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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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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No. C 09-5796 CW

Plaintiffs,

ORDER DENYING
MOTION TO DISMISS
(Docket No. 160)

v.

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EDMUND G. BROWN, JR., et al.,

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Defendants.
________________________________/

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United States District Court
For the Northern District of California

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Plaintiffs, ten inmates at Pelican Bay State Prison, bring

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this putative class action against Defendants, the Governor of the

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State of California, the Secretary of the California Department of

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Corrections and Rehabilitation (CDCR), the Chief of CDCR’s Office

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of Correctional Safety, and the Warden of Pelican Bay State

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Prison, for violations of the Eighth and Fourteenth Amendments.

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Defendants move to dismiss Plaintiffs’ second amended complaint

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(2AC) for lack of subject matter jurisdiction and failure to state

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a claim.

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parties’ submissions and oral argument, the Court denies

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Defendants’ motion.

Plaintiffs oppose the motion.

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After considering the

BACKGROUND

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Plaintiffs Todd Ashker and Danny Troxell have lived in

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solitary confinement in Pelican Bay’s Secure Housing Unit (SHU)

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for over two decades.

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9, 2009, they filed this lawsuit challenging the conditions of

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their confinement.

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officials with violating their First, Fifth, Eighth, and

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Fourteenth Amendment rights.

Docket No. 1, Compl. ¶¶ 16-18.

On December

Their pro se complaint charged various CDCR

Id. ¶ 8.

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On September 10, 2012, after securing counsel, Ashker and

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Troxell filed a second amended complaint (2AC) converting this

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suit into a putative class action and joining eight other long-

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term SHU inmates as plaintiffs.

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their 2AC, Plaintiffs assert that the conditions inside the

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Pelican Bay SHU violate the Eighth Amendment’s ban on cruel and

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unusual punishment.

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that “the cumulative effect of extremely prolonged confinement,

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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

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earned credits, the deprivation of good medical care, and other

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crushing conditions of confinement at the Pelican Bay SHU” have

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caused them significant harm, both physically and psychologically.

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Id. ¶¶ 180-81.

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“languish, typically alone, in a cramped, concrete, windowless

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cell, for 22 and one-half to 24 hours a day” without access to

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“telephone calls, contact visits, and vocational, recreational or

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educational programming.”

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They claim that SHU inmates are forced to

Id. ¶ 3.

In addition to their Eighth Amendment claim, Plaintiffs

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assert that CDCR’s procedures for assigning inmates to the SHU

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violate the Fourteenth Amendment’s guarantee of due process.

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¶¶ 193-202.

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SHU based solely on their membership in or association with prison

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gangs, without regard for the inmate’s “actual behavior.”

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¶¶ 91-92.

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informants and various indicia such as “gang-related art, tattoos,

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or written material” to determine whether inmates are affiliated

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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

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Id. ¶ 92.

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Inmates who have been validated as gang members or associates are

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assigned to the SHU for an indefinite term.

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Id. ¶¶ 92-94.

Once inside the SHU, inmates receive periodic reviews every

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six months to determine whether they should be released into

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Pelican Bay’s general population.

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assert that these reviews are essentially “meaningless,” however,

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because they require inmates to “debrief” -- that is, renounce

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their membership in the gang and divulge the gang’s secrets to

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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

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Plaintiffs contend that debriefing is not a viable option for most

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inmates, who believe that it “places [them] and their families in

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significant danger of retaliation” from other prisoners.

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Id. ¶ 7.

CDCR also conducts reviews of SHU inmates’ gang affiliation

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status every six years to determine whether they are still

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“active” gang members or associates.

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six-month reviews, however, Plaintiffs claim that this process

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typically only leads to the inmate’s release from the SHU if the

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inmate is willing to debrief.

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that they have effectively been denied “information about an

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actual path out of the SHU, besides debriefing.”

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assert that they “are entitled to meaningful notice of how they

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may alter their behavior to rejoin general population, as well as

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meaningful and timely periodic reviews to determine whether they

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still warrant detention in the SHU.”

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Id.

Id. ¶¶ 102-04.

As with the

Plaintiffs allege, in short,

Id. ¶ 117.

They

Id. ¶ 200.

Plaintiffs’ 2AC seeks declaratory and injunctive relief.

In

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particular, Plaintiffs request “alleviation of the conditions of

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confinement” in the SHU, meaningful review of the continued need

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for solitary confinement of all inmates who have been in the SHU
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for over six months, and release from the SHU of every inmate who

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has spent over ten years there.

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asserted any claims for monetary damages.

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LEGAL STANDARDS

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I.

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Id. at ¶¶ 45-46.

They have not

Subject Matter Jurisdiction
Subject matter jurisdiction is a threshold issue which goes

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to the power of the court to hear the case.

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matter jurisdiction must exist at the time the action is

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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).

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court is presumed to lack subject matter jurisdiction until the

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contrary affirmatively appears.

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Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).

A federal

Stock W., Inc. v. Confederated

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Dismissal is appropriate under Rule 12(b)(1) when the

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district court lacks subject matter jurisdiction over the claim.

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Fed. R. Civ. P. 12(b)(1).

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attack the sufficiency of the pleadings to establish federal

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jurisdiction, or allege an actual lack of jurisdiction which

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exists despite the formal sufficiency of the complaint.

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Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th

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Cir. 1979); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.

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1987).

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II.

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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

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

Fed. R.

On a motion under Rule 12(b)(6) for failure to

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1

claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

United States District Court
For the Northern District of California

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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).

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Bell Atl. Corp. v.

DISCUSSION
I.

Subject Matter Jurisdiction

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Defendants contend that Plaintiffs’ due process claim is moot

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because CDCR has recently implemented new procedures for assigning

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inmates to the SHU.1

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October 2012 -- are part of the agency’s “Security Threat Group”

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(STG) pilot program, which aims to revamp CDCR’s “gang management

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policies.”

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administrator, George Giurbino, the pilot program involves

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(1) creating a “new STG-behavior-based disciplinary matrix, which

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provides for additional procedural due process safeguards”;

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(2) forming a “new STG Classification Committee, which provides an

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additional level of due process review and confirms initial STG

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validations”; and (3) introducing new procedures to incentivize

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good behavior among gang affiliated inmates.

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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

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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).

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the State.

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program, these reviews led to forty-three inmates at five

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different correctional facilities being “classified for release

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from the SHU to the general population.”

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specified how many of these releases occurred at Pelican Bay.

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Id. ¶ 6.

During the first nine weeks of the pilot

Id.

Defendants have not

The changes implemented by the STG program do not moot

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Plaintiffs’ due process claim.

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lost its character as a present, live controversy, and if no

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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

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(1968).

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ceasing voluntarily to engage in illegal conduct; rather, it must

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show that “(1) there is no reasonable expectation that the wrong

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will be repeated, and (2) interim relief or events have completely

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and irrevocably eradicated the effects of the alleged violation.”

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Barnes v. Healy, 980 F.2d 572, 580 (9th Cir. 1992).

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bears a “heavy burden” in making this showing.

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Council of Kitanemuk & Yowlumne Tejon Indians v. United States

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Dep’t of Energy, 232 F.3d 1300, 1303 (9th Cir. 2000).

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In general, a defendant cannot moot a claim merely by

The defendant

Tinoqui–Chalola

Defendants here have failed to satisfy this burden.

In

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particular, they have not shown that the STG program will

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permanently cure the specific due process violations that

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Plaintiffs allege.

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arguments for this reason in the past.

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court specifically rejected prison officials’ argument that a

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group of Arizona inmates’ claims of lack of access to the courts

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were rendered moot by the prison’s “post-litigation promulgation

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of a new access policy.”

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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).

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“overreaching” because they had not explained in detail how the

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new policy would permanently dispose of the plaintiffs’ claims.

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Id. (“Even assuming that the policy meets constitutional standards

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on its face, given the Department’s history of allegedly denying

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access arbitrarily and the vagueness of the new policy, it cannot

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be said ‘with assurance’ that there is no ‘reasonable expectation’

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that the alleged violations will recur.”).

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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

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describing the new program, they have not shown that any of the

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program’s new procedures are permanent.

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stated that the “pilot program has a lifespan of two years.”

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Giurbino Decl. ¶ 10.

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the program will “irrevocably eradicate[] the effects of the

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alleged violation[s].”

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cf. Celano v. Marriott Int’l, Inc., 2008 WL 239306, at *5 (N.D.

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Cal.) (finding that the defendant’s pilot program to improve

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access to its facilities did not moot the plaintiff’s Americans

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with Disabilities Act claim because the defendant conceded that

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“the pilot program . . . may be temporary”).

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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

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Court stay Plaintiffs’ due process claims until the STG program

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has been fully implemented.

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prejudice Plaintiffs, delay the case unduly, and save few

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resources because the parties would still have to litigate

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Plaintiffs’ Eighth Amendment claims during the pendency of the

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stay.

This request is denied.

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A stay would

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II.

Failure to State a Claim

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A.

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Plaintiffs allege that, while living inside the SHU, they

Cruel and Unusual Punishment (First Cause of Action)

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have been deprived of basic human needs, including “normal human

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contact, environmental and sensory stimulation, mental and

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physical health, physical exercise, sleep, nutrition, and

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meaningful activity.”

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“extremely prolonged exposure to these deprivations” has caused

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them serious physical and psychological harm in violation of the

United States District Court
For the Northern District of California

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Eighth Amendment.

2AC ¶ 180.

They assert that their

Id. ¶¶ 179-82.

The Eighth Amendment requires prison officials to take

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reasonable measures to guarantee inmate safety.

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Brennan, 511 U.S. 825, 832 (1994).

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not mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337,

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349 (1981), it does require that prisons provide inmates with

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“basic human needs.”

See Farmer v.

Although the provision “does

Helling v. McKinney, 509 U.S. 25, 33 (1993).

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Eighth Amendment claims have two basic elements.

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is objective: the deprivation alleged must be sufficiently

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serious.

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U.S. 294, 297-98 (1991)).

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official must possess a sufficiently culpable state of mind.

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(citing Wilson, 501 U.S. at 298).

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deprivation is sufficiently serious to satisfy the objective

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component of an Eighth Amendment claim, a court must consider the

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circumstances, nature, and duration of the deprivation.

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834 (citing Wilson, 501 U.S. at 298).

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subjective component, the requisite state of mind depends on the

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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
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state of mind is one of “deliberate indifference.”

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Wilson, 501 U.S. at 302–03; Allen v. Sakai, 48 F.3d 1082, 1087

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(9th Cir. 1994).

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See, e.g.,

Here, Plaintiffs have adequately plead both elements of an

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Eighth Amendment claim.

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social isolation and lack of environmental stimuli -- each

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Plaintiff has lived in the SHU for at least eleven years -- causes

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“serious psychological pain and suffering and permanent

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psychological and physical injury.”

They have alleged that their prolonged

2AC ¶¶ 181.

These

United States District Court
For the Northern District of California

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allegations are plausible in light of another court’s fact

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findings that even shorter stays in the SHU are capable of causing

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psychological harm.

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65 (1995) (“[T]he conditions of extreme social isolation and

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reduced environmental stimulation found in the Pelican Bay SHU

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will likely inflict some degree of psychological trauma upon most

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inmates confined there for more than brief periods.”).

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Plaintiffs’ asserted injuries -- the symptoms of which include

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“chronic insomnia,” “severe concentration and memory problems,”

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“anxiety,” and other ailments -- are sufficient to satisfy the

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objective component of their Eighth Amendment claim, considering

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the length of Plaintiffs’ exposure to these conditions.

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v. Finney, 437 U.S. 678, 686-87 (1978) (“[T]he length of

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confinement cannot be ignored in deciding whether the confinement

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meets constitutional standards.

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diet of ‘grue’ might be tolerable for a few days and intolerably

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cruel for weeks or months.”); Keenan v. Hall, 83 F.3d 1083, 1089

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(9th Cir. 1996) (same).

See Madrid v. Gomez, 889 F. Supp. 1146, 1261-

See Hutto

A filthy, overcrowded cell and a

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Plaintiffs have also adequately plead facts to satisfy the

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subjective component of their claim.

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symptoms they allege sufficiently obvious to apprise prison

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officials of their injuries but, in addition, Plaintiffs claim

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that CDCR officials were given explicit notice of their injuries

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by way of administrative grievances, written complaints, and

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inmate hunger strikes.

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CDCR officials knew of the risks of long-term solitary confinement

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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

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deliberate indifference requirement at the pleading stage.

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Helling, 509 U.S. at 33 (“We have great difficulty agreeing that

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prison authorities may not be deliberately indifferent to an

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inmate’s current health problems but may ignore a condition of

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confinement that is sure or very likely to cause serious illness

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and needless suffering the next week or month or year.”).

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See

The decision in Madrid, 889 F. Supp. at 1261-65, does not

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preclude Plaintiffs’ claim here.

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found that the conditions in the SHU violated the Eighth Amendment

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rights of inmates who were “already mentally ill” or predisposed

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to mental illness, it also stated:

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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.

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Id.

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longer periods of confinement in the SHU -- such as those alleged

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here -- could implicate Eighth Amendment concerns, even for those

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inmates who are not predisposed to mental illness.

The decision, thus, expressly left open the possibility that

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1

The other two cases that Defendants cite, Coleman v. Wilson,

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912 F. Supp. 1282, 1293 (E.D. Cal. 1995), and Plata v.

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Schwarzenegger, No. 01-1351 TEH, Docket No. 1237, Stipulation &

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Order, at 1 (N.D. Cal. June 6, 2008) are also not preclusive here.

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Coleman and Plata are class actions that address the adequacy of

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health care services provided by CDCR to inmates across

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California.

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serious mental disorders,” 912 F. Supp. at 1293, while the Plata

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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

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No. 01-1351 TEH, Docket No. 20, Compl., at 52.2

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Plaintiffs here seek to represent a much narrower class (inmates

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housed in the Pelican Bay SHU) and assert a much broader claim

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(prolonged deprivation of human contact and environmental

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stimuli).

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challenge long-term confinement in the Pelican Bay SHU, these

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cases do not require dismissal of Plaintiffs’ Eighth Amendment

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claim.

In contrast,

Because neither the Coleman nor Plata class sought to

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B.

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Plaintiffs allege that CDCR’s procedures for assigning

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inmates to the SHU and periodically reviewing those assignments

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violate the Due Process Clause of the Fourteenth Amendment.

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¶¶ 193-202.

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Due Process (Second Cause of Action)

2AC

Courts use a two-step inquiry to determine whether a

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plaintiff has stated a valid procedural due process claim.

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Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460

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(1989).

See

First, the court asks whether the plaintiff has alleged a

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2

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The Plata class originally excluded Pelican Bay inmates but was
later amended by stipulation.

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deprivation of a legally cognizable interest -- that is, “whether

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there exists a liberty or property interest which has been

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interfered with by the State.”

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plaintiff has alleged such a deprivation, it will then proceed to

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the second stage of the inquiry, asking “whether the procedures

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attendant upon that deprivation were constitutionally sufficient.”

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Id.

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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

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interest.

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(recognizing inmates have a liberty interest in avoiding

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assignment to a supermax unit that disqualifies them for parole

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and imposes “severe limitations on all human contact” for an

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“indefinite” period of time).

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second part of the due process inquiry: namely, whether the

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procedures CDCR allegedly uses to assign inmates to the SHU are

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constitutionally adequate.

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must apply the three-part balancing test laid out in Mathews v.

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Eldridge, 424 U.S. 319, 335 (1976).

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must weigh: (1) the “private interest that will be affected” by

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the challenged government action; (2) “the risk of erroneous

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deprivation of such interest” under current procedures and the

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“probable value, if any, of additional or substitute procedural

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safeguards”; and (3) the “[g]overnment’s interest” in the official

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action, including the cost of providing additional procedures.

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Id.

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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

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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

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due process requirements of Mathews.

8

Court’s decision was based on the fact that Ohio’s reassignment

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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.

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The

Court noted,

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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

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the decisionmaker provide a short statement of reasons.

The Court also emphasized that “Ohio requires that
This

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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

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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.

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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

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reassigned to the SHU.

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the reassignment decision within thirty days of their placement

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there.

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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

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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,

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27
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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.

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1

unlike in Ohio, CDCR’s initial reassignment decision is based

2

solely on the inmate’s gang affiliations, without regard to his

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criminal history or propensity for violence.

4

CDCR’s procedures as alleged appear create a much greater “risk of

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erroneous deprivation” -- the second Mathews factor -- than was

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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

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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

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small fraction of California’s total inmate population.

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the procedural protections afforded to this subset of

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geographically isolated inmates would be considerably easier --

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and cheaper -- than affording new protections to the inmate

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population as a whole.4

Amending

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While the Court recognizes that the first Mathews factor --

17

the private interest at stake -- is ordinarily given less weight

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“within the context of the prison system and its attendant

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curtailment of liberties,” Wilkinson, 545 U.S. at 225, this case

20

presents unique circumstances, given the length and severity of

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the deprivations alleged.

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time in the SHU than any of the Wilkinson plaintiffs spent in

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Ohio’s supermax facility, which was only four years old when the

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case was filed.

Plaintiffs here have spent much more

Five of the Plaintiffs here allege that they have

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4

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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.

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lived in the SHU, with minimal human contact, for more than twenty

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consecutive years: even within the “context of the prison system,”

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this represents a significant deprivation of liberty.

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83 F.3d at 1089 (“We do know that relevant factors [when

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evaluating an inmate’s liberty interest in avoiding a transfer]

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include whether there is a likelihood that the transfer will

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affect the duration of [the inmate]’s sentence and the duration of

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the transfer.”).

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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

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otherwise.

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procedure for reassigning inmates to administrative segregation

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units and concluded that inmates lacked a substantial liberty

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interest in avoiding reassignment to those units.

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This holding has little application to the present case because

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Plaintiffs’ asserted liberty interest here is considerably greater

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than merely avoiding administrative segregation.

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exposes inmates to harsher conditions than administrative

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segregation but, as noted above, does so for longer periods of

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time.

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to the conditions inside the Ohio supermax facility described in

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Wilkinson -- where the Supreme Court recognized a cognizable

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liberty interest -- than to those described in Toussaint.

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Toussaint is therefore inapposite.

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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.

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2003), another case on which Defendants rely.

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Circuit rejected an individual SHU inmate’s due process claim

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alleging that “prison officials did not have sufficient evidence
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In Bruce, the Ninth

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to validate him as a member of the BGF prison gang.”

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The court held that the prison officials were entitled to summary

3

judgment because their initial gang validation decision was

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supported by “some evidence.”

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upheld CDCR’s gang validation decision in that case, however, it

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did not resolve the broader question presented here: namely,

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whether CDCR’s practice of assigning inmates to the SHU

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indefinitely and then allegedly denying them realistic

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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,

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which include the infrequency of CDCR reviews, the lack of

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meaningful opportunities to contest reassignment, conditioning

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release from the SHU on debriefing, and denying SHU inmates a

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chance to earn good-time credits.5

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considered as a whole.

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illustrates that courts deciding due process challenges to inmate

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reassignment procedures must examine the entire reassignment

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process -- including both the initial reassignment decision and

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subsequent reviews of that decision -- rather than focusing on a

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single element of the process in isolation.

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decided two years before Wilkinson, dealt only with a single gang

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validation decision and did not examine CDCR’s broader decision-

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making process.

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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

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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

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the same reason.

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repeated decisions to validate him as a member of the Aryan

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Brotherhood prison gang in 2001, 2002, and 2003.

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Bruce, this Court granted summary judgment to CDCR officials

5

because their gang validation decisions were supported by “some

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evidence,” id. at 27-35; the Court did not, however, hold that

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CDCR’s entire reassignment process comports with due process.

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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.

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Plaintiffs’ Requests for Reconsideration & Extension of Time,

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at 3.

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prior due process claims do not preclude his claims in this case.

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Id. (“[T]o the extent that Plaintiffs’ claims regarding gang

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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

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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.

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the pleading stage, where Plaintiffs have yet to produce evidence

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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.

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answer within twenty-one days of the date of this order.

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Defendants must file their

IT IS SO ORDERED.

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Dated: 4/9/2013

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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