidence
produced at the proceeding.

6

Plaintiffs argue that a necessary condition of these statutory rights include the ability to retain or

8

consult with counsel under section 1229a(b)(4)(A), and to obtain evidence under section

9

1229a(b)(4)(B).

10

1.

11

Because removal proceedings are civil rather than criminal proceedings, “litigants in

Right to Counsel

12
For the Northern District of California

United States District Court

7

removal proceedings have no Sixth Amendment right to counsel.” Torres-Chavez v. Holder, 567

13

F.3d 1096, 1100 (9th Cir. 2009) (citation omitted). However, the Ninth Circuit has also

14

recognized that “[t]he right to counsel in immigration proceedings is rooted in the Due Process

15

Clause and codified at 8 U.S.C. § 1362 and 8 U.S.C. § 1229a(b)(4)(A).” Biwot v. Gonzales, 403

16

F.3d 1094, 1098 (9th Cir. 2005).
Plaintiffs contend that a detainee‟s statutory rights under the INA should be informed by

17
18

Sixth Amendment cases concerning the rights of criminal defendants to counsel. Plaintiffs Mot. at

19

22, 25. In support, Plaintiffs cite Montes-Lopez v. Holder, in which the Ninth Circuit found that a

20

petitioner‟s right to be represented in removal proceedings was violated when the immigration

21

judge (IJ) refused to continue the hearing when the petitioner‟s attorney failed to appear. 694 F.3d

22

1085, 1086 (9th Cir. 2012). In concluding that an alien need not show prejudice where an alien is

23

denied a statutory right to be represented by counsel, the Ninth Circuit drew in part on the “logic

24

that has guided [its] interpretation of the Sixth Amendment.” Id. at 1092-93. However, the Ninth

25
26
27
28

8

8 U.S.C. § 1362 likewise states that: “In any removal proceedings before an immigration judge
and in any appeal proceedings before the Attorney General from any such removal proceedings,
the person concerned shall have the privilege of being represented (at no expense to the
Government) by such counsel, authorized to practice in such proceedings, as he shall choose.”
17

1

Circuit did not so go far as to suggest that courts should import rights due under the Sixth

2

Amendment to the immigration context; instead, the Ninth Circuit acknowledged that “[t]he Sixth

3

Amendment does not apply in the immigration context.” Id. at 1092.
Other Ninth Circuit decisions have declined to apply rights and standards owed under the

4
5

Sixth Amendment in the immigration context. For example, the Ninth Circuit has held that

6

“Miranda warnings are not required before questioning in the context of a civil deportation

7

hearing . . . because deportation proceedings are not criminal prosecutions, but are civil in nature.”

8

United States v. Solano-Godines, 120 F.3d 957, 960 (9th Cir. 1997); see also id. at 960-61 (“The

9

full panoply of procedural and substantive safeguards which are provided in a criminal proceeding

Ninth Circuit has also noted that with respect to ineffective assistance of counsel, the Sixth

12
For the Northern District of California

are not required at a deportation hearing”) (internal modifications and citation omitted). The

11

United States District Court

10

Amendment framework does not apply; instead, “aliens shoulder a heavier burden of proof in

13

establishing ineffective assistance of counsel under the Fifth Amendment than under the Sixth

14

Amendment.”9 Torres-Chavez v. Holder, 567 F.3d 1096, 1100 (9th Cir. 2009) (citation omitted).

15

Given that the Ninth Circuit has generally recognized that the Sixth Amendment does not

16

apply to removal hearings because they are civil proceedings, the Court declines to adopt

17

Plaintiffs‟ suggestion that Sixth Amendment cases should be applied to determine what rights are

18

required to satisfy the INA‟s right to counsel. See Docket No. 141 (Plaintiffs Opp.) at 23. The

19

Ninth Circuit has never so held, and the Court is reluctant to so interpret the INA absent any

20

indication that Congress intended to import full Sixth Amendment standards into the INA.

21

Plaintiffs have not submitted any such indication.

22

The Court must therefore look to existing precedent. The Ninth Circuit has thus far only

23

found violations of the statutory right to counsel where conditions were “tantamount to denial of

24
9

25
26
27
28

While Torres-Chavez analyzed the plaintiff‟s ineffective assistance of counsel claim by applying
the Sixth Amendment framework, that was because the Sixth Amendment applied a higher
standard; thus, “[i]f an attorney‟s performance passes muster under Strickland, it cannot render an
alien‟s proceeding fundamentally unfair. In other words, there is no violation of the alien‟s Fifth
Amendment right to due process if the alien‟s counsel was effective for Sixth Amendment
purposes.” 567 F.3d at 1100. Torres-Chavez does not suggest that courts should apply rights due
under the Sixth Amendment, as Plaintiffs contend. See Plaintiffs Opp. at 23.
18

1

counsel.” Biwot, 403 F.3d at 1099 (finding that IJs should grant reasonable continuances to give

2

an alien sufficient time to locate counsel and permit counsel to prepare for a hearing); see also

3

Rios-Berrios v. INS, 776 F.2d 859, 862-63 (9th Cir. 1985) (finding that IJ should have continued

4

the hearing to provide the petitioner reasonable time to locate counsel where petitioner was

5

effectively given only two business days to obtain an attorney, was in custody, spoke only

6

Spanish, had limited education, was unfamiliar with the country and legal procedures, and was

7

3,000 miles from his only friend in the country).

8
9

Here, while Plaintiffs present evidence that telephone restrictions result in difficulty
locating, retaining, and consulting with counsel, Plaintiffs have not presented evidence that these

many of their witnesses did eventually find counsel after months of searching and with assistance

12
For the Northern District of California

restrictions were “tantamount to denial of counsel.” For example, Plaintiffs acknowledge that

11

United States District Court

10

from friends or family. See Plaintiffs Opp. at 4, fn. 9. There are also available means of

13

communicating with counsel, whether by non-private calls, legal mail, in-person meetings, and

14

scheduling private calls. While these options may limit the effectiveness of communications with

15

counsel, Plaintiffs have not shown that they are tantamount to an outright denial of counsel. For

16

this reason on this record, the Court finds that Defendants are entitled to summary judgment on

17

this claim.

18

2.

Right to a Full and Fair Hearing Under Section 1229a(b)(4)(B)

19

Next, Plaintiffs contend there is a right to a full and fair hearing -- which includes a

20

reasonable opportunity to prepare the case, including the gathering of evidence -- based on Section

21

1229a(b)(4)(B) on the INA. Plaintiffs Mot. at 23; Compl. at ¶ 107. Again, section 1229a(b)(4)(B)

22

require that “the alien shall have a reasonable opportunity to examine the evidence against the

23

alien, to present evidence on the alien‟s own behalf, and to cross-examine witnesses presented by

24

the Government . . . .” However, none of the cases examining the INA cited by Plaintiffs discuss

25

a general right to gather evidence in preparation for a hearing; instead, they focus primarily on

26

whether an IJ‟s denial of a continuance of a hearing resulted in the exclusion of evidence. See

27

Cruz Rendon v. Holder, 603 F.3d 1104, 1110 (9th Cir. 2010) (“When determining whether an IJ

28

has abused her discretion, we consider a number of factors, including: (1) the nature of the
19

1

evidence excluded as a result of the denial of the continuance . . . .); Baires v. INS, 856 F.2d 89, 92

2

(9th Cir. 1988) (petitioner‟s statutory right to present evidence was violated where IJ denied

3

request for a continuance and change of venue, preventing petitioner from presenting the

4

testimony of his expert witness and two other potential witnesses).10
Plaintiffs‟ reliance on Dent v. Holder is misplaced. In Dent v. Holder, the Ninth Circuit

5
6

found that the ICE was statutorily required to provide documents in the petitioner‟s A-file which

7

were relevant to the petitioner‟s citizenship claim. 627 F.3d 365, 369, 374 (9th Cir. 2010). Dent

8

is distinguishable on two grounds. First, Dent was not decided on statutory grounds, but on due

9

process grounds, as the Ninth Circuit found that the failure to provide the A-file documents

fair hearing).11 Id. at 374. Second, the Ninth Circuit‟s finding that the petitioner was entitled to

12
For the Northern District of California

violated the petitioner‟s Fifth Amendment right to due process (including the right to a full and

11

United States District Court

10

his A-file was premised on section 1229a(c)(2)(B), which expressly gives an alien access to his

13

entry document and any other non-confidential records pertaining to the alien‟s admission or

14

presence in the country. Id. Thus, there was a direct violation of the plaintiff‟s right to particular

15

evidence as specifically required by statute.

16
17
18
19
20
21

22
23
24
25
26
27
28

10

In Cruz Rendon and Baires, the evidence was available for the hearing, but could not actually be
presented at the hearing because of the IJ‟s action. See Cruz Rendon, 603 F.3d at 1109 (IJ
precluded Cruz Rendon from testifying as to any topic that was mentioned in her son‟s
psychological evaluation, including “the life she had created for [her son] in the United States,
[her son‟s] medical and educational needs, and the hardships [her son] would face if forced to
relocate to Mexico”); Baires, 856 F.2d at 92 (denial of continuance precluded presentment of
evidence because “[t]he necessary arrangements for the testimony of these potential witnesses
could not be completed by April 15, nor was the expert able to travel to Florence”). The
challenged conduct in these cases was more proximate to the presentation of evidence at the
hearing than the alleged interference with the investigation and gathering of evidence at issue in
the instant case.
11

Plaintiffs‟ other cases do not rely on the statutory right to present evidence under section
1229a(b)(4)(B), but instead rely on due process grounds, see Ibarra-Flores v. Gonzales, 439 F.3d
614, 621 (9th Cir. 2006) (holding that petitioner‟s due process rights were violated where IJ
refused to order the INS to produce petitioner‟s voluntary departure form), or the failure to provide
a petitioner with a reasonable opportunity to examine the evidence against him in the hearing. See
Singh v. Holder, 405 Fed. Appx. 193, 194 (9th Cir. 2010) (holding that petitioner‟s statutory right
to examine the evidence against him was violated where the IJ refused to grant a continuance to
allow the petitioner to conduct a forensic analysis of the original letters that the government had
failed to provide even though the government knew the petitioner wanted to use the letters in his
defense against the government‟s allegations).
20

In contrast, Plaintiffs‟ concern in the instant case is the process of gathering evidence in

1
2

advance of a hearing, evidence such as that from family members, the community, and other

3

government agencies (such as local police departments); the INA does not expressly address the

4

process of gathering such evidence. Neither the language of the statute (which provides only for

5

the reasonable opportunity to present evidence) nor any existing case precedent cited by Plaintiffs

6

supports Plaintiffs‟ expansive reading of the INA that would provide for a general right to

7

investigate and gather evidence in advance of and in preparation for a removal hearing.12 Thus,

8

the Court holds that Defendants are also entitled to summary judgment on this statutory claim.

9

C.

Due Process
Plaintiffs assert that their rights to counsel and to a full and fair hearing under the due

10

process clause have been violated. In general, “[t]he Fifth Amendment guarantees due process in

12
For the Northern District of California

United States District Court

11

deportation proceedings. As a result, an alien who faces deportation is entitled to a full and fair

13

hearing of his claims and a reasonable opportunity to present evidence on his behalf.” Colmenar

14

v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (citations omitted). A decision can be reversed on due

15

process grounds “if the proceeding „was so fundamentally unfair that the alien was prevented from

16

reasonably presenting his case.‟” Id. (quoting Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th

17

Cir. 1986). The alien must also “show prejudice, which means that the outcome of the proceeding

18

may have been affected by the alleged violation.” Id.

19

1.

Substantive Due Process

20

Plaintiffs contend that their confinement violates substantive due process in two ways: (1)

21

being housed in conditions identical to county prisoners awaiting criminal trials and serving

22

criminal sentences is unconstitutionally punitive, and (2) restrictions and denial of telephone

23

access prolong Plaintiffs‟ detention without any compelling justification. Plaintiffs Mot. at 44-45.
a.

24

Conditions of Confinement

First, the Court finds that Defendants are correct in that Plaintiffs did not expressly plead a

25
26
12

27
28

To the extent Plaintiffs again rely on Montes-Lopez and Torres-Chavez, the Court finds for the
reasons stated above that neither of these cases stands for the proposition that rights under Sixth
Amendment jurisprudence should be applied in the immigration context.
21

1

claim regarding the conditions of confinement. Plaintiffs‟ complaint is focused specifically on the

2

alleged failure to provide adequate phone access; it does not challenge the practice of confining

3

detainees in conditions identical to criminal prisoners. See FAC at ¶ 91 (class wide allegation that

4

Defendants have engaged in a common course of conduct of denying and restricting Plaintiffs‟

5

telephone access). While Plaintiffs do allege due process violations, which could encompass both

6

procedural and substantive due process violations, Plaintiffs‟ due process violations are still

7

related to the failure to provide adequate phone access, and the resulting impacts. FAC at ¶¶ 100-

8

109. Because Plaintiffs did not plead any claims or facts challenging their confinement in

9

conditions identical to criminal prisoners, no such claim is at issue, and the Court finds that

10

12
For the Northern District of California

United States District Court

11

summary judgment in favor of Defendants on this claim is appropriate.
b.

Prolonged Imprisonment

Second, the Court finds that Plaintiffs do not have a claim for substantive due process as to

13

prolonged imprisonment. Unlike their challenge to the conditions of confinement, Plaintiffs did

14

make specific allegations of prolonged incarceration. FAC at ¶¶ 69-70. Specifically, Plaintiffs

15

allege that “Defendants‟ restriction and denial of telephone access to immigrants held in ICE

16

custody substantially prolongs Plaintiffs‟ incarceration pending removal hearings [because a]

17

master calendar hearings, Plaintiffs are forced to ask the immigration judge for a continuance to

18

retain counsel, to prepare their cases, or simply to obtain legal advice . . . .” Id. at ¶ 69.

19

In Zadvydas v. Davis, the Supreme Court found that a statute which permitted aliens to be

20

detained following a final order of removal did not permit indefinite detention. 533 U.S. 678, 682,

21

690 (2001). In so ruling, it recognized a six-month (180 days) period in which an alien can be

22

held, after which “once the alien provides good reason to believe that there is no significant

23

likelihood of removal in the reasonably foreseeable future, the Government must respond with

24

evidence sufficient to rebut that showing.” Id. at 701.

25

Subsequent decisions have recognized this six-month incarceration period. For example,

26

in Demore v. Kim, the Supreme Court rejected a respondent‟s habeas corpus action, in which the

27

respondent argued that his detention under section 1226(c) violated due process because no

28

determination had been made that he posed either a danger to society or a flight risk. 538 U.S.
22

1

510, 514 (2003). The Supreme Court distinguished Zadvydas in two respects. First, it explained

2

that Zadvydas dealt with aliens who challenged their detention following final orders of

3

deportation but “for whom removal was „no longer practically attainable.‟” Id. at 527 (quoting

4

Zadvydas, 533 U.S. at 690). In such cases, the purpose of detention (to hold people in preparation

5

for removal) “no longer bears a reasonable relation to the purpose for which the individual was

6

committed” because for those individuals, removal was not possible. Id. (quoting Zadvydas, 533

7

U.S. at 690). By contrast, Demore involved detention of deportable criminal aliens pending their

8

removal proceedings, and “[s]uch detention necessarily serves the purpose of preventing

9

deportable criminal aliens from fleeing prior to or during their removal proceedings, thus

527-28. Second, the Supreme Court concluded that Zadvydas was “materially different” because

12
For the Northern District of California

increasing the chance that, if ordered removed, the alien will be successfully removed.” Id. at

11

United States District Court

10

it involved an indefinite and potentially permanent duration, whereas Demore involved detention

13

“of a much shorter duration.” Id. at 528. It noted that in most cases, detention lasted “less than

14

the 90 days we considered presumptively valid in Zadvydas,” as in 85% of the cases in which

15

aliens were detained pursuant to section 1226(c), removal proceedings were completed in an

16

average time of 47 days and a median of 30 days. Id. at 529. Even in the remaining 15% of cases,

17

in which the alien appealed, the appeal took an average of four months. Id. “In sum, the detention

18

at stake under § 1226(c) lasts roughly a month and a half in the vast majority of cases in which it

19

is invoked, and about five months in the minority of cases in which the alien chooses to appeal.”

20

Id. at 530. While the respondent had been detained for six months, the Supreme Court noted that

21

“respondent himself had requested a continuance of his removal hearing.” Id. at 531. Based on

22

these distinctions, the Supreme Court rejected the respondent‟s habeas claim.

23

The Ninth Circuit has also recognized that prolonged incarceration typically requires

24

incarceration of at least 180 days. See Diouf v. Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011);

25

see also Rodriguez v. Robbins, 715 F.3d 1127, 1138 (9th Cir. 2013) (“As a general matter,

26

detention is prolonged when it has lasted six months and is expected to continue more than

27

minimally beyond six months”) (quotation omitted). In Diouf, at issue were DHS regulations that

28

provided for custody reviews within 90 days, 180 days, and 18 months of confinement. Id. at
23

1089. During the 90-day removal period, DHS was required to detain the alien, after which

2

continued detention was at the discretion of the Attorney General. Id. The Ninth Circuit found

3

that there were no serious constitutional concerns with the initial 90-day review period because its

4

focus was “on prolonged detention.” Id. at 1091. As to the time between the 90-day and 180-day

5

review period, the Ninth Circuit found that “[d]etention during this period certainly affects aliens‟

6

interests in freedom from confinement, and requires that adequate procedural safeguards be in

7

place to protect against the erroneous deprivation of liberty. But given the relatively limited

8

period of detention involved, and in view of the Mathews factors as a whole, the period afforded

9

by the DHS regulations is adequate.” Id. However, after the 180-day period, the Ninth Circuit

10

found that the alien‟s detention could be prolonged an additional year; thus, “[a]t this point, the

11

alien‟s continuing detention becomes prolonged.” Id.
In the instant case, Plaintiffs cite no cases in which a court found a violation of substantive

12
For the Northern District of California

United States District Court

1

13

due process for prolonged incarceration that lasted less than the presumptively valid six-month

14

period in the immigration context.13 Here, Plaintiffs themselves present evidence that the average

15

time of detention between June 1, 2014 and May 30, 2015 was about 36 days, and the majority of

16

stays (59%) were less than three weeks. Docket No. 119-6, Exh. A (Levy Report) at ¶ 6. While

17

there are a few individuals who have been detained for more than 180 days, including Mr. Lyon

18

(detained October 2013 and April 2015) and Ms. Neria-Garcia (detained between June 2014 and

19

October 2015), Plaintiffs‟ expert notes that in general, “[m]any detainees are held for very short

20

periods of time, while a few are held for very long periods of time.”14 Id.

21

22
23
24
25
26

13

Plaintiffs do cite Zavala v. Ridge, 310 F. Supp. 2d 1071 (N.D. Cal. 2004); however, this case
was a challenge to a regulation which automatically stayed the IJ‟s decision to grant bond. Id. at
1075. As the district court explained, this automatic stay, “which permits unilateral government
detention of individuals without a case-by-case determination after a reasoned finding that they do
not pose threat to safety or a risk of flight, violates the Due Process Clause because no special
justification exists that outweighs the individual‟s constitutionally protected interest in avoiding
physical restraint.” Id. at 1077. In short, Zavala challenged the detention itself, not the length of
the detention, which is the issue in this case.
14

27
28

Notably, even the Mesa Verde numbers, which Dr. Levy notes “are distorted because of the
transfer of long-term detainees from other facilities,” note an average stay of 157.4 days, below
the 180-day period that the Ninth Circuit found significant.
24

Here, it cannot be said that the class is subject to a systemic prolongation of detention

1
2

which applies “generally to the class” which would make injunctive relief “appropriate respecting

3

the class as a whole,” as contemplated by Fed. R. Civ. P. 23(b)(2). With the exception of the two

4

named Plaintiffs, Plaintiffs‟ evidence shows that the vast majority of detainees are held for less

5

than three weeks. Based on the evidence in the record, Plaintiffs have failed to show that as a

6

class they have established a substantive due process claim based on systemic prolonged

7

detention. Thus, Defendants are entitled to summary judgment on this claim.15
2.

8

Procedural Due Process
a.

9

Actual Injury Requirement

The parties dispute whether Plaintiffs must show an actual injury in order to assert a

10

procedural due process claim, as was required in Lewis v. Casey. In Lewis, the Supreme Court

12
For the Northern District of California

United States District Court

11

found that the actual right at issue was not the right to a law library and legal assistance programs;

13

instead, access to a law library and legal assistance programs were a “means for ensuring a

14

reasonably adequate opportunity to present claimed violations of fundamental constitutional rights

15

to the courts.” 518 U.S. at 351 (quotation omitted). Thus, to bring a claim, the Supreme Court

16

found that the inmates had to show that they had actually been hindered in pursuing their legal

17

claims, i.e., by demonstrating that an inmate was unable to file a complaint or had a complaint

18

dismissed for failure to observe a technicality. Id. As applied in the instant case, Defendants

19

argue that Plaintiffs must show that telephone restrictions “have actually hindered Plaintiffs from

20

pursuing their cases or requests for release on bond.” Defendants Mot. at 28.
Plaintiffs in turn argue that Lewis is distinguishable because that case concerned sentenced

21

22

prisoners, whereas here Plaintiffs are civil detainees facing immigration proceedings. Plaintiffs

23
24
25
26
27
28

15

While the Court finds that there is no substantive due process claim, this does not preclude a
procedural due process claim. See Prieto-Romero v. Clark, 534 F.3d 1053, 1065 (9th Cir. 2008)
(“Even if Prieto-Romero‟s continued detention is permitted by statute, however, due process
requires „adequate procedural protections‟ to ensure that the government‟s asserted justification
for physical confinement „outweighs the individual‟s constitutionally protected interest in
avoiding physical restraint.‟”). This is particularly so in light of the discussion which follows
which concludes the injury requirement to make a procedural due process claims has a degree of
flexibility.
25

1

Opp. at 26. The Court agrees. In Benjamin v. Fraser, the Second Circuit declined to apply the

2

Lewis actual injury requirement to a case challenging conditions affecting attorney visitation, use

3

of restraints, restrictive housing, inmate correspondence, and law libraries. 264 F.3d 175, 179,

4

185 (2d Cir. 2001). First, the Second Circuit explained that Lewis did not concern a direct

5

constitutional right, but an opportunity to present claimed violations of constitutional rights. The

6

Benjamin case, however, concerned conditions which interfered with an individual‟s ability to

7

consult with counsel, which itself was a constitutional right. Id. Second, the Second Circuit

8

reasoned that the interest of a convicted prisoner is distinct from the interest of a pretrial detainee;

9

in short:

10

12
For the Northern District of California

United States District Court

11

13
14

The access claims at issue in Lewis concerned the ability of
convicted prisoners to attack their sentences, directly or collaterally,
and to challenge the conditions of their confinement. By contrast,
here we are concerned with the Sixth Amendment right of a pretrial
detainee, in a case brought against him by the state to utilize counsel
in his defense. It is not clear to us what “actual injury” would even
mean as applied to a pretrial detainee‟s right to counsel.

15

Id. at 186 (internal quotations and modifications omitted). In other words, “pretrial detainees need

16

access to the courts and counsel is not to present claims to the courts, but to defend against the

17

charges brought against them.” Id.

18

Here, Plaintiffs are not seeking phone access in order affirmatively to present

19

constitutional claims, like the prisoners in Lewis. Rather, Plaintiffs contend that phone conditions

20

have impaired their right to gather and present evidence in defending themselves against the

21

government‟s effort to deport them. In this context, detainees have a Fifth Amendment guarantee

22

to a full and fair hearing, and this includes access to counsel (of their own choosing). See Oshodi

23

v. Holder, 729 F.3d 883, 889 (9th Cir. 2013) (“It is well established that the Fifth Amendment

24

guarantees non-citizens due process in removal proceedings. Therefore, every individual in

25

removal proceedings is entitled to a full and fair hearing. A vital hallmark of a full and fair

26

hearing is the opportunity to present evidence and testimony on one‟s behalf.”) (internal

27

quotations omitted); Rios-Berrios, 776 F.2d at 862 (Although a deportation hearing is not a

28

criminal matter and [an alien] had no Sixth Amendment right to appointment of counsel at
26

1

government expense, due process mandates that [an alien] is entitled to counsel of his own choice

2

at his own expense under the terms of the [INA].”) (citation omitted).

3

Furthermore, like Benjamin, Plaintiffs are not convicted inmates but civil detainees who

4

are defending themselves in proceedings brought by the government. Thus, the Court finds Lewis

5

does not apply, and thus Plaintiffs are not required to show actual injury or actual hindrance of

6

detainees‟ ability to pursue their cases in order to assert a procedural due process claim.

7

Instead, under circumstances outside of Lewis, the Ninth Circuit has held that the court

8

looks not to whether the outcome of a hearing was actually affected by an alleged violation, but at

9

whether “the outcome of the proceeding may have been affected by the alleged violation.”

1076 (9th Cir. 2005) (“For us to grant the petition for review on due process grounds, Petitioner

12
For the Northern District of California

Colmenar, 210 F.3d at 971 (emphasis added); see also Zolotukhin v. Gonzales, 417 F.3d 1073,

11

United States District Court

10

must show prejudice, which means that the outcome of the proceedings may have been affected by

13

the alleged violation.”) (internal quotation omitted) (emphasis in original).

14

In Walters, the Ninth Circuit upheld the district court‟s finding that the INS‟s procedure for

15

obtaining waivers in document fraud cases violated the plaintiffs‟ rights to due process of law.

16

Walters v. Reno, 145 F.3d 1032, 1036 (9th Cir. 1998). There, the plaintiffs brought a class action,

17

alleging that the INS issued complex, confusing forms to aliens charged with violating the INA‟s

18

document fraud provisions, which failed to adequately inform aliens of the steps they had to take

19

in order to contest the charges brought against them. Id. In challenging the district court‟s

20

finding, the government argued that there was insufficient evidence that the plaintiff class suffered

21

prejudice as a result of the constitutionally deficient proceedings. Id. at 1044. The Ninth Circuit

22

found that the issue of prejudice “overlap[ped] with the question whether the plaintiffs suffered

23

actual injury to justify injunctive relief,” before explaining that plaintiffs had made the required

24

showing of prejudice. Id. at 1044 n. 7. It first reiterated that “[w]hen it is necessary to

25

demonstrate prejudice as a result of a constitutional violation, the alien must show that the

26

inadequate procedures occurred in a manner so as potentially to affect the outcome of the

27

proceedings.” Id. at 1044 (emphasis added) (citations omitted). Thus, “there must be plausible

28

scenarios in which the outcome of the proceedings would have been different, absent the
27

1

constitutional violation.” Id. (emphasis added).

2

Thus, Plaintiffs are not required to show actual injury, as defined by Lewis. Instead,

3

Plaintiffs need only establish that the outcome of immigration proceedings may have been affected

4

by the alleged violation. So defined, the Court finds that there is sufficient evidence of prejudice

5

to the class as a result of telephone restrictions. For example, Mr. Lyon stated in his December

6

2013 declaration that he was unable to obtain a police report he needed for his U-visa application,

7

as he was unable to call the East Palo Alto Police Department because the police did not take

8

collect calls. Lyon Dec. at ¶ 8. Mr. Lyon‟s wife, who was assisting him, also could not obtain the

9

police report because the police would only release the report to Mr. Lyon or his legal

counsel (which at the time of his declaration, he could not afford) that he could obtain the police

12
For the Northern District of California

representative, which he did not have at the time. Id. at ¶¶ 9, 11. It was not until he retained

11

United States District Court

10

report.

13

Similarly, B.M. testified that he was able to retain an attorney, but that he was not able to

14

get through to his attorney from the Housing Unit Phones because his attorney did not accept

15

collect calls. Docket No. 120-16 (B.M. Dec.) at ¶¶ 13, 14. Between June 16, 2014 and August 20,

16

2014, B.M. was only able to see his attorney once, when his attorney was at Contra Costa to visit

17

another detainee. Id. at ¶ 15. At this time, B.M.‟s attorney informed him that he had a hearing on

18

August 20, 2014, but they were otherwise unable to speak about what that hearing would entail.

19

Id. at ¶¶ 15-17. At the August 20, 2014 hearing, the IJ informed B.M. that he would need to get

20

documents from Kenya and Somalia; when B.M. explained it would be difficult to make those

21

calls from detention, the IJ said his attorney would help. Id. at ¶ 18. In September 2014, Contra

22

Costa opened the phone room, permitting free calls that were usually limited only to 5-10 minutes.

23

Id. at ¶ 21. B.M. was able to get in contact with his attorney more often, but communication was

24

still difficult because his attorney did not always answer his calls (which were unpredictable due

25

to the limited time and the number of other attorneys who needed to use the phone). Id. at ¶ 22.

26

In December 2014, B.M. learned from an ICE officer that the IJ denied asylum, after which

27

B.M.‟s attorney informed him that he would not help appeal the decision. Id. at ¶ 23. B.M. then

28

began calling free legal service organizations to find another attorney, and learned from a Centro
28

1

Legal de la Raza attorney that a large part of the reason why his asylum case was denied was

2

because he did not prove his evidence with available evidence. Id. at ¶ 24. B.M. states that his

3

attorney did not help him get the evidence to prove his identity (which he could not obtain himself

4

due to phone restrictions), and that B.M. did not realize how ineffective his attorney was because

5

he communicated with his attorney so rarely. Id. at ¶ 25. The Centro Legal de la Raza attorney

6

has since helped get B.M. released on bond and filed a motion to reopen the case based on

7

ineffective assistance of counsel. Id. at ¶ 26.

8

Other declarants have discussed the impacts of limited phone access on their ability to

9

gather evidence, although it is less clear what impact that failure to gather evidence had on the

documents, likely attributable to the gang prevention program‟s refusal to accept a call that stated

12
For the Northern District of California

outcome of a hearing. See O.A. Dec. at ¶ 14 (inability to contact a gang prevention program for

11

United States District Court

10

it was from an unspecified “inmate” at Yuba County Jail); Docket No. 120-11 (J.H. Dec.) at ¶ 12

13

(inability to contact the criminal court and Kern county public defender in order to work on

14

vacating his criminal conviction because the county offices hang up when they hear the recording

15

that the call is from a detention facility); I.P. Dec. at ¶¶ 6, 42-43 (delaying bond hearing by a

16

month because of the delay in gather evidence due to high phone costs; bond was granted at the

17

continued hearing); Docket No. 120-13 (H.S. Dec.) at ¶ 15 (inability to speak freely about his case

18

on Housing Unit phones because his claim for relief is based on sexual orientation, and expressing

19

fear that he would be harassed and physically attacked if his sexual orientation is discovered);

20

Docket No. 120-14 (F.L. Dec.) at ¶ 36 (fear of speaking about his case on Housing Unit Phones

21

because applying for a U-Visa and concerned about being physically attacked if other detainees or

22

county inmates learn that he is cooperating with the police); see also Berg Report at 6 (concluding

23

that “the telephone policies and practices challenged in this case significantly limit the ability of

24

detainees to retain and communicate with counsel and gather evidence for their cases”), 17 (“The

25

detainees I interviewed expressed frustration, resignation, and hopelessness related to the

26

difficulty of pursuing their cases with the limited telephone access provided to them. This

27

situation, many times, motivates detainees to simply sign removal papers”); Supp. Vincent Dec. at

28

¶ 13 (attorney declaration explaining hesitation to take on complex cases for detained immigrants
29

1

because “telephone access is too unreliable to provide adequate legal representation”); Docket No.

2

120-18 (Lee Dec.) at ¶ 12 (attorney declaration explaining that in her experience, “[i]n comparison

3

to my non detained clients, detained clients are prevented from playing an active role in their

4

removal proceedings because of the current telephone restrictions”); Docket No. 120-22 (Prasad

5

Dec.) at ¶ 12 (attorney declaration stating “[w]e regularly see detainees not represented by counsel

6

denied bond or discretionary relief who, in my experience, may not have been denied if they had

7

been able to contact family to obtain documents”).
This evidence, along with the nature and breadth of the systemic phone restrictions and

8

agencies, etc., are sufficient to establish a real risk for class members that the restrictions “may” or

11

“potentially” affect the outcome of removal proceedings; there are “plausible scenarios” in which

12
For the Northern District of California

their potential impact upon detainees‟ ability to communicate with counsel, relatives, government

10

United States District Court

9

outcomes are affected. Colmenar, 210 F.3d at 971; Zolotukhin, 417 F.3d at 1076; Walters, 145

13

F.3d at 1049.
Plaintiffs need not demonstrate every member of the class has suffered from an adverse

14
15

effect on the outcome of their renewal hearing. The Ninth Circuit has made clear that “[i]t is

16

sufficient if class members complain of a pattern or practice that is generally applicable to the

17

class as a whole. Even if some class members have not been injured by the challenged practice, a

18

class may nevertheless be appropriate.” Walters, 145 F.3d at 1047. This is particularly the case in

19

a Rule 23(b)(2) class action, where the defining feature is whether “the party opposing the class

20

has acted or refused to act on grounds that apply generally to the class . . . . ,” and whether

21

injunctive relief is appropriate respecting the class as a whole. 16 Fed. R. Civ. P. 23(b)(2)

22
16

23
24
25
26
27
28

By way of example, if a prison hospital had a policy of not sterilizing its equipment, resulting in
significantly increased risk of infection or spread of a disease (such as HIV), the fact that not every
class member or even the named plaintiff contracted the disease would not preclude an injunction.
Every person, indeed not even a majority of the class, need not be infected with a life-threatening
disease before relief may be granted. The purpose of an injunction under Rule 23(b)(2), after all,
is to prevent future injury that may occur as a result of the complained of policy. See DittimusBey v. Taylor, 244 F.R.D. 284, 291 (D.N.J. 2007) (prison-crowding case in which the Court found
that “Rule 23 does not require that the representative plaintiff have endured precisely the same
injuries that have been sustained by the class members, only that the harm complained of be
common to the class, and that the named plaintiff demonstrate a personal interest or threat of
injury that is real and immediate, not conjectural or hypothetical”).
30

1

(emphasis added). See Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988) (“That the claims

2

of individual class members may differ factually should not preclude certification under Rule

3

23(b)(2) of a claim seeking the application of a common policy.”); 7AA Charles Alan Wright et

4

al., Federal Practice and Procedure § 1775 (3d ed. 1998) (“All the class members need not be

5

aggrieved by or desire to challenge defendant‟s conduct in order for some of them to seek relief

6

under Rule 23(b)(2).”). As Professor Rubenstein explained:
The first requirement under Rule 23(b)(2) is that “the party opposing
the class has acted or refused to act on grounds that apply generally
to the class.” While the Rule looks for grounds that “apply
generally” to the class, it is well-settled that the defendant's conduct
described in the complaint need not be directed or damaging to
every member of the class. The framers of the Rule stated that:
“Action or inaction is directed to a class within the meaning of this
subdivision even if it has taken effect or is threatened only as to one
or a few members of the class, provided it is based on grounds
which have general application to the class.”

7
8
9
10

12
For the Northern District of California

United States District Court

11

Courts have followed the Advisory Committee‟s approach, finding
that certification of a Rule 23(b)(2) class is proper despite the fact
that not all class members may have suffered the injury posed by the
class representatives so long as the challenged policy or practice was
generally applicable to the class as a whole. The requirement
focuses on the defendant and questions whether the defendant has a
policy that affects everyone in the proposed class in a similar
fashion. That scrutiny ensures that the class‟s interests are related in
a manner that makes aggregate litigation appropriate -- because one
class member's litigation will invariably affect everyone in the class
-- and therefore efficient.

13
14
15
16
17
18

William B. Rubenstein et al., Newberg on Class Actions § 4:28 (5th ed.) (citations omitted).17

19
20
21

22
23
24
25
26
27
28

17

Thus, rights of the class under Rule23(b)(2) are not measured solely by the facts and
circumstances of the named representatives. For example, in reviewing mental health care
provided by the California prison system, the court in Coleman v. Wilson did not limit its factual
findings to the claims of the named plaintiffs; it considered the testimony of inmate witnesses and
declarations of expert witnesses, whose reports were based in part on interviews with numerous
inmates, unnamed members of the class. No. CIV S-90-0520 LKK JFM P, 1994 U.S. Dist. LEXIS
20786, at *9-12, *23 at fn. 15 (E.D. Cal. June 6, 1994), report and recommendation adopted as
modified by Coleman v. Wilson, 912 F. Supp. 1282, 1324 (E.D. Cal. 1995). Similarly, in Plata v.
Schwarzenegger, the district court looked at the system as a whole, giving a “few representative
examples from the testimonial and documentary evidence” of the effects of inadequate health care
in the California prison system; evidence was not confined to the named plaintiffs. Case No. C011351 TEH, 2005 U.S. Dist. LEXIS 43796, at *16-19 (N.D. Cal. Oct. 3, 2005); see also OrantesHernandez v. Meese, 685 F. Supp. 1488, 1507 (C.D. Cal. 1988) (reviewing testimony from class
members, not just the named plaintiffs, to determine there was a procedural due process violation);
Perez-Funez v. Dist. Dir., I.N.S., 619 F. Supp. 656, 657, 661 (C.D. Cal. 1985) (reviewing the
testimony of both the named plaintiffs and fourteen other class members to determine whether
plaintiffs were signing a voluntary departure form without being advised of their rights). Cf. Moss
31

1

Accordingly, the Court finds that based on the record, there is substantial undisputed

2

evidence of prejudice suffered by the class as a whole based on conduct which applies generally to

3

the class; this is sufficient to satisfy the injury requirement for a procedural due process claim.
b.

4

Legal Framework

Finding the injury requirement is satisfied starts but does not end the due process inquiry.

5
6

The Court must examine the merits of the constitutional claim, viewed in the context of a custodial

7

setting.

8

The parties dispute whether in reviewing Plaintiffs‟ due process claim, the Court should

requires that the court consider: (1) the interest at stake for the individual, (2) the risk of an

11

erroneous deprivation of the interest through the procedures used as well as the probable value of

12
For the Northern District of California

apply Mathews v. Eldridge‟s balancing test or Turner v. Safley‟s four-factor test. Mathews

10

United States District Court

9

additional or different procedural safeguards, and (3) the interest of the government in using the

13

current procedures rather than additional or different procedures. 424 U.S. 319, 224 (1976). In

14

contrast, Turner starts with the principle that “[a] prison regulation that impinges on an inmate‟s

15

constitutional right „is valid if it is reasonably related to legitimate penological interests.‟” Valdez

16

v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002) (quoting Turner v. Safley, 482 U.S. 78, 89

17

(1987)). In determining reasonableness, the court must consider four factors: (1) whether there is

18

a “valid, rational connection” between the prison regulation and the legitimate governmental

19

interest put forward to justify it; (2) whether there are alternative means of exercising the right that

20

remain open to prison inmates; (3) whether accommodation of the asserted constitutional right will

21

have significant impacts on guards, other inmates, and the allocation of prison resources generally;

22

and (4) whether ready alternatives are absent (or whether obvious, easy alternatives exist).

23

Turner, 482 U.S. at 89-90.

24

Mathews and Turner are not mutually exclusive; the application of one test does not

25
26
27
28

v. Lane, 471 F.2d 853, 854-55 (4th Cir. 1973) (rejecting trial court‟s conclusion that because the
plaintiff had not proved his discrimination case, the class action also failed because “the
subsequent dismissal or mootness of his individual claim . . . will not operate as a dismissal or
render moot the action of the class, or destroy the plaintiff‟s right to litigate the issues on behalf of
the class.”).
32

1

prohibit the use of the other. Instead, the Court finds that in the instant case, application of both

2

Mathews and Turner is necessary. As a predicate to applying the Turner four-factor test, the

3

Court must first find that there is a prison regulation that “impinges on inmates’ constitutional

4

rights.” Turner, 482 U.S. at 89 (emphasis added). If there is no such impingement, then the Court

5

need not reach the Turner four-factor test. The Court must therefore first apply the Mathews

6

balancing test in order to determine if Plaintiffs‟ due process rights have been impinged by the

7

telephone restrictions at issue. If the Court finds that Plaintiffs‟ constitutional rights have been

8

impinged, the Court will then apply the Turner four-factor test.

9

Plaintiffs contend Turner has no application to the case at bar. In Demery v. Arpaio, the

based on the installation of live-streaming webcams in a prison facility used exclusively to house

12
For the Northern District of California

Ninth Circuit declined to apply Turner in an action alleging violations of substantive due process

11

United States District Court

10

pretrial detainees. 378 F.3d 1020, 1024 (9th Cir. 2004). The court found that Turner was

13

inapposite because: (1) “Turner dealt with convicted prisoners, not pretrial detainees,” and (2)

14

“Turner involved an Eighth Amendment cruel and unusual punishment challenge, not a claim

15

brought under the Substantive Due Process Clause of the Fourteenth Amendment.” Id. at 1028-

16

29. However, although the Ninth Circuit has not expressly overruled Demery, the Ninth Circuit

17

has since applied the Turner four-factor test to pre-trial detainees. Pierce v. Cnty. of Orange, 526

18

F.3d 1190, 1209 (9th Cir. 2008); see also Bull v. City & Cnty. of S.F., 595 F.3d 964, 974 n.10 (9th

19

Cir. 2010) (en banc) (“We have never distinguished between pretrial detainees and prisoners in

20

applying the Turner test, but have identified the interests of correction facility officials responsible

21

for pretrial detainees as being „penological‟ in nature. [Citations] While penological interests in

22

punishment or rehabilitation may not be applicable outside of a prison setting, the penological

23

interest in security and safety is applicable in all correction facilities.”); United States v. Loughner,

24

672 F.3d 731, 751 (9th Cir. 2012) (“So long as Loughner is a pretrial detainee, and lawfully held,

25

his rights are limited by the facility‟s legitimate goals and policies, and his dangerousness to

26

himself or to others may be judged by the same standard as convicted detainees.”). The Ninth

27

Circuit has further acknowledged that the Supreme Court has “„made quite clear that the standard

28

of review [in Turner] applies to all circumstances in which the needs of prison administration
33

1

implicate constitutional rights.‟” Bull, 595 F.3d at 974 (quoting Washington v. Harper, 494 U.S.

2

210, 224 (1990)); see also Washington, 494 U.S. at 224 (principles articulated in Turner “apply in

3

all cases in which a prisoner asserts that a prison regulation violates the Constitution, not just those

4

in which the prisoner invokes the First Amendment.”).
The Court thus finds that the appropriate legal framework is to first apply the Mathews

5
6

balancing test to determine if the complained of phone restrictions would result in a putative

7

constitutional violation. If it does, the Court must apply Turner to determine whether the phone

8

restrictions which impinges upon due process rights nonetheless may be upheld because they are

9

“reasonably related to legitimate penological interests.”18 482 U.S. at 89.
c.

10

i.

11

Mathews and Constitutional Violation

The threshold question is whether the complained of regulations violate detainees‟

12
For the Northern District of California

United States District Court

Application

13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28

18

Plaintiffs contend, however, that they are unaware of any cases that have applied Turner
deference to detention conditions of civil detainees who alleged that their conditions impacted
procedural rights in pending civil proceedings. Docket No. 160 (Plaintiffs Supp.) at 1 fn. 1. As
discussed above, the Supreme Court has taken a broad view that Turner should apply to all
circumstances in which the needs of prison administration implicate constitutional rights, and that
Turner is a recognition of “the need to reconcile our longstanding adherence to the principle that
inmates retain at least some constitutional rights despite incarceration with the recognition that
prison authorities are best equipped to make difficult decisions regarding prison administration.”
Washington, 494 U.S. at 223-24. The Supreme Court has long recognized the government‟s
interest in “manag[ing] the facility in which the individual is detained . . . . For example, the
Government must be able to take steps to maintain security and order at the institution and make
certain no weapons or illicit drugs reach detainees.” Bell v. Wolfish, 441 U.S. 520, 540 (1979); see
also Turner, 482 U.S. at 84-85 (“Running a prison is an inordinately difficult undertaking that
requires expertise, planning, and the commitment of resources, all of which are peculiarly within
the province of the legislative and executive branches of government. Prison administration is,
moreover, a task that has been committed to the responsibility of these branches, and separation of
powers concerns counsel a policy of judicial restraint.”). In order to give the necessary deference
to the government‟s interests in institutional order and security, the Court will apply the Turner
four-factor test. Compare with Flemings v. Gray, 1:14-cv-01248 LJO DLB PC, 2015 U.S. Dist.
LEXIS 93433, at *9 (E.D. Cal. July 17, 2015) (reviewing claim for deprivation of property
without procedural due process and finding that “[a]uthorized deprivations of property are
permissible if carried out pursuant to a regulation that is reasonably related to a legitimate
penological interest); Casper v. Baker, 3:12-cv-00204-LRH-VPC, 2013 U.S. Dist. LEXIS 183058,
at *31 (D. Nev. Aug. 23, 2013), report and recommendation adopted by Casper v. Baker, 2014
U.S. Dist. LEXIS 3108 (D. Nev. Jan. 10, 2014) (same); Patrick v. Bonner Cnty. Sheriff’s Dep’t,
Case No. 2:11-cv-00113-EJL-REB, 2013 U.S. Dist. LEXIS 84027, at * (D. Idaho June 13, 2013)
(same); Dudley v. Cesolini, No. CV 11-0387-PHK-SMM (LOSA), 2012 U.S. Dist. LEXIS
190818, at *15 (D. Ariz. May 11, 2012) (same).
34

1

constitutional rights, in this case their due process right to a full and fair hearing and access to

2

counsel. See Compl. at ¶¶ 100-109. Again, Mathews requires that the court consider three factors:

3

(1) the interest at stake for the individual, (2) the risk of an erroneous deprivation of the interest

4

through the procedures used as well as the probable value of additional or different procedural

5

safeguards, and (3) the interest of the government in using the current procedures rather than

6

additional or different procedures. 424 U.S. at 224.

7

The Ninth Circuit has found that “conclusions regarding the due process . . . claims present

8

mixed questions of law and fact since they involve a determination of whether factual findings

9

satisfy undisputed rules of law.” Nat’l Ass’n of Radiation Survivors v. Derwinski, 994 F.2d 583,

disputes underlying legal determinations, such questions must be resolved by the factfinder. See

12
For the Northern District of California

587 (1992) (applying Mathews to due process claim). In particular, when there are factual

11

United States District Court

10

Wheaton v. Webb-Petett, 931 F.2d 613, 617 (9th Cir. 1991) (remanding plaintiff‟s due process

13

claim because the plaintiff “has raised genuine factual issues on whether his constitutional right to

14

pretermination process was respected”).

15
16

(a)

Plaintiffs‟ Interests

The parties do not appear to seriously dispute that Plaintiffs have a significant interest in

17

avoiding deportation, the ultimate consequence and hence interest at stake. In applying Mathews

18

in the immigration context, the Ninth Circuit has found that “[i]t is clear that the plaintiffs‟

19

interests in this case are significant.” Walters, 145 F.3d at 1043 (citing Landon v. Plasencia, 459

20

U.S. 21, 34 (1982) (alien‟s interest in deportation proceedings “is, without question, a weighty

21

one” because “[s]he stands to lose the right to stay and live in this land of freedom [and] may lose

22

the right to rejoin her immediate family, a right that ranks high among the interests of the

23

individual.”)). Thus, the Court finds that Plaintiffs have a significant interest.

24
25

(b)

Risk of Erroneous Deprivation of Rights

Plaintiffs next argue that the telephone restrictions create a risk of depriving Plaintiffs of

26

their rights because they “effectively den[y] Plaintiffs a means of accessing the counsel and

27

evidence needed to present their cases.” Plaintiffs Mot. at 30. However, as to this factor, the

28

Court finds that there are numerous factual disputes that make summary judgment on this issue
35

1

inappropriate at this time. First, there are outstanding disputes at each of the facilities as to the

2

adequacy of the private phone options at each of the Facilities. Specifically, the parties dispute

3

whether detainee calls are limited to attorneys only at both Contra Costa and Mesa Verde, the

4

availability of phone rooms at Contra Costa, and whether RCCC and Yuba‟s private phone options

5

are in fact private. The availability of private phone options can affect detainees in a number of

6

ways; for example, detainees have testified that their inability to communicate with their attorneys

7

was specifically the result of the lack of privacy, especially when the case involves sensitive

8

personal information that could lead to physical harm. E.g., Docket No. 120-12 (I.P. Dec.) at ¶¶

9

36-38 (RCCC detainee explaining difficulty in communicating with his attorney due to lack of

orientation, and did not want his sexuality known in a jail setting due to fear of harm from other

12
For the Northern District of California

privacy because his case involved sensitive personal information concerning his sexual

11

United States District Court

10

detainees or deputies); H.S. Dec. at ¶ 15 (RCCC detainee explaining difficulty using non-private

13

phones to discuss his case with his attorneys as his claim was based on his sexual orientation, and

14

had previously been harassed and physically attacked because of his sexual orientation). There is

15

also evidence that limiting the private phones to attorney calls only – another factual issue in

16

dispute – can impede individuals from gathering evidence, particularly individuals who have no

17

attorney or when the private phone is the only available phone option without a positive

18

acceptance requirement. See Lyon Dec. at ¶ 8 (Contra Costa detainee explaining inability to call

19

the East Palo Alto Police Department to obtain a police report he needed for his U-visa application

20

because the department did not accept collect calls); Docket No. 120-8 (M.G. Dec.) at ¶ 13

21

(RCCC detainee explaining inability to call extended family members, Fresno Police Department,

22

and corroborating witness to gather evidence for his U-visa case); Docket No. 120-6 (O.A. Dec.)

23

at ¶ 14 (Yuba detainee explaining inability to contact gang prevention program for evidence likely

24

because the program did not want to accept a call from an unspecified inmate at Yuba County

25

Jail); Docket No. 120-5 (R.K. Dec.) at ¶¶ 19-20 (Contra Costa detainee explaining inability to call

26

contacts at the Marin County Probation Department and Health and Human Services Department

27

for support in bond hearing because they would not accept a collect call). These disputes over the

28

actual availability of private phone options may affect the due process analysis.
36

The Court also finds that the record on notice is not fully developed. For example, during

1
2

the hearing on this matter, the parties debated whether Plaintiffs had demonstrated any harm based

3

on the ban on three-way calling. Docket No. 157 at 38:20-14. Defendants argued that Plaintiffs

4

had failed to “point[] to any facts where the request was made to make a three-way call to use an

5

interpreter for legal purposes,” to which Plaintiffs responded that detainees are informed by

6

policies and handbooks that three-way calling is prohibited, and thus would not think that is an

7

available option to request. Id.; see also id. at 47:4-14 (Defendants argument that there is no

8

evidence detainees asked to use the private phones to connect with counsel who were not on the

9

pro bono platform, to which Plaintiffs responded that many detainees did not even know there was

assuming that these options are available (which was not clear from the record), if detainees are

12
For the Northern District of California

a private phone option until informed by other detainees or an ACLU lawyer). In short, even

11

United States District Court

10

not informed of the availability and are even given legitimate reasons to believe that they are not

13

available (whether by wrong information being stated in detainee handbooks, postings, or staff), it

14

may be difficult for Defendants to argue that there is no evidence of harm simply because no

15

detainee has ever asked for an accommodation that they were explicitly told was prohibited.
Because there are outstanding factual disputes which may materially affect whether there is

16
17

a risk of erroneous deprivation, the Court finds that summary judgment is not appropriate at this

18

time.

19
20

(c)

Government Interest

Finally, the Court must consider the government‟s interest in using the current procedures

21

rather than additional or different safeguards. The Supreme Court has recognized that “[t]he

22

government‟s interest in efficient administration of the immigration laws at the border also is

23

weighty.” Landon, 459 U.S. at 34. It has also found that “[t]he Government also has legitimate

24

interests that stem from its need to manage the facility in which the individual is detained . . . . For

25

example, the Government must be able to take steps to maintain security and order at the

26

institution and make certain no weapons or illicit drugs reach detainees.” Bell, 441 U.S. at 540.

27

Furthermore, “[s]triking a balance between these two strong competing interests cannot be done in

28

the abstract.” Al Haramain Islamic Found., Inc. v. U.S. Dep’t of Treasury, 686 F.3d 965, 980 (9th
37

1

Cir. 2012). The Court must “carefully assess the precise „procedures used‟ by the government,

2

„the value of additional safeguards,‟ and „the burdens of additional procedural requirements.‟” Id.

3

The Court finds that there are a number of outstanding disputes with respect to the

4

government‟s interest. For example, there is an issue regarding the calling rates. Defendants do

5

not appear to provide any justification for the rates, instead arguing that they are irrelevant given

6

the FCC‟s regulations. Defendants Mot. at 13. Defendants argued that issues regarding cost “will

7

soon be largely irrelevant . . . because the Federal Communications Commission („FCC‟) has

8

undertaken regulation of inmate and detainee calling, which would impose caps on interstate and

9

intrastate calling rates and eliminate connection fees. Defendants Mot. at 13; FCC, 15-136, Rates

http://apps.fcc.gov/edocs_public/attachmatch/FCC-15-136A1.pdf (last accessed Feb. 2, 2016);

12
For the Northern District of California

for Interstate Inmate Calling Services, at ¶¶ 22, 101, available at

11

United States District Court

10

Docket No. 120-24, Exh. A (Wood Report) at 12 (table of rate caps). Plaintiffs‟ expert, Mr.

13

Wood, agreed that “the recent action by the FCC . . . represents a useful tool that will help ensure

14

reasonable rates for ICS [Inmate Calling Services].” Wood Report at 12. The rules and

15

requirements governing rates and connection fees were to be made effective on June 20, 2016.

16

Defendants Reply at 7 n.10; FCC, WC Docket No. 12-375, Wireline Competition Bureau

17

Announces the Comment Cycle and Effective Dates for the Inmate Calling Second Report and

18

Order and Third FNPRM, at 2, available at http://apps.fcc.gov/edocs_public/attachmatch/DA-15-

19

1484A1.pdf (last accessed Feb. 2, 2016). However, given the D.C. Circuit‟s decision staying

20

implementation of the FCC regulations, this issue will need to be fully developed to determine

21

what, if any, government interest exists for justifying the phone costs. See Docket No. 161-1

22

(order staying FCC, 15-136).

23

With respect to the automatic cutoffs at Contra Costa, Defendants argue that time limits on

24

call duration promote safety and security by reducing the possibility of fights for telephone access

25

while promoting equitable access to phones. Defendants Mot. at 15. Yet Plaintiffs have presented

26

evidence showing that Contra Costa‟s officials were unable to explain why there is a cutoff on the

27

Talton Free Call Platform, and stated that the cutoff “doesn‟t make any sense.” Ha Dec., Exh. 37

28

(Grant Dep.) at 77:4-18. Plaintiffs further argue that short cut-offs are also not applied across-the38

1

board; for example, Mesa Verde has a 180-minute limitation, which is only in place to prevent

2

people from forgetting to hang up the phone. Docket Yee-Garcia Dec., Exh. 60 (Talton Dep.) at

3

155:11-19 (explaining that the security precaution for the 180-minute limit is so that detainees

4

“can‟t leave the phone off the hook. You know, after they get on the phone, they just drop the

5

phone. Let‟s say they walk away, and the next day, you know, the clock is still ticking, you know.

6

So in other words, the call has to end at some point.”). It is unclear whether there is sufficient

7

justification where the limitations appear to vary widely. Given that all reasonable inferences

8

must be drawn against the non-moving party, summary judgment is not appropriate.

9

There is also a dispute as to whether there is any government interest in Contra Costa‟s

of detainees to obtain information if the recipient is not willing (or able) to pay for the call, even if

12
For the Northern District of California

requirement that Housing Unit Phones be paid for by the recipient, which has affected the ability

11

United States District Court

10

the detainee is willing to pay for the call. Defendants only explain that Contra Costa doesn‟t have

13

the ability to assign a pin number to the detainees, but is “currently exploring obtaining a new jail

14

management system.” Defendants Mot. at 15. It is not clear that this is a legitimate governmental

15

purpose, but Defendants at this juncture is entitled to the benefit of reasonable inferences.

16

Similarly, it is unclear whether the time restrictions on when detainees can access phones

17

are reasonably related to a government interest, particularly with respect to Contra Costa.

18

Defendants argue they have an interest in limited hours to ensure that violent or unruly individuals

19

are segregated, or to protect individuals from other detainees who may harm them. However, the

20

applicability of this policy to the Facilities raises some questions; as Plaintiffs point out, Contra

21

Costa imposes the greatest time restrictions on detainees use of their Housing Unit Phones (with

22

only 1.5 hours during regular business hours); yet Contra Costa has the lowest percentage of

23

medium-high and high risk prisoners. Plaintiffs Opp. at 14; see Shinners Dec., Exh. 32. The

24

record on this point is spare.

25

Finally, there is an overarching question of whether application of the ICE‟s 2011

26

Performance Based National Detention Standards (2011 PBNDS) could be readily implemented, a

27

question which goes to whether the government has an interest in using the current procedures

28

rather than additional or different procedures. See U.S. Immigration and Customs Enforcement,
39

1

Performance-Based National Detention Standards 2011, available at

2

https://www.ice.gov/detention-standards/2011 (last accessed Feb. 5, 2016). Currently, RCCC,

3

Yuba, and Contra Costa must comply with ICE‟s 2000 National Detention Standards (2000 NDS),

4

while Mesa Verde must comply with the 2011 PBNDS. Plaintiffs Mot. at 18; Hackett Report at ¶

5

5. Plaintiffs argue that the 2011 PBNDS “require many of the outcomes Plaintiffs seek in this

6

litigation.” Id. at 19. This includes reasonably priced telephone calls (2011 PBNDS at §

7

5.6.V.A.2); providing direct or free calls to offices, including federal and state courts, legal

8

representatives, legal services, and government offices to obtain relevant documents (2011

9

PBNDS at § 5.6.V.E); providing private legal calls (2011 PBNDS at § 5.6.V.F.2); allowing

telephone access opportunities, including in other languages (2011 PBNDS at § 5.6.V.C).

12
For the Northern District of California

incoming legal calls and messages (2011 PBNDS at § 5.6.V.J); and providing adequate notice of

11

United States District Court

10

Plaintiffs‟ expert, Mr. Berg, explains that while the 2000 NDS and 2011 PBNDS both “require

13

reasonable and equitable access to telephones and prohibit facilities from unduly limiting a

14

detainee‟s efforts to obtain legal representation, the newer standards are significantly more

15

detailed, which makes expectations for detention facilities more clear.” Berg Report at 20. Thus,

16

the 2011 PBNDS are “generally more rigorous than the 2000 NDS because ICE recognized that

17

there were opportunities for improvement and best practices had evolved since the issuance of the

18

2000 NDS.” Id. at 20 (citation omitted).

19

However, the parties‟ experts dispute whether the 2011 PBNDS can be readily

20

implemented. For example, Plaintiffs‟ expert opines that the fiscal and administrative costs to

21

adopt better procedures, such as the 2011 PBNDS, and hire additional staff would be minimal.

22

Berg Report at 26-29. Mr. Berg takes the daily income of the RCCC, Contra Costa, and Yuba

23

facilities for housing ICE detainees, and compares it with the average starting annual salary for a

24

correctional officer for these counties. Id. at 28. Based on these numbers, Mr. Berg contends that

25

it will take RCCC 4.3 contract days to pay for one correctional officer, Contra Costa 3.6 contract

26

days to pay for one correctional officer, and Yuba 2.7 days to pay for one correctional officer.

27

Defendants‟ expert, Mr. Hackett, counters that Mr. Berg‟s calculations ignore the costs of jail

28

operations and employee costs beyond base salary, such as benefits, recruitment, and training.
40

1

Hackett Report at ¶ 34. Mr. Hackett also argues that implementation of the 2011 PBNDS is

2

affected by factors other than cost, such as facility construction, geographic location, and staffing

3

limitations. Id. at ¶ 33.
There are disputes of material fact in the record as to the government‟s interest. This

4
5

together with the requirement that all reasonable inferences must be drawn against the moving

6

party where the record is inconclusive requires the summary judgment be denied. Moreover,

7

application of the Matthews balancing test is a mixed question of law and fact which is normally

8

for the trier of fact to decide. See Nat’l Ass’n of Radiation Survivors, 994 F.2d at 587.
ii.

9

Turner “Rationally Related to a Legitimate Penological Objective”

Defendants could satisfy the four-factor Turner test.19 Like the Mathews balancing test, the Ninth

12
For the Northern District of California

In addition to the dispute over the application of Mathews, there are disputes as to whether

11

United States District Court

10

Circuit has found that the Turner four factor test is a mixed question of law and fact. See

13

Friedman v. Arizona, 912 F.2d 328, 331 (9th Cir. 1990), superseded by statute on other grounds

14

(finding that whether a particular regulation “impermissibly restricts [the plaintiffs‟] first

15

amendment right is a mixed question of law and fact” and applying Turner). However, “[t]he

16

legitimacy of prison officials‟ asserted penological interests are findings of fact. Henderson v.

17

Terhune, 379 F.3d 709, 712 (9th Cir. 2004); see also Cal. First Amend. Coal. v. Woodford, 299

18

F.3d 868, 880 (9th Cir. 2002) (finding that the district court‟s findings on whether there was a

19

ready alternative to the challenged procedure under Turner constituted factual findings).
In Hrdlicka v. Reniff, the Ninth Circuit overturned the district court‟s grant of summary

20
21

judgment, finding that there were “questions of material facts” as to the district court‟s application

22

of Turner. 631 F.3d 1044, 1046 (9th Cir. 2011). There, the publisher of the magazine “Crime,

23

Justice & America” (CJA) brought suit against two county jails that refused to distribute

24

unsolicited copies of CJA to its inmates, alleging First Amendment violations. Id. After

25

recognizing the existence of a First Amendment interest, the Ninth Circuit looked at each of the

26
27
28

19

This is unsurprising, given that neither party briefed how Turner would apply in practice to the
instant case, as Defendants did not raise the issue until after briefing was completed.
41

1
2

Turner factors.
The first Turner factor, which requires a “valid, rational connection” between the prison

regulation is rationally related to a legitimate penological objective, we do not consider the other

5

factors.” Id. at 1051 (internal quotation omitted). The Ninth Circuit looked at each of the

6

justifications forwarded by the county jails. First, the jails asserted that refusing to distribute

7

unsolicited copies of CJA promoted jail security by reducing the likelihood of contraband entering

8

the jail and the amount of clutter (thereby reducing the risk of fires and promoting efficient cell

9

searches). While the Ninth Circuit did not question the importance of these goals, it found that the

10

defendant‟s general statements were “undercut by the specific evidence they offer in an attempt to

11

show the degree to which these purposes are actually served by a refusal to allow the requested

12
For the Northern District of California

regulation and the government interest, “is a sine qua non: If the prison fails to show that the

4

United States District Court

3

distribution of CJA.” Id. The Ninth Circuit pointed to one of the jail‟s decision to stop

13

distributing unsolicited copies of newspapers, noting that the decision was based on the monetary

14

cost and not security risks. Id. It also found that the other prison had admitted that inmates had

15

access to paper that they could use for improper purpose, and that there was no specific evidence

16

that distribution of CJA would increase the rate of misuse of paper. Id. at 1052. Second, the jails

17

asserted that allowing delivery of unsolicited copies of CJA would require additional staff time.

18

The Ninth Circuit rejected this as well, as there was no estimate of how many additional personnel

19

hours would be required for CJA to be delivered. Furthermore, neither jail had suggested that

20

unsolicited publications were more difficult to inspect than solicited publications. Id. at 1053.

21

Third, one of the jails argued that accepting unsolicited CJA would create a “slippery slope” that

22

would require the jail to accept other unsolicited publications. Id. However, the Ninth Circuit

23

pointed out that this “slippery slope” problem was not a concern when the jail accepted or ceased

24

accepting unsolicited copies of newspapers, and that there had only been three requests to

25

distribute unsolicited publications. Id. Finally, one of the jails contended that it had an interest in

26

maintaining control over advertising of bail in the jail, as the jail had an existing contract with an

27

organization to operate bulletin boards on which bail bond agents could post advertisements. Id.

28

The Ninth Circuit found that it was not clear how distribution of CJA would be inconsistent with
42

1

that contract, and that in any case, there was no legitimate penological interest “in protecting a

2

profit made by impinging on inmates‟ First Amendment rights.” Id.
The Ninth Circuit then reviewed the second Turner factor, which looked at whether other

3
4

avenues are available for the exercise of the asserted right. Id. Although the jails argued that CJA

5

could still be distributed to inmates who request it, “there is a material question of fact whether, as

6

a practical matter, Plaintiffs can effectively reach county jail inmates if they can delivery CJA only

7

upon request.” Id. at 1054. Specifically, the Ninth Circuit noted that it is difficult to create broad

8

awareness of CJA when inmate populations turn over quickly, resulting in many inmates having

9

left the jail before they could learn about CJA‟s existence, request it to be sent, and then receive it.

10

The Ninth Circuit also found “material questions of fact” as to the third Turner factor,

12
For the Northern District of California

United States District Court

11

Id.

which looks at the impact accommodation of the asserted constitutional right will have on guards

13

and other inmates. Id. Specifically, the Ninth Circuit explained that there were questions about

14

“whether, and to what degree, the jails should be forced to expend significant additional resources

15

if CJA was delivered by either of the two methods sought by Plaintiffs.” Id. For example, the

16

publisher had proposed delivering only one copy of CJA for every ten inmates each week, and

17

offered to either do a general delivery or individually addressed mailings. Id. The jails, in turn,

18

had not explained how mail inspectors would distinguish between a copy of CJA that is solicited

19

and that is not, or why a complete ban on unsolicited mail did not consume more prison resources

20

than accepting such mail if the jail had to compile subscription lists and compare incoming mail to

21

those lists. Id.

22

Finally, the Ninth Circuit analyzed the fourth Turner factor, which looked at whether there

23

was the existence of easy and obvious alternatives which would indicate that the challenged

24

regulation is an exaggerated response by prison officials. Id. “„This is not a “least restrictive

25

alternative” test: prison officials do not have to set up and then shoot down every conceivable

26

alternative method of accommodating the claimant‟s constitutional complaint.‟” Id. at 1054-55

27

(quoting Turner, 482 U.S. at 90-91). However, an alternative that fully accommodates the

28

asserted rights at de minimis cost suggests that the regulation does not satisfy the reasonable
43

1

relationship standard. Id. at 1055. As applied in Hrdlicka, the Ninth Circuit found that it was

2

undisputed that CJA was distributed in more than 60 countries throughout 13 states, including 32

3

California county jails, thus “suggest[ing] that the response of the two jails in this case may be

4

exaggerated.” Id. Further, the “weak, and to some degree contradictory, specific evidence”

5

offered by the jails in support of their cited penological purposes suggested that the challenged

6

policies were an exaggerated response. Id. Taken together, the Ninth Circuit concluded that the

7

jails were not entitled to summary judgment.
In the instant case, the parties raise similar questions as to whether the asserted regulations

8
9

are reasonably related to the penological purposes being asserted by Defendants. In general, the

facilities, including the maintenance of security and order at the institution. See Bell, 441 U.S. at

12
For the Northern District of California

Supreme Court has recognized that the government has legitimate interests in managing detention

11

United States District Court

10

540. There is also evidence that the government has an interest in controlling phone use in

13

particular, including to prevent inmates from making threatening or harmful calls to the

14

community. Shinners Dec., Exh. 33 (Berg Dep.) at 46:23-47:18, 50:14-20, 122:11-17; see also

15

generally Shinners Dec., Exh. 34 (Hackett Report).

16

However, as discussed above, there are several disputes as to specific justifications made

17

by Defendants for various technical limitations, such as whether there is a penological interest in

18

the time limits, Contra Costa‟s requirement that calls made from Housing Unit Phones be paid for

19

by a recipient, and time restrictions on when detainees can access phones. There is also a

20

significant question as to whether the 2011 PBNDS can be readily implemented, a question which

21

goes to whether Defendants‟ telephone policies are an “exaggerated response” where there is an

22

obvious alternative. Viewed as a whole, the Court finds that there are disputes of material fact

23

which make summary judgment improper in the instant case, particularly in view of the reasonable

24

inferences that must be drawn in the non-moving party‟s favor along with the fact that application

25

of Turner is a mixed question of law and fact.

26

D.

Right to Petition

27

Plaintiffs contend that per their right to petition the government for redress of grievances,

28

they have a right to obtain governmental records, benefits, or actions, as well as hire and consult
44

1

attorneys. Plaintiffs Mot. at 46. Defendants in turn contend that an application for immigrant

2

status is not a lawsuit or airing of a political grievance, but is an affirmative application for a

3

discretionary benefit from the government, which should not be considered a petition for redress

4

of grievances. Defendants Mot. at 36-37. However, the Ninth Circuit has found that “the First

5

Amendment extends to the right to petition an administrative agency . . . .” Nat’l Ass’n of

6

Radiation Survivors, 994 F.2d at 595 (concerning applications for Veterans‟ Administration

7

benefits based on exposure to ionizing radiation during service). Given the stakes at issue in

8

removal proceedings, the Court sees no reason why the right to petition does not apply here. The

9

Court therefore finds that the petition clause can extend to the immigration proceedings which

10

However, for the same reasons discussed with respect to Plaintiffs‟ procedural due process

12
For the Northern District of California

United States District Court

11

Plaintiffs allege are impacted by telephone restrictions.

clause, the Court finds that summary judgment on Plaintiffs‟ First Amendment claim is

13

inappropriate at this time. In National Association of Radiation Survivors, the Ninth Circuit found

14

that both the due process and First Amendment claims were about “meaningful access to the VA

15

benefits process,” such that “the focus of the First Amendment analysis is essentially the same as

16

that under the Due Process Clause.” 994 F.2d at 595. As the Ninth Circuit had already

17

determined that there was no due process violation, it summarily found that there was no First

18

Amendment violation. Id. As in National Association of Radiation Survivors, the focus of

19

Plaintiffs‟ First Amendment claim is essentially the same as that under the due process clause, as

20

both claims are related to how telephone restrictions affect detainees‟ ability to gather evidence to

21

present at their immigration hearing and to contact, retain, and consult with attorneys. See Compl.

22

at ¶¶ 103 (due process claim based on Defendants having “violated Plaintiffs‟ right to

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representation of counsel by denying and severely restricting Plaintiffs‟ ability to make telephone

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calls to locate, consult with, and retain counsel, and Plaintiffs‟ ability to communicate with

25

retained counsel”); 108 (due process claim based on Defendants having “violated Plaintiffs‟ right

26

to a full and fair hearing by denying and severely restricting Plaintiffs‟ ability to make telephone

27

calls to gather information and obtain evidence in support of their immigration cases); 112 (First

28

Amendment claim based on Defendants having “violated Plaintiffs‟ right to petition the
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1

government by denying and severely restricting the telephone access necessary to seek legal

2

representation and obtain documents and evidence in support of their applications for immigration

3

benefits”). For the reasons the Court denies summary judgment on Plaintiffs‟ procedural due

4

process claim, it denies summary judgment on the First Amendment claim.
IV.

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6

CONCLUSION

The Court GRANTS Defendants‟ motion for summary judgment with respect to Plaintiffs‟

7

INA statutory claims and substantive due process claims. Based on undisputed facts, the Court

8

finds Plaintiffs have satisfied the injury requirement for a procedural due process claim. However,

9

the Court DENIES the cross-motions for summary judgment with respect to Plaintiffs‟ procedural

10

due process and First Amendment claims for the reasons stated above.
Having viewed the record, the Court observes that there do not appear to be many issues of

12
For the Northern District of California

United States District Court

11

dispute with respect to present conditions in the Facilities. The primary factual disputes under the

13

Matthews analysis concern, as the Court noted, the availability of private phone options and how

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much notice is provided to detainees about the available phone options. As to Turner, there are a

15

number of factual disputes and an inclusive record relative to the justification and penological

16

interests asserted by Defendants.

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The Court thus ORDERS the parties to meet and confer, in order to reach a stipulation to

18

undisputed facts (as found and set forth in this Order) for trial and to determine which specific

19

facts need to be tried. Those areas should be limited in scope as indicated herein, and the evidence

20

for trial herein shall be so limited. The Court will also set a Case Management Conference for

21

March 23, 2016 at 10:00 a.m. to delineate the scope and nature of the trial.

22

This order disposes of Docket Nos. 120 and 139.

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IT IS SO ORDERED.

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Dated: March 18, 2016
______________________________________
EDWARD M. CHEN
United States District Judge
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