Ashker et al v. Schwarzenegger et al

Filing 1028


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 TODD ASHKER, et al., 5 6 7 8 Case No. 09-cv-05796-CW Plaintiffs, v. GOVERNOR OF THE STATE OF CALIFORNIA, et al., Defendants. ORDER GRANTING PLAINTIFFS' MOTION REGARDING VIOLATION OF SETTLEMENT AGREEMENT PROVISION REQUIRING RELEASE OF CLASS MEMBERS TO GENERAL POPULATION United States District Court Northern District of California 9 (Dkt. No. 993) 10 11 Plaintiffs filed a motion for de novo review of the 12 magistrate judge’s order regarding violation of the Settlement 13 Agreement provision requiring release of class members to the 14 General Population. 15 GRANTS Plaintiffs’ motion to the extent that Plaintiffs must 16 receive more out-of-cell time than they received in the Pelican 17 Bay SHU. 18 the CDCR’s regulations and practices with respect to Level IV 19 general population inmates, as well as its constitutional 20 obligations. 21 Having considered the papers, the Court They should receive out-of-cell time consistent with Pursuant to the Settlement Agreement, the parties agreed 22 that, if an inmate was not “found guilty of a SHU-eligible rule 23 violation with a proven STG nexus” within 24 months, then he 24 should be “released from the SHU and transferred to a General 25 Population level IV 180-design facility, or other general 26 population institution consistent with his case factors.” 27 Settlement Agreement ¶ 25. 28 to remove Plaintiffs from detention in the SHU, where they were The Settlement Agreement was intended isolated in a cell for twenty-two and a half to twenty-four hours 2 a day. 3 to enforce the Settlement Agreement under either paragraphs 52 or 4 53, which require Plaintiffs to show “current and ongoing 5 violations” of the Eighth Amendment or the Fourteenth Amendment 6 on a systemic basis, or other substantial noncompliance with the 7 terms of the Agreement. 8 Plaintiffs have shown that many Plaintiffs spend an average of 9 United States District Court Northern District of California 1 less than an hour of out-of-cell time each day, which is similar Second Amended Complaint ¶¶ 3, 63. Plaintiffs may seek Settlement Agreement ¶¶ 52, 53. 10 to the conditions they endured in the SHU. 11 Samuel Miller (Miller Decl.), Ex. 2; Reply Declaration of Samuel 12 Miller (Miller Reply Decl.) ¶¶ 2-3. 13 than the amount of time a general population inmate spends out- 14 of-cell, which Defendants represented was a minimum of ten hours 15 a week. 16 Transcript) at 53:24. 17 Settlement Agreement. 18 See Declaration of This is substantially less Miller Reply Decl., Ex. B (July 20, 2016 Court This demonstrates a violation of the Defendants are hereby ordered to meet and confer with 19 Plaintiffs’ representatives and their counsel with the goal of 20 presenting a proposed remedial plan for Court approval. 21 matter is referred to Magistrate Judge Illman to mediate the meet 22 and confer. 23 own respective proposed remedial plans. 24 plans are to be submitted within seven days after the meet and 25 confer session, which shall be scheduled as quickly as feasible. 26 27 The Absent agreement, the parties shall present their The joint or separate IT IS SO ORDERED. Dated: July 3, 2018 CLAUDIA WILKEN United States District Judge 28 2

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