Ashker et al v. Schwarzenegger et al

Filing 1695

ORDER by Judge Robert M. Illman denying 1591 Motion to Exclude Expert Report; denying 1601 Enforcement Motion; denying [1663-3] Discovery Dispute Letter Brief; denying 1667 Enforcement Motion. (rmilc2, COURT STAFF) (Filed on 9/6/2022)

Case 4:09-cv-05796-CW Document 1695 Filed 09/06/22 Page 1 of 8

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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TODD ASHKER, et al.,

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Plaintiffs,

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v.
MATHEW CATE, et al.,
Defendants.

Case No. 09-cv-05796-CW (RMI)
ORDER RE: PENDING RETALIATION
MOTIONS, AND ASSOCIATED
EVIDENTIARY MOTIONS
Re: Dkt. Nos. 1591, 1601, 1663-3, 1667

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United States District Court
Northern District of California

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Now pending before the court are two unrelated enforcement motions that allege certain

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retaliatory acts on Defendants’ part by virtue of two individual class-members’ activism and

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involvement in this case; and, as to one of those motions, Plaintiffs have filed two separate

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evidentiary motions (one of which seeks additional discovery, while the other seeks the exclusion

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of an expert report on which Defendants have based some of their arguments). Due to specific

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concerns regarding the safety of the two individual class-members, as well as more general

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concerns for institutional security, the Parties’ arguments and evidence have been filed under seal;

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and, given that this order will be filed publicly, the order will venture in large part to incorporate

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the Parties’ arguments by reference and citation rather than to narrate those details here. Also,

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pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the undersigned

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finds that the above-mentioned matters are adequately briefed and suitable for disposition without

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oral argument. For the reasons described herein, Plaintiffs’ motions are denied.

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As to the first class-member’s (hereafter, “Prisoner-1”) retaliation motion (dkt. 1594-2

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*SEALED*), this matter was referred to the undersigned in January of 2019 (see dkt. 1118

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*SEALED*) for resolution and the parties were instructed to “file briefs pursuant to a schedule to

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be determined by” the undersigned. Id. at 10. The referral order also provided that “[i]f there are

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any new determinations or investigations concluded relating to [Prisoner-1’s] placement,

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Defendants are hereby ordered to produce such records to Plaintiffs’ counsel within twenty-one

United States District Court
Northern District of California

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days of this Order or within twenty-one days of when such document is created.” Id. Following

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that referral, along with its establishment of a narrow scope of discovery, the undersigned twice

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expanded the scope of that discovery substantially. See Order of August 9, 2019 (dkt. 1203

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*SEALED*), and Order of November 12, 2020 (dkt. 1396). Thereafter, on August 30, 2021, when

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it appeared to the undersigned that the discovery period for Prisoner-1’s retaliation motion seemed

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to be dragging on for too many years, the undersigned finally imposed a discovery cutoff date and

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established the briefing schedule that had been contemplated in the original referral order. See

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Order of August 30, 2021 (dkt. 1516) (establishing a discovery cutoff date and setting a firm

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briefing schedule for Prisoner-1’s retaliation motion). In connection with Prisoner-1’s retaliation

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motion, Plaintiffs and Defendants have presented a jointly-filed letter brief setting forth a

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discovery dispute that asks (from Plaintiffs’ perspective) whether the establishment of a discovery

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cutoff date and the setting of a briefing schedule by the undersigned has “supplanted” the district

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judge’s order “requiring CDCR to produce documents relating to each of [Prisoner-1’s] housing

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reviews,” presumably into perpetuity. See Ltr. Br. (dkt. 1663-3 *SEALED*) at 2. The undersigned

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does not see any need for extensive discussion on this issue. When Judge Wilken referred this

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matter to the undersigned, and instructed the Parties to file briefs pursuant to a schedule to be

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determined by the undersigned (while also providing for limited preliminary discovery by

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Plaintiffs), Plaintiffs’ interpretation of the interaction of those two provisions, as permitting

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permanent discovery into perpetuity (even beyond the briefing schedule for which that discovery

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was afforded in the first place) is disagreeable. Instead, the undersigned interprets those two

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provisions – harmoniously with one another – such that Plaintiffs were afforded preliminary

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discovery on a limited topic, subject to a briefing schedule that would be established by the

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undersigned. The undersigned finds that inherent in the establishment of that briefing schedule is a

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discovery cutoff. Therefore, for that reason, as well as for the reasons expounded by Defendants

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(see id. at 4-6), Plaintiff’s request for further discovery in support of Prisoner-1’s retaliation

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motion, which was referred years ago and that has already been fully briefed and is ripe for

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decision, is DENIED. If Plaintiffs wish to avail themselves of still further discovery in the event

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that they decide to seek review of this order (as they have so indicated – see id. at 3), they are free
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United States District Court
Northern District of California

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to renew their request for more discovery before the presiding judge when seeking such review.
A second threshold matter to be considered in connection with Prisoner-1’s retaliation

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motion is Plaintiffs’ motion to exclude the expert report of a prison guard which Defendants

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maintain is “important for understanding the specialized issues in this case, including the rules of

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[a particular] prison gang and the implication of violating those rules: the actual reason [Prisoner-

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1] was kept in restricted housing.” See Defs.’ Opp. (dkt. 1626-1 *SEALED*). The gist of

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Plaintiffs’ argument about this report is: that the prison guard is not a suitable expert witness

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because that person is a CDCR employee; that the guard’s opinion to the effect that Prisoner-1

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cannot be housed outside of restrictive housing because of safety concerns is nothing more than a

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predetermined conclusion in search of evidentiary support; that the guard ignored contrary

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evidence; that the conclusion was unreliable because it was not based on sufficient facts or data,

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and that it did not follow any discernible methodology; that the source material was unreliable

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because the opinion rested – at least in part – on confidential memoranda; and, that the report is

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unreliable because its results are not replicable. See Pls.’ Mot. (dkt. 1589-2 *SEALED*) at 2-3, 5-

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11. In short, Plaintiffs suggest that the report should be excluded because it is unreliable and

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irrelevant. Id. at 3.

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Defendants then note that: Plaintiffs have not challenged the guard’s qualifications as an

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expert on the particular prison gang in question; that the guard’s testimony is important to

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understanding the issues surrounding the prison gang in question, including the dangers posed to

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Prisoner-1 by that gang’s perception that Prisoner-1 has violated the gang’s rules – giving rise to

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what Defendants’ contend to be the non-retaliatory reason that Prisoner-1 must be housed in a

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restrictive setting such as to effectively guarantee his safety from violence at the hands of that

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gang. See Defs.’ Opp. (dkt. 1626-1 *SEALED*) at 5. Noting that the guard’s expert report

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regarding this prison gang’s rules and culture can help the court understand what is not scientific

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or technical but nevertheless specialized knowledge – Defendants provide a wealth of citations

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showing decades of authority for courts admitting expert testimony about gang rules and practices.

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Id. at 6-7. Defendants then set forth the support for the guard’s opinion being based on extensive

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penological experience and institutional knowledge. Id. at 8-9. Lastly, Defendants correctly point
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out that many of Plaintiffs’ complaints about the report are more properly addressed to the weight

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of the evidence rather than its admissibility. Id. at 9-11. In short, for all the reasons expounded by

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Defendants (see id. at 5-11) the court finds that this testimony – regarding gang rules and practices

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– is indeed the sort of specialized knowledge that will assist the undersigned in determining the

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facts that are at issue in Prisoner-1’s retaliation motion; that the testimony is based on sufficient

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data for present purposes; that it is the product of reliable methods and principles given the present

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context (whether or not the assigned housing of Prisoner-1 was based on legitimate penological

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concerns); and, that the author of the opinion reliably applied those principles and methods to the

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facts of this case – as contemplated by F.R.E. 702. Accordingly, Plaintiffs’ request to strike the

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United States District Court
Northern District of California

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report is DENIED.
Turning to the merits of Prisoner-1’s retaliation motion, Plaintiffs contend that Prisoner-1’s

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housing placement in restrictive housing is retaliatory and based on Prisoner-1’s participation in

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this case rather than being based on legitimate penological reasons – essentially, Plaintiffs contend

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that Defendants’ stated concerns for Prisoner-1’s safety are mere pretext and that his housing

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placement is pure retaliation for having participated in activism and litigation against Defendants.

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See generally Pls.’ Mot. (dkt. 1574-2 *SEALED*) at 9-33. Plaintiffs’ case for retaliation calls for

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a great deal of inference and deduction on the court’s part – all of which the undersigned finds to

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be unreasonable and unwarranted. The gist of the support for Plaintiffs’ retaliation argument

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includes the following background: a narration of Prisoner-1’s involvement in this litigation (id. at

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9-10); a description of Prisoner-1’s past involvement with prison officials dealing with Prisoner-

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1’s own concerns for the safety of his loved one(s) and his efforts to communicate with them by

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choosing to “enter the debriefing process,” while claiming that he reportedly “had no real intention

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of debriefing” (id. at 10-11); allegations that prison staff then spread false rumors (which are

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suggested to have come to the attention of his former confederates in a particular prison gang)

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about Prisoner-1’s attempted or desired cooperation with prison gang investigations (id. at 13, 18,

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21-22, 26, 27-28, 30, 32); a lengthy history of back-and-forth decisions by various prison

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authorities regarding concerns – or, sometimes, the lack thereof –for Prisoner-1’s safety if not kept

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in restrictive housing (id. at 10-11, 14-18, 19-21); and, the mixed results from numerous safety
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Northern District of California

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investigations by various prison authorities concerning the existence of threats to Prisoner-1’s

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safety (id. at 11-14). By way of argument, Plaintiffs contend that Prisoner-1’s placement in

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restrictive housing constitutes an adverse action (id. at 21-22); that his constitutionally protected

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conduct is causally connected to the adverse action that placed Prisoner-1 in restrictive housing

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(id. at 22-27); and, that Prisoner-1’s placement in restrictive housing has caused substantial harm

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due to having been undertaken without a valid penological purpose (id. at 27-30). Lastly, Plaintiffs

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once again ask that Defendants’ failure to retain certain records constitutes willful spoliation of

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evidence warranting an adverse inference. See id. at 31. By way of remedy, Plaintiffs ask for

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injunctive relief, such that would constitute overruling CDCR’s safety concerns for Prisoner-1

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while ordering CDCR to re-house that person in a general population unit somewhere within the

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state’s prison system. See id. at 31-33.

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First, for the reasons stated by Defendants (see Defs.’ Opp. (dkt. 1627-1 *SEALED*) at

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28-29, n. 12), Plaintiffs’ argument that Defendants’ failure to promulgate a policy to preserve

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recordings used to generate confidential memoranda entitles Plaintiffs to an adverse inference that

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automatically proves Prisoner-1’s retaliation claim is without merit. Because the undersigned finds

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that there has been no willful spoliation here, and for the reasons stated by Defendants (see id.),

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Plaintiffs’ request for an adverse evidentiary inference is DENIED. Second, the undersigned

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agrees with Defendants that none of the “allegedly retaliatory actions of which [Plaintiffs]

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complain [were] taken because of [Prisoner-1’s] protected conduct, [or] that [Prisoner-1’s]

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housing decisions failed to advance legitimate penological goals, or that CDCR staff spread

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rumors about [Prisoner-1].” See generally id. at 18-30. In short, the undersigned is generally

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persuaded by Defendants’ arguments because the undersigned is of the opinion that Plaintiffs have

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failed to demonstrate retaliatory animus, or frankly any motivation other than legitimate

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penological concerns, for Prisoner-1’s housing assignment (as meticulously set forth in

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Defendants’ brief in opposition). See generally dkt. 1627-1 *SEALED* at 6-30. To put it in

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Defendants’ words, “CDCR’s assessments of threats to [Prisoner-1’s] life all stem from [Prisoner-

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1’s] violation of [a prison gang’s] rules for which there are deadly consequences[;] Plaintiffs

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conflate their disagreement with CDCR’s assessments with unconstitutional retaliation, despite no
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evidence of any action taken because of [Prisoner-1’s] protected conduct . . . [instead,] by

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requesting to debrief, [Prisoner-1] placed [himself or herself] in danger of being targeted for

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assault or murder by the [prison gang in question].” See id. at 6.

United States District Court
Northern District of California

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Additionally, the gravity of this situation should not go without mention as it likely

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implicates matters of life and death. In such circumstances, the undersigned believes that it is

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imperative to tread carefully as a wrong decision could result in Prisoner-1’s murder. As the

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undersigned has pointed out before, running a prison system is perhaps unlike any other endeavor

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in modern society if only because, pursuant to the Eighth Amendment, prison officials are charged

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with “tak[ing] reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer,

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468 U.S. 517, 526-27 (1984) (emphasis added); see also DeShaney v. Winnebago County, 489

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U.S. 189, 199-200 (1989) (“[W]hen the State takes a person into its custody and holds him there

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against his will, the Constitution imposes upon it a corresponding duty to assume some

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responsibility for his safety and general well-being.”). Of course, in the prison context, the most

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difficult part of guaranteeing prisoners’ safety is the Herculean task of protecting prisoners from

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their fellow prisoners. See e.g., Farmer v. Brennan, 511 U.S. 825, 833-34 (1994). As the

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undersigned sees it, the staggering difficulty of guaranteeing the safety of prisoners from violence

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that might be visited upon them by their fellow prisoners necessarily calls for a measure of

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deference when evaluating prison officials’ assertions of prisoner safety as a justification for

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housing assignments. In other words, if the undersigned were to give Plaintiffs the benefit of the

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doubt by rejecting the expert witness prison guard’s relevant and reliable gang expertise, by

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crediting what the court views to be a series of unreasonable inferences and unwarranted

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deductions, and by following Plaintiffs down a path that the undersigned believes to be dotted

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with a series of logical leaps – after which, the court would be expected to force Defendants to re-

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house Prisoner-1 in confines that appear to be clearly attended with grave threats to Prisoner-1’s

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life and limb, the undersigned would in effect be unduly interfering with CDCR’s ability to

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effectively discharge its constitutional duty to guarantee Prisoner-1’s safety (let alone the safety of

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prison staff and other prisoners who might become embroiled in any potential attack on Prisoner-

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1). For these reasons, in addition to those expounded by Defendants, Plaintiffs’ enforcement
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motion as to Prisoner-1 is DENIED because while Plaintiffs describe Prisoner-1’s activism and

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participation in this litigation and his or her housing in a restricted facility, Plaintiffs fail to

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convincingly establish any logical connection between the activism or the participation in

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litigation and Defendants’ decision to house Prisoner-1 in a restricted facility.

United States District Court
Northern District of California

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The undersigned will now turn to the final pending matter that is ripe for decision –

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namely, a retaliation motion filed by another class member (“Prisoner-2”). See Pls.’ Mot. (dkt.

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1665-2 *SEALED*); Defs.’ Opp. (dkt. 1671-2 *SEALED*); and, Pls.’ Reply (dkt. 1678-2

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*SEALED*). Plaintiffs again set the stage by narrating the details of Prisoner-2’s activism and

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involvement in this litigation (see Pls.’ Mot. (dkt. 1665-2 *SEALED*) at 7-8) as well as certain

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details pertaining to Prisoner-2’s health and his housing at a particular facility (see id. at 8-9).

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Prisoner-2 was recently involved in a certain disciplinary matter wherein Plaintiffs contend that

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Prisoner-2 was falsely accused of assaulting someone (“Victim-1”) about whom Prisoner-2 had

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reportedly lodged a complaint on grounds that Victim-1 had bullied another person. See id. at 9-

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11. As a result of these allegations, Prisoner-2 was found guilty of battery and disciplined by

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Defendants. Id. Plaintiffs allege that this disciplinary action was groundless and that it was mere

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pretext for retaliating against Prisoner-2 for having participated in this litigation (see id. at 12).

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Plaintiffs also allege certain other retaliatory treatment including an allegation that a nurse’s

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assistant “verbally threatened [Prisoner-2] and his family’s lives” and that the same nurse’s

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assistant maliciously failed to clean Prisoner-2 after Prisoner-2 suffered a digestive accident. Id. at

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11. Plaintiffs allege that they have offered sufficient “evidence garnered by [Prisoner-2] and [his

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or her] counsel thus far to establish a prima facie case that there has been harmful adverse action

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by a state actor with a causal relationship to constitutionally protected conduct,” such as to warrant

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discovery and further briefing. See id. at 13-18. Specifically, Plaintiffs seek any and all

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documentation that three particular staff members sent, received, took, or reviewed regarding

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Prisoner-2 from mid-2020 through the present; any and all documentation that any CDCR

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personnel sent, received, took, or reviewed regarding or referencing the battery for which

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Prisoner-2 was deemed guilty; and, all documentation concerning any investigation, interviews,

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inquiries, or conclusions (including documentation possessed by certain non-parties to the
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Northern District of California

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litigation such as a county sheriff, the state public health department, and others) which regarded

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or referenced the battery for which Prisoner-2 was deemed guilty. Id. at 17-18. Defendants

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contend that the motion is due to be denied: (1) because a state prisoner cannot use 42 U.S.C. §

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1983 to challenge the fact or duration of his confinement because such an action lies at the core of

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habeas corpus (see Defs.’ Opp. (dkt. 1671-2 *SEALED*) at 9); (2) because the actions of which

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Plaintiffs complain were undertaken by private parties at a private facility (see id. at 11-13); (3)

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because Plaintiffs fail to state a prima facie claim for retaliation because CDCR’s disciplinary

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actions furthered a legitimate penological goal (id. at 13-16); and, (4) that if the court were to

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permit discovery, Plaintiffs’ requests should be narrowed (id. at 16-17). As was the case with

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Prisoner-1’s retaliation arguments, the court finds that Prisoner-2’s arguments are also based on

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unwarranted and unreasonable inferences and deductions, combined with leaps of logic. At

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bottom, the court agrees with Defendants (see id. at 13-14) in finding: that Plaintiffs have failed to

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set forth any particular facts that Prisoner-2 expects to uncover through discovery; that Plaintiffs

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have failed to identify any specific facts tending to show that whatever evidence they seek actually

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exists; that, putting aside Plaintiffs’ conclusory statements and unreasonable inferences and

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deductions, Plaintiffs have failed to establish – even in prima facie form – any indication that any

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of the government action involved in Prisoner-2’s disciplinary matter was fueled by retaliatory

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animus rather than by legitimate penological goals. For that reason, as well as for the reasons set

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forth by Defendants (see id. at 5-18), Plaintiffs’ request for discovery is DENIED and Plaintiffs’

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enforcement motion as to Prisoner-2’s disciplinary matter is likewise DENIED because while

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Plaintiffs set forth Prisoner-2’s activism and participation in this litigation and the details of his or

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her disciplinary matter related to the assault in question, Plaintiffs fail to convincingly establish

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any logical connection between Prisoner-2’s activism or participation in litigation and Defendants’

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decision to discipline Prisoner-2 for having committed an assault.

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IT IS SO ORDERED.
Dated: September 6, 2022.

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ROBERT M. ILLMAN
United States Magistrate Judge

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