Ashker et al v. Schwarzenegger et al

Filing 191

ORDER by Judge Claudia Wilken DENYING 160 MOTION TO DISMISS. (ndr, COURT STAFF) (Filed on 4/9/2013)

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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 No. C 09-5796 CW Plaintiffs, ORDER DENYING MOTION TO DISMISS (Docket No. 160) v. 7 EDMUND G. BROWN, JR., et al., 8 Defendants. ________________________________/ 9 United States District Court For the Northern District of California 10 Plaintiffs, ten inmates at Pelican Bay State Prison, bring 11 this putative class action against Defendants, the Governor of the 12 State of California, the Secretary of the California Department of 13 Corrections and Rehabilitation (CDCR), the Chief of CDCR’s Office 14 of Correctional Safety, and the Warden of Pelican Bay State 15 Prison, for violations of the Eighth and Fourteenth Amendments. 16 Defendants move to dismiss Plaintiffs’ second amended complaint 17 (2AC) for lack of subject matter jurisdiction and failure to state 18 a claim. 19 parties’ submissions and oral argument, the Court denies 20 Defendants’ motion. Plaintiffs oppose the motion. 21 After considering the BACKGROUND 22 Plaintiffs Todd Ashker and Danny Troxell have lived in 23 solitary confinement in Pelican Bay’s Secure Housing Unit (SHU) 24 for over two decades. 25 9, 2009, they filed this lawsuit challenging the conditions of 26 their confinement. 27 officials with violating their First, Fifth, Eighth, and 28 Fourteenth Amendment rights. Docket No. 1, Compl. ¶¶ 16-18. On December Their pro se complaint charged various CDCR Id. ¶ 8. 1 On September 10, 2012, after securing counsel, Ashker and 2 Troxell filed a second amended complaint (2AC) converting this 3 suit into a putative class action and joining eight other long- 4 term SHU inmates as plaintiffs. 5 their 2AC, Plaintiffs assert that the conditions inside the 6 Pelican Bay SHU violate the Eighth Amendment’s ban on cruel and 7 unusual punishment. 8 that “the cumulative effect of extremely prolonged confinement, 9 along with denial of the opportunity of parole, the deprivation of Docket No. 136, 2AC ¶ 1. Id. ¶¶ 177-92. In Specifically, they allege United States District Court For the Northern District of California 10 earned credits, the deprivation of good medical care, and other 11 crushing conditions of confinement at the Pelican Bay SHU” have 12 caused them significant harm, both physically and psychologically. 13 Id. ¶¶ 180-81. 14 “languish, typically alone, in a cramped, concrete, windowless 15 cell, for 22 and one-half to 24 hours a day” without access to 16 “telephone calls, contact visits, and vocational, recreational or 17 educational programming.” 18 They claim that SHU inmates are forced to Id. ¶ 3. In addition to their Eighth Amendment claim, Plaintiffs 19 assert that CDCR’s procedures for assigning inmates to the SHU 20 violate the Fourteenth Amendment’s guarantee of due process. 21 ¶¶ 193-202. 22 SHU based solely on their membership in or association with prison 23 gangs, without regard for the inmate’s “actual behavior.” 24 ¶¶ 91-92. 25 informants and various indicia such as “gang-related art, tattoos, 26 or written material” to determine whether inmates are affiliated 27 with a gang -- a process known as “gang validation.” Id. According to Plaintiffs, CDCR assigns inmates to the Id. CDCR relies instead on the word of confidential 28 2 Id. ¶ 92. 1 Inmates who have been validated as gang members or associates are 2 assigned to the SHU for an indefinite term. 3 Id. ¶¶ 92-94. Once inside the SHU, inmates receive periodic reviews every 4 six months to determine whether they should be released into 5 Pelican Bay’s general population. 6 assert that these reviews are essentially “meaningless,” however, 7 because they require inmates to “debrief” -- that is, renounce 8 their membership in the gang and divulge the gang’s secrets to 9 prison officials -- in order to secure release. Id. ¶¶ 96-97. Plaintiffs Id. ¶¶ 96-97, 7. United States District Court For the Northern District of California 10 Plaintiffs contend that debriefing is not a viable option for most 11 inmates, who believe that it “places [them] and their families in 12 significant danger of retaliation” from other prisoners. 13 Id. ¶ 7. CDCR also conducts reviews of SHU inmates’ gang affiliation 14 status every six years to determine whether they are still 15 “active” gang members or associates. 16 six-month reviews, however, Plaintiffs claim that this process 17 typically only leads to the inmate’s release from the SHU if the 18 inmate is willing to debrief. 19 that they have effectively been denied “information about an 20 actual path out of the SHU, besides debriefing.” 21 assert that they “are entitled to meaningful notice of how they 22 may alter their behavior to rejoin general population, as well as 23 meaningful and timely periodic reviews to determine whether they 24 still warrant detention in the SHU.” 25 Id. Id. ¶¶ 102-04. As with the Plaintiffs allege, in short, Id. ¶ 117. They Id. ¶ 200. Plaintiffs’ 2AC seeks declaratory and injunctive relief. In 26 particular, Plaintiffs request “alleviation of the conditions of 27 confinement” in the SHU, meaningful review of the continued need 28 for solitary confinement of all inmates who have been in the SHU 3 1 for over six months, and release from the SHU of every inmate who 2 has spent over ten years there. 3 asserted any claims for monetary damages. 4 LEGAL STANDARDS 5 I. 6 Id. at ¶¶ 45-46. They have not Subject Matter Jurisdiction Subject matter jurisdiction is a threshold issue which goes 7 to the power of the court to hear the case. 8 matter jurisdiction must exist at the time the action is 9 commenced. Federal subject Morongo Band of Mission Indians v. Cal. State Bd. of United States District Court For the Northern District of California 10 Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). 11 court is presumed to lack subject matter jurisdiction until the 12 contrary affirmatively appears. 13 Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). A federal Stock W., Inc. v. Confederated 14 Dismissal is appropriate under Rule 12(b)(1) when the 15 district court lacks subject matter jurisdiction over the claim. 16 Fed. R. Civ. P. 12(b)(1). 17 attack the sufficiency of the pleadings to establish federal 18 jurisdiction, or allege an actual lack of jurisdiction which 19 exists despite the formal sufficiency of the complaint. 20 Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th 21 Cir. 1979); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 22 1987). 23 II. 24 A Rule 12(b)(1) motion may either Thornhill Failure to State a Claim A complaint must contain a “short and plain statement of the 25 claim showing that the pleader is entitled to relief.” 26 Civ. P. 8(a). 27 state a claim, dismissal is appropriate only when the complaint 28 does not give the defendant fair notice of a legally cognizable Fed. R. On a motion under Rule 12(b)(6) for failure to 4 1 claim and the grounds on which it rests. 2 Twombly, 550 U.S. 544, 555 (2007). 3 complaint is sufficient to state a claim, the court will take all 4 material allegations as true and construe them in the light most 5 favorable to the plaintiff. 6 896, 898 (9th Cir. 1986). 7 to legal conclusions; “threadbare recitals of the elements of a 8 cause of action, supported by mere conclusory statements,” are not 9 taken as true. United States District Court For the Northern District of California 10 In considering whether the NL Indus., Inc. v. Kaplan, 792 F.2d However, this principle is inapplicable Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). 11 12 Bell Atl. Corp. v. DISCUSSION I. Subject Matter Jurisdiction 13 Defendants contend that Plaintiffs’ due process claim is moot 14 because CDCR has recently implemented new procedures for assigning 15 inmates to the SHU.1 16 October 2012 -- are part of the agency’s “Security Threat Group” 17 (STG) pilot program, which aims to revamp CDCR’s “gang management 18 policies.” 19 administrator, George Giurbino, the pilot program involves 20 (1) creating a “new STG-behavior-based disciplinary matrix, which 21 provides for additional procedural due process safeguards”; 22 (2) forming a “new STG Classification Committee, which provides an 23 additional level of due process review and confirms initial STG 24 validations”; and (3) introducing new procedures to incentivize 25 good behavior among gang affiliated inmates. 26 will also include a case-by-case review of every SHU inmate across The new procedures -- which took effect in Declaration of G. Giurbino ¶ 5. According to a CDCR Id. The program 27 1 28 Mootness is properly raised on a motion to dismiss under Rule 12(b)(1). White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000). 5 1 the State. 2 program, these reviews led to forty-three inmates at five 3 different correctional facilities being “classified for release 4 from the SHU to the general population.” 5 specified how many of these releases occurred at Pelican Bay. 6 Id. ¶ 6. During the first nine weeks of the pilot Id. Defendants have not The changes implemented by the STG program do not moot 7 Plaintiffs’ due process claim. 8 lost its character as a present, live controversy, and if no 9 effective relief can be granted. A claim is moot only if it has Flast v. Cohen, 392 U.S. 83, 95 United States District Court For the Northern District of California 10 (1968). 11 ceasing voluntarily to engage in illegal conduct; rather, it must 12 show that “(1) there is no reasonable expectation that the wrong 13 will be repeated, and (2) interim relief or events have completely 14 and irrevocably eradicated the effects of the alleged violation.” 15 Barnes v. Healy, 980 F.2d 572, 580 (9th Cir. 1992). 16 bears a “heavy burden” in making this showing. 17 Council of Kitanemuk & Yowlumne Tejon Indians v. United States 18 Dep’t of Energy, 232 F.3d 1300, 1303 (9th Cir. 2000). 19 In general, a defendant cannot moot a claim merely by The defendant Tinoqui–Chalola Defendants here have failed to satisfy this burden. In 20 particular, they have not shown that the STG program will 21 permanently cure the specific due process violations that 22 Plaintiffs allege. 23 arguments for this reason in the past. 24 court specifically rejected prison officials’ argument that a 25 group of Arizona inmates’ claims of lack of access to the courts 26 were rendered moot by the prison’s “post-litigation promulgation 27 of a new access policy.” 28 The Gluth court found the officials’ mootness argument The Ninth Circuit has rejected mootness In Gluth v. Kangas, the 951 F.2d 1504, 1507 (9th Cir. 1991). 6 1 “overreaching” because they had not explained in detail how the 2 new policy would permanently dispose of the plaintiffs’ claims. 3 Id. (“Even assuming that the policy meets constitutional standards 4 on its face, given the Department’s history of allegedly denying 5 access arbitrarily and the vagueness of the new policy, it cannot 6 be said ‘with assurance’ that there is no ‘reasonable expectation’ 7 that the alleged violations will recur.”). 8 9 Defendants’ mootness argument is similarly lacking here. Although they have submitted a hundred-page CDCR memorandum United States District Court For the Northern District of California 10 describing the new program, they have not shown that any of the 11 program’s new procedures are permanent. 12 stated that the “pilot program has a lifespan of two years.” 13 Giurbino Decl. ¶ 10. 14 the program will “irrevocably eradicate[] the effects of the 15 alleged violation[s].” 16 cf. Celano v. Marriott Int’l, Inc., 2008 WL 239306, at *5 (N.D. 17 Cal.) (finding that the defendant’s pilot program to improve 18 access to its facilities did not moot the plaintiff’s Americans 19 with Disabilities Act claim because the defendant conceded that 20 “the pilot program . . . may be temporary”). 21 To the contrary, CDCR has As such, Defendants cannot establish that Barnes, 980 F.2d at 580 (emphasis added); Defendants request, as an alternative to dismissal, that the 22 Court stay Plaintiffs’ due process claims until the STG program 23 has been fully implemented. 24 prejudice Plaintiffs, delay the case unduly, and save few 25 resources because the parties would still have to litigate 26 Plaintiffs’ Eighth Amendment claims during the pendency of the 27 stay. This request is denied. 28 7 A stay would 1 II. Failure to State a Claim 2 A. 3 Plaintiffs allege that, while living inside the SHU, they Cruel and Unusual Punishment (First Cause of Action) 4 have been deprived of basic human needs, including “normal human 5 contact, environmental and sensory stimulation, mental and 6 physical health, physical exercise, sleep, nutrition, and 7 meaningful activity.” 8 “extremely prolonged exposure to these deprivations” has caused 9 them serious physical and psychological harm in violation of the United States District Court For the Northern District of California 10 11 Eighth Amendment. 2AC ¶ 180. They assert that their Id. ¶¶ 179-82. The Eighth Amendment requires prison officials to take 12 reasonable measures to guarantee inmate safety. 13 Brennan, 511 U.S. 825, 832 (1994). 14 not mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 15 349 (1981), it does require that prisons provide inmates with 16 “basic human needs.” See Farmer v. Although the provision “does Helling v. McKinney, 509 U.S. 25, 33 (1993). 17 Eighth Amendment claims have two basic elements. 18 is objective: the deprivation alleged must be sufficiently 19 serious. 20 U.S. 294, 297-98 (1991)). 21 official must possess a sufficiently culpable state of mind. 22 (citing Wilson, 501 U.S. at 298). 23 deprivation is sufficiently serious to satisfy the objective 24 component of an Eighth Amendment claim, a court must consider the 25 circumstances, nature, and duration of the deprivation. 26 834 (citing Wilson, 501 U.S. at 298). 27 subjective component, the requisite state of mind depends on the 28 nature of the claim. The first Farmer, 511 U.S. at 832 (citing Wilson v. Seiter, 501 The second is subjective: the prison Id. To determine whether an alleged Id. at With respect to the In prison-conditions cases, the necessary 8 1 state of mind is one of “deliberate indifference.” 2 Wilson, 501 U.S. at 302–03; Allen v. Sakai, 48 F.3d 1082, 1087 3 (9th Cir. 1994). 4 See, e.g., Here, Plaintiffs have adequately plead both elements of an 5 Eighth Amendment claim. 6 social isolation and lack of environmental stimuli -- each 7 Plaintiff has lived in the SHU for at least eleven years -- causes 8 “serious psychological pain and suffering and permanent 9 psychological and physical injury.” They have alleged that their prolonged 2AC ¶¶ 181. These United States District Court For the Northern District of California 10 allegations are plausible in light of another court’s fact 11 findings that even shorter stays in the SHU are capable of causing 12 psychological harm. 13 65 (1995) (“[T]he conditions of extreme social isolation and 14 reduced environmental stimulation found in the Pelican Bay SHU 15 will likely inflict some degree of psychological trauma upon most 16 inmates confined there for more than brief periods.”). 17 Plaintiffs’ asserted injuries -- the symptoms of which include 18 “chronic insomnia,” “severe concentration and memory problems,” 19 “anxiety,” and other ailments -- are sufficient to satisfy the 20 objective component of their Eighth Amendment claim, considering 21 the length of Plaintiffs’ exposure to these conditions. 22 v. Finney, 437 U.S. 678, 686-87 (1978) (“[T]he length of 23 confinement cannot be ignored in deciding whether the confinement 24 meets constitutional standards. 25 diet of ‘grue’ might be tolerable for a few days and intolerably 26 cruel for weeks or months.”); Keenan v. Hall, 83 F.3d 1083, 1089 27 (9th Cir. 1996) (same). See Madrid v. Gomez, 889 F. Supp. 1146, 1261- See Hutto A filthy, overcrowded cell and a 28 9 1 Plaintiffs have also adequately plead facts to satisfy the 2 subjective component of their claim. 3 symptoms they allege sufficiently obvious to apprise prison 4 officials of their injuries but, in addition, Plaintiffs claim 5 that CDCR officials were given explicit notice of their injuries 6 by way of administrative grievances, written complaints, and 7 inmate hunger strikes. 8 CDCR officials knew of the risks of long-term solitary confinement 9 but ignored them for several years -- is sufficient to satisfy the Not only are the physical 2AC ¶¶ 189-92. This assertion -- that United States District Court For the Northern District of California 10 deliberate indifference requirement at the pleading stage. 11 Helling, 509 U.S. at 33 (“We have great difficulty agreeing that 12 prison authorities may not be deliberately indifferent to an 13 inmate’s current health problems but may ignore a condition of 14 confinement that is sure or very likely to cause serious illness 15 and needless suffering the next week or month or year.”). 16 See The decision in Madrid, 889 F. Supp. at 1261-65, does not 17 preclude Plaintiffs’ claim here. 18 found that the conditions in the SHU violated the Eighth Amendment 19 rights of inmates who were “already mentally ill” or predisposed 20 to mental illness, it also stated: 21 Although the Madrid court only We emphasize, of course, that this determination is based on the current record and data before us. We can not begin to speculate on the impact that Pelican Bay SHU conditions may have on inmates confined in the SHU for periods of 10 or 20 years or more; the inmates studied in connection with this action had generally been confined to the SHU for three years or less. 22 23 24 25 Id. 26 longer periods of confinement in the SHU -- such as those alleged 27 here -- could implicate Eighth Amendment concerns, even for those 28 inmates who are not predisposed to mental illness. The decision, thus, expressly left open the possibility that 10 1 The other two cases that Defendants cite, Coleman v. Wilson, 2 912 F. Supp. 1282, 1293 (E.D. Cal. 1995), and Plata v. 3 Schwarzenegger, No. 01-1351 TEH, Docket No. 1237, Stipulation & 4 Order, at 1 (N.D. Cal. June 6, 2008) are also not preclusive here. 5 Coleman and Plata are class actions that address the adequacy of 6 health care services provided by CDCR to inmates across 7 California. 8 serious mental disorders,” 912 F. Supp. at 1293, while the Plata 9 class includes all CDCR inmates with “serious medical conditions,” The Coleman class includes all CDCR inmates “with United States District Court For the Northern District of California 10 No. 01-1351 TEH, Docket No. 20, Compl., at 52.2 11 Plaintiffs here seek to represent a much narrower class (inmates 12 housed in the Pelican Bay SHU) and assert a much broader claim 13 (prolonged deprivation of human contact and environmental 14 stimuli). 15 challenge long-term confinement in the Pelican Bay SHU, these 16 cases do not require dismissal of Plaintiffs’ Eighth Amendment 17 claim. In contrast, Because neither the Coleman nor Plata class sought to 18 B. 19 Plaintiffs allege that CDCR’s procedures for assigning 20 inmates to the SHU and periodically reviewing those assignments 21 violate the Due Process Clause of the Fourteenth Amendment. 22 ¶¶ 193-202. 23 Due Process (Second Cause of Action) 2AC Courts use a two-step inquiry to determine whether a 24 plaintiff has stated a valid procedural due process claim. 25 Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 26 (1989). See First, the court asks whether the plaintiff has alleged a 27 2 28 The Plata class originally excluded Pelican Bay inmates but was later amended by stipulation. 11 1 deprivation of a legally cognizable interest -- that is, “whether 2 there exists a liberty or property interest which has been 3 interfered with by the State.” 4 plaintiff has alleged such a deprivation, it will then proceed to 5 the second stage of the inquiry, asking “whether the procedures 6 attendant upon that deprivation were constitutionally sufficient.” 7 Id. 8 9 Id. If the court finds that the Defendants here do not dispute that reassigning inmates to the SHU qualifies as a deprivation of a legally cognizable liberty United States District Court For the Northern District of California 10 interest. 11 (recognizing inmates have a liberty interest in avoiding 12 assignment to a supermax unit that disqualifies them for parole 13 and imposes “severe limitations on all human contact” for an 14 “indefinite” period of time). 15 second part of the due process inquiry: namely, whether the 16 procedures CDCR allegedly uses to assign inmates to the SHU are 17 constitutionally adequate. 18 must apply the three-part balancing test laid out in Mathews v. 19 Eldridge, 424 U.S. 319, 335 (1976). 20 must weigh: (1) the “private interest that will be affected” by 21 the challenged government action; (2) “the risk of erroneous 22 deprivation of such interest” under current procedures and the 23 “probable value, if any, of additional or substitute procedural 24 safeguards”; and (3) the “[g]overnment’s interest” in the official 25 action, including the cost of providing additional procedures. 26 Id. 27 procedural safeguards while being subjected to a significant See Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005) Their motion therefore turns on the To answer this question, the Court Under this test, the Court Because Plaintiffs here allege that they receive only minimal 28 12 1 deprivation of liberty, they have stated a valid due process claim 2 under Mathews. 3 The Supreme Court’s decision in Wilkinson provides useful 4 guidance here. 5 procedures for assigning inmates to the State’s only supermax 6 prison -- a facility similar to Pelican Bay’s SHU -- satisfied the 7 due process requirements of Mathews. 8 Court’s decision was based on the fact that Ohio’s reassignment 9 process includes numerous measures to help ensure that inmates are In Wilkinson, the Court held that Ohio’s 545 U.S. at 224-29. United States District Court For the Northern District of California 10 not erroneously assigned to the supermax facility. 11 The Court noted, 12 13 14 15 In particular, Ohio provides multiple levels of review for any decision recommending [supermax] placement, with power to overturn the recommendation at each level. In addition to these safeguards, Ohio further reduces the risk of erroneous placement by providing for a placement review within 30 days of an inmate’s initial assignment to [the supermax facility]. 16 Id. at 227.3 17 the decisionmaker provide a short statement of reasons. The Court also emphasized that “Ohio requires that This 18 19 20 21 22 23 24 25 26 27 28 3 Ohio’s decision-making process involves several steps. First, to initiate the reassignment, a prison official must prepare a form detailing “matters such as the inmate’s recent violence, escape attempts, gang affiliation, underlying offense, and other pertinent details.” 545 U.S. at 216. Next, a three-member committee of corrections officials is convened to review the form and to hold a hearing on the matter. Although the inmate may not call witnesses at the hearing, he may appear to object to the proposed reassignment and offer any information or explanations that he finds relevant to the committee’s decision. Id. The committee is required to give the inmate written notice, including a copy of the form that initiated the process, at least forty-eight hours before the hearing. Id. 13 1 requirement guards against arbitrary decisionmaking while also 2 providing the inmate a basis for objection before the next 3 decisionmaker or in a subsequent classification review.” 4 226. 5 facility are entitled to this same multi-tiered review process 6 every year that they remain there. 7 robust safeguards, the Court concluded that Ohio’s reassignment 8 policy “strikes a constitutionally permissible balance between the 9 factors of the Mathews framework.” United States District Court For the Northern District of California 10 Id. at Finally, the Court noted that inmates housed in the supermax Id. at 217. Based on these Id. at 230. CDCR’s reassignment procedures include significantly fewer 11 protections than Ohio’s. 12 inmates do not receive a multi-tiered review before being 13 reassigned to the SHU. 14 the reassignment decision within thirty days of their placement 15 there. 16 CDCR’s initial reassignment decision and to the subsequent six- 17 month and six-year reviews of their gang affiliation status. 18 fact, according to Plaintiffs’ complaint, the only way inmates can 19 realistically secure release from the SHU is to debrief, an option 20 which many inmates are reluctant to exercise. 21 U.S. at 227 (“Testifying against, or otherwise informing on, gang 22 activities can invite one’s own death sentence.”). According to Plaintiffs’ complaint, CDCR Nor do they receive an immediate review of Inmates also receive fewer opportunities to object to In See Wilkinson, 545 Finally, 23 24 25 26 27 28 If the committee recommends reassignment, it must issue a written report explaining its reasoning and summarizing the evidence presented at the hearing. Id. at 216-17. The warden at the facility where the inmate is housed must then sign off on the committee report and forward it to a state agency staffed with corrections officials, who must do the same. Id. Both the warden and the agency must annotate the committee report with the reasons for their respective decisions and provide a copy of the annotated report to the inmate. Id. If the inmate is ultimately reassigned, his file will be reviewed again by an official at the supermax facility within thirty days of his arrival there. Id. 14 1 unlike in Ohio, CDCR’s initial reassignment decision is based 2 solely on the inmate’s gang affiliations, without regard to his 3 criminal history or propensity for violence. 4 CDCR’s procedures as alleged appear create a much greater “risk of 5 erroneous deprivation” -- the second Mathews factor -- than was 6 present in Wilkinson. 7 Taken together, The third Mathews factor also weighs slightly in Plaintiffs’ 8 favor here because the costs of providing additional safeguards 9 would be relatively small. Plaintiffs allege that Pelican Bay’s United States District Court For the Northern District of California 10 SHU houses roughly a thousand inmates, which constitutes only a 11 small fraction of California’s total inmate population. 12 the procedural protections afforded to this subset of 13 geographically isolated inmates would be considerably easier -- 14 and cheaper -- than affording new protections to the inmate 15 population as a whole.4 Amending 16 While the Court recognizes that the first Mathews factor -- 17 the private interest at stake -- is ordinarily given less weight 18 “within the context of the prison system and its attendant 19 curtailment of liberties,” Wilkinson, 545 U.S. at 225, this case 20 presents unique circumstances, given the length and severity of 21 the deprivations alleged. 22 time in the SHU than any of the Wilkinson plaintiffs spent in 23 Ohio’s supermax facility, which was only four years old when the 24 case was filed. Plaintiffs here have spent much more Five of the Plaintiffs here allege that they have 25 4 26 27 28 As noted above, Defendants have represented that they intend to conduct a case-by-case review of all current SHU assignments as part of the new STG pilot program. Such an endeavor is likely possible only because of the relatively small number of inmates housed in SHUs across the State. Pelican Bay’s SHU inmates represent an even smaller share of this subgroup. 15 1 lived in the SHU, with minimal human contact, for more than twenty 2 consecutive years: even within the “context of the prison system,” 3 this represents a significant deprivation of liberty. 4 83 F.3d at 1089 (“We do know that relevant factors [when 5 evaluating an inmate’s liberty interest in avoiding a transfer] 6 include whether there is a likelihood that the transfer will 7 affect the duration of [the inmate]’s sentence and the duration of 8 the transfer.”). 9 See Keenan, Toussaint v. McCarthy, 801 F.2d 1080, 1098-1101 (9th Cir. United States District Court For the Northern District of California 10 1986), which Defendants cite for support, does not counsel 11 otherwise. 12 procedure for reassigning inmates to administrative segregation 13 units and concluded that inmates lacked a substantial liberty 14 interest in avoiding reassignment to those units. 15 This holding has little application to the present case because 16 Plaintiffs’ asserted liberty interest here is considerably greater 17 than merely avoiding administrative segregation. 18 exposes inmates to harsher conditions than administrative 19 segregation but, as noted above, does so for longer periods of 20 time. 21 to the conditions inside the Ohio supermax facility described in 22 Wilkinson -- where the Supreme Court recognized a cognizable 23 liberty interest -- than to those described in Toussaint. 24 Toussaint is therefore inapposite. 25 In Toussaint, the Ninth Circuit examined California’s Id. at 1291-92. The SHU not only Indeed, the conditions inside the SHU appear more similar So, too, is Bruce v. Ylst, 351 F.3d 1283, 1287-88 (9th Cir. 26 2003), another case on which Defendants rely. 27 Circuit rejected an individual SHU inmate’s due process claim 28 alleging that “prison officials did not have sufficient evidence 16 In Bruce, the Ninth 1 to validate him as a member of the BGF prison gang.” 2 The court held that the prison officials were entitled to summary 3 judgment because their initial gang validation decision was 4 supported by “some evidence.” 5 upheld CDCR’s gang validation decision in that case, however, it 6 did not resolve the broader question presented here: namely, 7 whether CDCR’s practice of assigning inmates to the SHU 8 indefinitely and then allegedly denying them realistic 9 opportunities for release violates due process. Id. at 1288. Id. at 1287. While the Bruce court Unlike in Bruce, United States District Court For the Northern District of California 10 Plaintiffs here allege a wide range of procedural deficiencies, 11 which include the infrequency of CDCR reviews, the lack of 12 meaningful opportunities to contest reassignment, conditioning 13 release from the SHU on debriefing, and denying SHU inmates a 14 chance to earn good-time credits.5 15 considered as a whole. 16 illustrates that courts deciding due process challenges to inmate 17 reassignment procedures must examine the entire reassignment 18 process -- including both the initial reassignment decision and 19 subsequent reviews of that decision -- rather than focusing on a 20 single element of the process in isolation. 21 decided two years before Wilkinson, dealt only with a single gang 22 validation decision and did not examine CDCR’s broader decision- 23 making process. 24 25 These deficiencies must be The Supreme Court’s decision in Wilkinson Bruce, which was This Court’s decision in Ashker v. Schwarzenegger, No. 053286 CW, Docket No. 336 (N.D. Cal. 2009), is inapplicable here for 26 5 27 28 Notably, SHU inmates were not denied the opportunity to earn good-time credits until 2010, seven years after Bruce was decided, when the California Legislature amended the Penal Code to make them ineligible for such credits. Cal. Penal Code § 2933.6. 17 1 the same reason. 2 repeated decisions to validate him as a member of the Aryan 3 Brotherhood prison gang in 2001, 2002, and 2003. 4 Bruce, this Court granted summary judgment to CDCR officials 5 because their gang validation decisions were supported by “some 6 evidence,” id. at 27-35; the Court did not, however, hold that 7 CDCR’s entire reassignment process comports with due process. 8 Furthermore, Ashker’s claims in the present lawsuit are not based 9 on the 2001, 2002, and 2003 gang validation decisions he In that case, Plaintiff Ashker challenged CDCR’s Relying on United States District Court For the Northern District of California 10 challenged in his prior lawsuit. 11 Plaintiffs’ Requests for Reconsideration & Extension of Time, 12 at 3. 13 prior due process claims do not preclude his claims in this case. 14 Id. (“[T]o the extent that Plaintiffs’ claims regarding gang 15 status reviews and revalidations have not been litigated in C 05- 16 3286 CW, they are cognizable in this case.”). 17 Docket No. 11, Order Granting As this Court has previously stated, Plaintiff Ashker’s In sum, Plaintiffs have adequately plead a violation of their 18 due process rights. 19 whether they are entitled to the specific hearing procedures 20 described in Wolff v. McDonnell, 418 U.S. 539, 563-72 (1974) or 21 merely the “minimal process” required in cases like Sandin v. 22 Conner, 515 U.S. 472, 479 (1995), and Hewitt v. Helms, 459 U.S. 23 460 (1983). 24 sufficiently serious deprivation of liberty and corresponding lack 25 of procedural safeguards to state a due process claim under 26 Mathews. 27 the pleading stage, where Plaintiffs have yet to produce evidence 28 to support their allegations. The Court need not decide at this stage As explained above, Plaintiffs have alleged a Determination of the process due would be premature at 18 1 2 CONCLUSION For the reasons set forth above, Defendants’ motion to 3 dismiss (Docket No. 160) is DENIED. 4 answer within twenty-one days of the date of this order. 5 Defendants must file their IT IS SO ORDERED. 6 7 8 Dated: 4/9/2013 CLAUDIA WILKEN United States District Judge 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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