Ashker et al v. Schwarzenegger et al

Filing 1028

ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS' 993 MOTION REGARDING VIOLATION OFSETTLEMENT AGREEMENT PROVISION REQUIRING RELEASE OF CLASS MEMBERS TO GENERAL POPULATION.(ndrS, COURT STAFF) (Filed on 7/3/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TODD ASHKER, et al.,

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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

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(Dkt. No. 993)
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Plaintiffs filed a motion for de novo review of the

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magistrate judge’s order regarding violation of the Settlement

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Agreement provision requiring release of class members to the

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General Population.

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GRANTS Plaintiffs’ motion to the extent that Plaintiffs must

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receive more out-of-cell time than they received in the Pelican

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Bay SHU.

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the CDCR’s regulations and practices with respect to Level IV

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general population inmates, as well as its constitutional

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obligations.

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Having considered the papers, the Court

They should receive out-of-cell time consistent with

Pursuant to the Settlement Agreement, the parties agreed

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that, if an inmate was not “found guilty of a SHU-eligible rule

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violation with a proven STG nexus” within 24 months, then he

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should be “released from the SHU and transferred to a General

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Population level IV 180-design facility, or other general

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population institution consistent with his case factors.”

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Settlement Agreement ¶ 25.

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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

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a day.

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to enforce the Settlement Agreement under either paragraphs 52 or

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53, which require Plaintiffs to show “current and ongoing

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violations” of the Eighth Amendment or the Fourteenth Amendment

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on a systemic basis, or other substantial noncompliance with the

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terms of the Agreement.

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Plaintiffs have shown that many Plaintiffs spend an average of

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United States District Court
Northern District of California

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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.

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to the conditions they endured in the SHU.

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Samuel Miller (Miller Decl.), Ex. 2; Reply Declaration of Samuel

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Miller (Miller Reply Decl.) ¶¶ 2-3.

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than the amount of time a general population inmate spends out-

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of-cell, which Defendants represented was a minimum of ten hours

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a week.

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Transcript) at 53:24.

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Settlement Agreement.

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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

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Plaintiffs’ representatives and their counsel with the goal of

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presenting a proposed remedial plan for Court approval.

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matter is referred to Magistrate Judge Illman to mediate the meet

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and confer.

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own respective proposed remedial plans.

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plans are to be submitted within seven days after the meet and

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confer session, which shall be scheduled as quickly as feasible.

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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

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