Ashker et al v. Schwarzenegger et al

Filing 317

ORDER by Judge Claudia Wilken GRANTING IN PART 195 MOTION FOR CLASS CERTIFICATION; DENYING 233 MOTION TO INTERVENE. (ndr, COURT STAFF) (Filed on 6/2/2014)

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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.,
Plaintiffs,

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United States District Court
For the Northern District of California

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No. C 09-5796 CW
ORDER GRANTING IN
PART MOTION FOR
CLASS
CERTIFICATION;
DENYING MOTION TO
INTERVENE (Docket
Nos. 195, 233)

v.
GOVERNOR OF THE STATE OF
CALIFORNIA, et al.,
Defendants.
________________________________/

Plaintiffs, a group of Pelican Bay State Prison inmates, move

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for class certification to pursue claims under the Eighth and

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Fourteenth Amendments of the United States Constitution.

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Defendants, the Governor of the State of California, Secretary of

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the California Department of Corrections and Rehabilitation

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(CDCR), Chief of CDCR’s Office of Correctional Safety, and Warden

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of Pelican Bay State Prison, oppose the motion.

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the parties’ submissions and oral argument, the Court grants the

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motion in part and denies it in part.

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denies the California Correctional Peace Officers Association’s

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(CCPOA) motion to intervene.

After considering

In addition, the Court

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BACKGROUND

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Plaintiffs are ten inmates who live or recently lived in

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solitary confinement at Pelican Bay, a maximum security prison

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located in Crescent City, California.

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currently assigned to the Security Housing Unit (SHU), the “most

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controlled and restrictive housing available” at the prison, where

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each has lived for over a decade.

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five inmates were recently transferred out of the Pelican Bay SHU.

Five of these inmates are

Swift Decl. ¶ 4.

The other

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Although CDCR operates SHUs at three other correctional

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facilities, this action focuses exclusively on the conditions of

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confinement within the Pelican Bay SHU.

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Under CDCR’s current regulations, inmates may be assigned to

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the SHU if their “conduct endangers the safety of others or the

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security of the institution.”

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accord Harrington Decl. ¶ 3.

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associate of a gang is “deemed to be a severe threat to the safety

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of others or the security of the institution and will be placed in

Cal. Code Regs. tit. 15, § 3341.5;
Any inmate who is a member or

United States District Court
For the Northern District of California

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[the] SHU for an indeterminate term.”

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§ 3341.5(c)(2)(A).

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were “validated” by CDCR as gang members or associates, they were

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all assigned to the SHU for an indeterminate term.

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Cal. Code Regs. tit. 15,

Because all of the Plaintiffs in this case

Plaintiffs allege that SHU inmates live in almost total

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isolation.

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day in windowless, concrete cells with perforated steel doors and

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typically leave only to shower or exercise alone in an enclosed

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pen.

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inmates sometimes speak to each other through the perforations in

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their cell doors, they cannot communicate face-to-face and have no

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contact with inmates in Pelican Bay’s general population.

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Decl. ¶¶ 20-22; Zubiate Decl. ¶ 28.

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contact with friends and family outside the prison.

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¶¶ 17-19; Dewberry Decl. ¶ 11; Esquivel Decl. ¶¶ 7-8; Franco Decl.

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¶¶ 7-8; Reyes Decl. ¶¶ 3-6; Ruiz Decl. ¶ 10; Troxell Decl. ¶ 5.

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They spend at least twenty-two and a half hours per

Swift Decl. ¶ 8; Ashker Decl. ¶¶ 3, 9-11.

Although SHU

Ashker

They also have limited
Ashker Decl.

Plaintiffs filed this putative class action in September

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2012, at which time all ten were assigned to the Pelican Bay SHU.

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Their complaint alleges that long-term confinement inside the SHU
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violates the Eighth Amendment’s prohibition on cruel and unusual

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punishment and that CDCR’s procedures for assigning inmates to the

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SHU violate the Fourteenth Amendment’s guarantee of procedural due

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process.

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Plaintiffs seek an injunction compelling CDCR to alleviate certain

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conditions of confinement in the SHU, adopt new procedures for

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reviewing SHU assignments, and transfer every inmate who has been

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assigned to the SHU for more than ten years into the general

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prison population.

United States District Court
For the Northern District of California

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Docket No. 136, Second Am. Compl. (2AC) ¶¶ 177-202.

Id. at ¶ 202.

Defendants moved to dismiss the complaint in December 2012.

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They argued, among other things, that Plaintiffs’ due process

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claim was moot because CDCR had implemented a new set of

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procedures, collectively known as the “Security Threat Group”

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(STG) pilot program, in October 2012 to review existing SHU

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assignments and transfer certain SHU inmates into the general

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population.

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order denying Defendants’ motion to dismiss.

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implementation of the STG pilot program was not sufficient to

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render Plaintiffs’ claims moot because CDCR had not implemented

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the program permanently and, at that time, all ten Plaintiffs

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remained subject to the preexisting procedures.

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The Court rejected that argument in its April 2013
It found that the

Defendants filed their answer to the complaint on April 30,

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2013.

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certification under Federal Rules of Civil Procedure 23(b)(1) and

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23(b)(2).

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It sought intervention under Rule 24(a) or, in the alternative,

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under Rule 24(b).

Two days later, on May 2, 2013, Plaintiffs moved for class

In June 2013, CCPOA moved to intervene as a defendant.

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3

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Those motions remained pending for nearly a year while the

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parties engaged in settlement negotiations.

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however, the parties notified the Court that they were not able to

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reach a settlement.

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discovery that the Court had previously entered to allow them to

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focus on settlement negotiations.

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stipulation on May 16, 2014 and, at the parties’ request, set a

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case management conference for June 4, 2014.

They filed a stipulation to lift the stay of

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United States District Court
For the Northern District of California

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On May 14, 2014,

The Court approved that

LEGAL STANDARDS
I.

Class Certification
Plaintiffs seeking to represent a class must satisfy the

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threshold requirements of Rule 23(a) as well as the requirements

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for certification under one of the subsections of Rule 23(b).

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Rule 23(a) provides that a case is appropriate for certification

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as a class action if

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(1)

the class is so numerous that joinder of
all members is impracticable;

(2)

there are questions of law or fact common
to the class;

(3)

the claims or defenses of the
representative parties are typical of the
claims or defenses of the class; and

(4)

the representative parties will fairly
and adequately protect the interests of
the class.

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Fed. R. Civ. P. 23(a).
Plaintiffs must also establish that one of the subsections of
Rule 23(b) is met.

In the instant case, Plaintiffs seek

certification under subsections (b)(1) and (b)(2).

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4

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Subsection (b)(1) applies where the prosecution of separate

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actions by individual members of the class would create the risk

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of “inconsistent or varying adjudications with respect to

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individual members of the class which would establish incompatible

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standards of conduct for the party opposing the class,” or of

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adjudications “which would as a practical matter be dispositive of

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the interests of the other members not parties to the

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adjudications or substantially impair or impede their ability to

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protect their interests.”

Fed. R. Civ. P. 23(b)(1).

United States District Court
For the Northern District of California

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Subsection (b)(2) applies where “the party opposing the class

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has acted or refused to act on grounds generally applicable to the

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class, thereby making appropriate final injunctive relief or

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corresponding declaratory relief with respect to the class as a

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whole.”

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parties charged with unlawful, class-based discrimination are

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prime examples” of Rule 23(b)(2) actions.

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Windsor, 521 U.S. 591, 614 (1997).

Fed. R. Civ. Proc. 23(b)(2).

“Civil rights cases against

Amchem Prods., Inc. v.

18

Regardless of what type of class the plaintiff seeks to

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certify, it must demonstrate that each element of Rule 23 is

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satisfied; a district court may certify a class only if it

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determines that the plaintiff has borne this burden.

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Co. of Sw. v. Falcon, 457 U.S. 147, 158-61 (1982); Doninger v.

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Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir. 1977).

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general, the court must take the substantive allegations of the

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complaint as true.

26

Cir. 1975).

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analysis,’” which may require it “‘to probe behind the pleadings

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before coming to rest on the certification question.’”

Gen. Tel.

In

Blackie v. Barrack, 524 F.2d 891, 901 (9th

However, the court must conduct a “‘rigorous

5

Wal-Mart

1

Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting

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Falcon, 457 U.S. at 160-61).

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will entail some overlap with the merits of the plaintiff’s

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underlying claim.

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2551.

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court may consider material beyond the pleadings and require

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supplemental evidentiary submissions by the parties.

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F.2d at 901 n.17.

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context of a motion for class certification, district courts must

“Frequently that ‘rigorous analysis’

That cannot be helped.”

Dukes, 131 S. Ct. at

To satisfy itself that class certification is proper, the

Blackie, 524

“When resolving such factual disputes in the

United States District Court
For the Northern District of California

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consider ‘the persuasiveness of the evidence presented.’”

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v. Verizon Cal., Inc., 2012 WL 10381, at *2 (C.D. Cal.) (quoting

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Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.

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2011)).

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whether a class should be certified.

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937, 946 (9th Cir. 2003); Burkhalter Travel Agency v. MacFarms

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Int’l, Inc., 141 F.R.D. 144, 152 (N.D. Cal. 1991).

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II.

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Aburto

Ultimately, it is in the district court’s discretion
Molski v. Gleich, 318 F.3d

Intervention
To intervene as a matter of right under Rule 24(a)(2), an

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applicant must claim an interest the protection of which may, as a

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practical matter, be impaired or impeded if the lawsuit proceeds

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without the applicant.

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630 F.3d 1173, 1177 (9th Cir. 2011).

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four-part test to motions under Rule 24(a)(2):

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Wilderness Society v. U.S. Forest Serv.,
The Ninth Circuit applies a

(1) the motion must be timely; (2) the
applicant must claim a “significantly
protectable” interest relating to the property
or transaction which is the subject of the
action; (3) the applicant must be so situated
that the disposition of the action may as a
practical matter impair or impede its ability
to protect that interest; and (4) the
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applicant’s interest must be inadequately
protected by the parties to the action.

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Id. (quoting Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir.

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1993)).

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The Ninth Circuit interprets Rule 24(a)(2) broadly in favor

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of intervention.

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intervene under Rule 24(a)(2), a district court is required “to

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take all well-pleaded, nonconclusory allegations in the motion

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. . . as true absent sham, frivolity or other objections.”

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Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir.

United States District Court
For the Northern District of California

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Id. at 1179.

In evaluating a motion to

Sw.

2001).

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Alternatively, a court may, in its discretion, permit

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intervention under Rule 24(b)(1)(B) by anyone who “has a claim or

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defense that shares with the main action a common question of law

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or fact.”

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whether the intervention will unduly delay or prejudice the

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adjudication of the original parties’ rights.”

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24(b)(3).

In exercising its discretion, a court should “consider

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Fed. R. Civ. P.

DISCUSSION
I.

Motion for Class Certification
Plaintiffs move to certify two classes of inmates under Rules

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23(b)(1) and 23(b)(2).

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Class” consisting of all inmates “serving indeterminate sentences

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at the Pelican Bay SHU on the basis of gang validation, none of

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whom have been or will be afforded meaningful review or

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procedurally adequate review of their confinement.”

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195, Class Cert. Mot. 1-2.

First, they move to certify a “Due Process

Docket No.

Second, they move to certify an Eighth

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Amendment Class

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be in the future, imprisoned by Defendants at the Pelican Bay SHU

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under the conditions and pursuant to the policies described below

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for longer than 10 continuous years.”

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consisting of all inmates “who are now, or will

Id. at 2.

Defendants contend that Plaintiffs’ proposed definition of

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the Due Process Class is ambiguous and that neither the proposed

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Due Process Class nor the proposed Eighth Amendment Class

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satisfies the requirements of Rule 23.

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below, these arguments do not justify denying class certification.

As explained more fully

United States District Court
For the Northern District of California

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A.

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Plaintiffs’ proposed Due Process Class contains the terms

Due Process Class Definition

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“meaningful review” and “procedurally adequate review,” neither of

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which is defined in the complaint.

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because these terms lack a concrete meaning, the proposed class

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definition is ambiguous and precludes certification.

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eBay Inc., 257 F.R.D. 563, 567 (N.D. Cal. 2009) (denying class

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certification because an ambiguous term in proposed class

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definition made “no reference to objective criteria” and meant

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that “the class members themselves might not know if they were

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members of the class”); Whiteway v. FedEx Kinko’s Office & Print

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Servs., 2006 WL 2642528, at *3 (N.D. Cal.) (“An implied

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prerequisite to certification is that the class must be

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sufficiently definite.”).

Defendants contend that,

See Mazur v.

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1

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Plaintiffs originally characterized the Eighth Amendment Class as
a “subclass” of the Due Process Class. However, at the hearing, they
acknowledged that their proposed definition of the Eighth Amendment
Class conceivably could encompass inmates who are not members of the
proposed Due Process Class. Accordingly, this order refers to the
Eighth Amendment Class as a separate class rather than a subclass.

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Although Defendants are correct that Plaintiffs’ proposed

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class definition is ambiguous, this ambiguity does not preclude

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certification of the Due Process Class.

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acknowledged at the hearing, the ambiguous terms can simply be

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removed from their proposed class definition.

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Due Process Class would simply consist of all Pelican Bay inmates

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who are currently assigned to an indeterminate SHU term on the

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basis of gang validation.

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precise and inclusive of all inmates who would benefit from the

As Plaintiffs

Thus modified, the

This amended class definition is both

United States District Court
For the Northern District of California

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declaratory and injunctive relief that Plaintiffs seek.

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Furthermore, CDCR’s own regulations treat this group as a distinct

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class and provide a straightforward framework for distinguishing

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between class members and non-members.

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15, § 3341.5(c) (distinguishing “Indeterminate SHU Segregation”

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from “Determinate SHU Segregation” and requiring all validated

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gang members and associates to be assigned to indeterminate

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terms).

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Due Process Class definition might require that the class

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definition be amended, they do not require that class

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certification be denied.

See Cal. Code Regs. tit.

Thus, while the ambiguous terms of Plaintiffs’ proposed

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B.

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Defendants have acknowledged that there are “approximately

Rule 23(a)(1): Numerosity

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1,100 inmates housed in Pelican Bay’s SHU, the majority of which

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are validated gang members and associates.”

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Plaintiffs assert that several hundred of these inmates have lived

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in the SHU for over a decade.

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satisfy the numerosity requirement for both the proposed Due

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Process Class and the proposed Eighth Amendment Class.

Swift Decl. ¶ 6.

These numbers are sufficient to

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C.

2

As noted above, Rule 23(a)(2) requires that there be

Rule 23(a)(2): Commonality

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“questions of law or fact common to the class.”

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23(a)(2).

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preclude class certification if fewer than all questions of law or

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fact are common to the class:

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8
9

United States District Court
For the Northern District of California

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Fed. R. Civ. P.

The Ninth Circuit has explained that this rule does not

The commonality preconditions of Rule 23(a)(2)
are less rigorous than the companion
requirements of Rule 23(b)(3). Indeed, Rule
23(a)(2) has been construed permissively. All
questions of fact and law need not be common
to satisfy the rule. The existence of shared
legal issues with divergent factual predicates
is sufficient, as is a common core of salient
facts coupled with disparate legal remedies
within the class.
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).
Plaintiffs here have identified common issues of law and fact for
both proposed classes.
1.

Due Process Class

Defendants contend that the implementation of the STG pilot
program precludes certification of the proposed Due Process Class.
They note that, under the STG program, CDCR has begun conducting
case-by-case reviews of all current SHU assignments and has
already transferred more than one hundred inmates from SHUs into
the general prison population.

Hubbard Decl. ¶ 11.

Because some

SHU inmates have received these new procedural protections and
others have not, Defendants contend that Plaintiffs cannot
establish commonality.
This argument does not justify denying class certification.
Even if some SHU inmates at Pelican Bay have been transferred to

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10

1

other units or received additional procedural protections under

2

the STG program, Defendants have not shown that all Pelican Bay

3

SHU have received such protections.

4

Pelican Bay SHU remain subject to the SHU assignment procedures

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that were in place before the STG program was implemented and

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which remain codified in CDCR’s official regulations.

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some inmates remain subject to these procedures -- which represent

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the core of the “system-wide practice” that Plaintiffs seek to

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challenge here -- Plaintiffs have satisfied Rule 23(a)’s

Many of the inmates in the

Because

United States District Court
For the Northern District of California

10

commonality requirement with respect to their proposed Due Process

11

Class.

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have previously held, in a civil-rights suit, that commonality is

13

satisfied where the lawsuit challenges a system-wide practice or

14

policy that affects all of the putative class members.”),

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abrogated on other grounds by Johnson v. California, 543 U.S. 499,

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504–05 (2005); see also Dukes, 131 S. Ct. at 2254 (recognizing

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that a “uniform employment practice . . . would provide the

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commonality needed for a class action” (emphasis added)).

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Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (“We

That said, any inmates who have been placed in the STG

20

program or transferred out of the Pelican Bay SHU, must be

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excluded from the proposed Due Process Class.

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process claim, as currently plead, only challenges the procedures

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that were in place before CDCR implemented the STG program.

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inmates who were placed in the STG program were subject to a

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different set of procedures and lack commonality with inmates who

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have only received the preexisting procedures.

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the hearing, if Plaintiffs seek to challenge the STG program

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procedures, they must seek leave to amend their due process claim.
11

Plaintiffs’ due

Thus,

As explained at

1
2

2.

Eighth Amendment Class

Defendants contend that Plaintiffs’ Eighth Amendment claim

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“presents a host of individual questions not subject to classwide

4

proof.”

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individual legal and factual questions is not sufficient to

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preclude class certification.

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questions of fact and law need not be common to satisfy the

8

rule.”).

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a plaintiff need only show that his or her claims raise some

United States District Court
For the Northern District of California

10
11

Opp. 18.

As noted above, however, the mere existence of

See Hanlon, 150 F.3d at 1019 (“All

Rather, to satisfy Rule 23(a)’s commonality requirement,

questions that are amenable to classwide adjudication.
Plaintiffs have satisfied this requirement here.

Their

12

Eighth Amendment claim raises several common questions of law and

13

fact including (1) whether long-term confinement inside the

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Pelican Bay SHU exposes inmates to a “sufficiently serious”

15

deprivation of basic human needs and (2) whether Defendants acted

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with a “sufficiently culpable state of mind” in assigning inmates

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to the SHU for indefinite terms.

18

511 U.S. 825, 834 (1994) (explaining that, to establish that a

19

prisoner’s Eighth Amendment rights have been violated, “the

20

deprivation alleged must be, objectively, ‘sufficiently serious’”

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and the “prison official must have a ‘sufficiently culpable state

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of mind’”).

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the conditions inside the Pelican Bay SHU and the mental health

24

risks associated with long-term confinement there are common to

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all putative class members.

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(“[T]here is a clear and consistent pattern in the stories

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articulated by these 10 men about the psychological consequences

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of spending a decade or longer in the SHU.”); Haney Decl. ¶ 10

See generally Farmer v. Brennan,

Plaintiffs have presented evidence to suggest that

See, e.g., Kupers Decl. ¶ 15

12

1

(“[L]ong-term exposure to precisely the kinds of conditions and

2

practices that . . . appear to currently exist in the [Pelican Bay

3

SHU] places prisoners at grave risk of psychological harm.”).

4

The fact that different inmates may exhibit different
symptoms or respond differently to prolonged SHU confinement does

6

not suffice to defeat commonality.

7

inmates personally believe that they did not suffer any

8

psychological harm while they were confined in the SHU.

9

courts, including the Ninth Circuit, have held that “individual

10
United States District Court
For the Northern District of California

5

factual differences among the individual litigants or groups of

11

litigants will not preclude a finding of commonality” in class

12

actions challenging a “system-wide” policy.

13

at 868 (rejecting California prison officials’ argument that “a

14

wide variation in the nature of the particular class members’

15

disabilities precludes a finding of commonality”); see also

16

Parsons v. Ryan, 289 F.R.D. 513, 523 (D. Ariz. 2013) (rejecting

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Arizona prison officials’ argument “that to determine whether

18

these conditions pose an unconstitutional risk of harm, the Court

19

must assess each individual class member’s exposure to the alleged

20

conditions”), appeal docketed, No. 13-16396 (9th Cir. July 10,

21

2013).

22

rights cases where commonality findings were based primarily on

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the fact that defendant’s conduct is central to the claims of all

24

class members irrespective of their individual circumstances and

25

the disparate effects of the conduct.”

26

F.3d 48, 57 (3d Cir. 1994).

27

identified questions of fact and law that are common to all class

Nor does the fact that some

Numerous

Armstrong, 275 F.3d

Indeed, “classes have been certified in a legion of civil

Baby Neal v. Casey, 43

Accordingly, because Plaintiffs have

28
13

1

members, they have satisfied the commonality requirement with

2

respect to the Eighth Amendment Class.

2

3

As with the Due Process Class, however, any inmates who have

4

been transferred out of the Pelican Bay SHU must be excluded from

5

the Eighth Amendment Class.

6

inmates who remain housed in the Pelican Bay SHU and would not

7

benefit from any of the injunctive relief that Plaintiffs are

8

seeking here.

9

confinement in any other housing unit or correctional facility,

United States District Court
For the Northern District of California

10

These inmates lack commonality with

If Plaintiffs seek to challenge the conditions of

they must seek leave to amend their Eighth Amendment claim.

11

D.

12

Rule 23(a)(3)’s typicality requirement provides that a “class

Rule 23(a)(3): Typicality

13

representative must be part of the class and possess the same

14

interest and suffer the same injury as the class members.”

15

Falcon, 457 U.S. at 156 (quoting E. Tex. Motor Freight Sys., Inc.

16

v. Rodriguez, 431 U.S. 395, 403 (1977)) (internal quotation marks

17

omitted).

18

of the named representative aligns with the interests of the

19

class.”

This requirement is meant to ensure “that the interest

Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.

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27
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2

Defendants continue to cite Madrid v. Gomez, 889 F. Supp. 1146
(1995), for the proposition that Plaintiffs’ “alleged harms are
insufficient to state a claim” under the Eighth Amendment. Opp. 19.
This argument is not properly raised in an opposition to class
certification and, even if it was, the Court has already rejected it.
As the Court explained in its prior order, Madrid dealt only with
inmates who had been confined in the SHU for less than three years and
“expressly left open the possibility that longer periods of confinement
in the SHU -- such as those alleged here -- could implicate Eighth
Amendment concerns.” Docket No. 191, April 9, 2013 Order, at 10; see
also Madrid, 889 F. Supp. at 1267 (“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.”). Thus, to the extent
Defendants contend that Madrid requires denial of class certification,
this argument is not persuasive.

14

1

1992).

2

the same or similar injury as the unnamed class members, the

3

action is based on conduct which is not unique to the named

4

plaintiffs, and other class members have been injured by the same

5

course of conduct.

6

however, “where a putative class representative is subject to

7

unique defenses which threaten to become the focus of the

8

litigation.”

9

Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir.

United States District Court
For the Northern District of California

10

Rule 23(a)(3) is satisfied where the named plaintiffs have

Id.

Class certification is inappropriate,

Id. (quoting Gary Plastic Packaging Corp. v. Merrill

1990)).

11

As noted above, five of the named Plaintiffs in this case are

12

currently assigned to an indeterminate term in the Pelican Bay SHU

13

on the basis of gang validation.

14

in the SHU for at least ten years.

15

any unique defenses that they might raise against these five

16

Plaintiffs and, instead, argue that Plaintiffs cannot establish

17

typicality for the same reasons they cannot establish commonality.

18

These arguments fail for the reasons discussed above.

19

Armstrong, 275 F.3d at 869 (“We do not insist that the named

20

plaintiffs’ injuries be identical with those of the other class

21

members, only that the unnamed class members have injuries similar

22

to those of the named plaintiffs and that the injuries result from

23

the same, injurious course of conduct.”); LaDuke v. Nelson, 762

24

F.2d 1318, 1332 (9th Cir. 1985) (“The minor differences in the

25

manner in which the representative’s Fourth Amendment rights were

26

violated does not render their claims atypical of those of the

27

class.” (footnote omitted)); Hanlon, 150 F.3d at 1020 (“Under the

28

rule’s permissive standards, representative claims are ‘typical’

Each of these inmates has lived

15

Defendants have not identified

See

1

if they are reasonably co-extensive with those of absent class

2

members; they need not be substantially identical.”).

3

In contrast to the five named Plaintiffs who remain housed in

4

the Pelican Bay SHU, the five inmates who have been transferred to

5

other units or facilities are not typical of other putative class

6

members.

7

different set of housing assignment procedures than the putative

8

class and now live under different conditions of confinement.

9

such, they may be subject to a unique set of defenses and do not

United States District Court
For the Northern District of California

10

The transferred individuals have been subject to a

As

satisfy the requirements of Rule 23(a)(3).

11

E.

12

Rule 23(a)(4) requires that class representatives “will

Rules 23(a)(4) & 23(g)(2): Adequacy

13

fairly and adequately protect the interests of the class.”

14

R. Civ. P. 23(a)(4).

15

on class counsel.

16

Fed.

Rule 23(g)(2) imposes a similar requirement

Defendants contend that two of Plaintiffs’ attorneys, Marilyn

17

McMahon and Carol Strickman, cannot adequately serve as class

18

counsel in this case because they are “fact witnesses” who may be

19

called to testify about their communications with Plaintiffs

20

regarding recent prisoner hunger strikes.

21

have not explained how this testimony is relevant to this case nor

22

how it would be admissible.

23

and Ms. McMahon and Ms. Strickman would not only be subject to the

24

attorney-client privilege but also likely constitute hearsay.

Opp. 23.

3

Defendants

Any communications between Plaintiffs

25
26
27
28

3

Defendants also initially argued that Ms. McMahon and Ms.
Strickman -- along with a third attorney, Anne Weills -- were inadequate
because Plaintiffs failed to submit evidence of their qualifications to
serve as class counsel. Because Plaintiffs subsequently submitted these
attorneys’ CVs with their reply brief, this argument is now moot.

16

1

Thus, because Defendants have not identified any legitimate

2

grounds to disqualify Plaintiffs’ counsel, Plaintiffs have

3

satisfied the adequacy requirements of Rule 23(g).

4

As noted above, the five named Plaintiffs who have been

5

transferred out of the Pelican Bay SHU pursuant to the STG program

6

are not typical class members.

7

representatives under Rule 23(a)(4).

8

Plaintiffs who currently remain housed in the Pelican Bay SHU may

9

adequately represent the class.

This renders them inadequate class
Thus, only the five named

United States District Court
For the Northern District of California

10

F.

11

As noted above, a class may be certified under Rule 23(b)(1)

Rule 23(b)(1): Risk of Inconsistent Adjudications

12

if the prosecution of separate actions by individual members of

13

the class would create the risk of “inconsistent or varying

14

adjudications with respect to individual members of the class

15

which would establish incompatible standards of conduct for the

16

party opposing the class.”

17

of the hundreds of proposed members of either the Due Process

18

Class or the Eighth Amendment Class were forced to adjudicate his

19

claims individually, there would be a significant risk of

20

inconsistent judgments.

21

therefore appropriate under Rule 23(b)(1).

Fed. R. Civ. P. 23(b)(1)(A).

If each

Certification of both proposed classes is

22

G.

23

“Rule 23(b)(2) permits class actions for declaratory or

24

injunctive relief where ‘the party opposing the class has acted or

25

refused to act on grounds generally applicable to the class.’”

26

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (2009)

27

(quoting Rule 23(b)(2)).

28

23(b)(2) enables a trial court to determine the appropriateness of

Rule 23(b)(2): Grounds General Applicable to the Class

“In a class-action lawsuit, Rule

17

1

system-wide relief based on the individual experiences of the

2

named plaintiffs.”

3

Armstrong, 275 F.3d at 871.

Plaintiffs in this case seek an injunction to cure alleged

4

violations of their Eighth and Fourteenth Amendment rights

5

resulting from a uniform set of CDCR policies and procedures.

6

These claims fall squarely within the realm of class claims

7

covered by Rule 23(b)(2).

8

(“Plaintiffs’ claims for injunctive relief stemming from allegedly

9

unconstitutional conditions of confinement are the quintessential

Parsons, 289 F.R.D. at 524

United States District Court
For the Northern District of California

10

type of claims that Rule 23(b)(2) was meant to address.”); see

11

also Baby Neal, 43 F.3d at 58-59 (“It is the (b)(2) class which

12

serves most frequently as the vehicle for civil rights actions and

13

other institutional reform cases that receive class action

14

treatment.”).

15

Nevertheless, Defendants contend that certification is

16

inappropriate because Plaintiffs’ requested injunctive relief

17

“exceeds the boundaries of Rule 65(d).”

18

not cited any authority to support this argument and numerous

19

courts have expressly held that plaintiffs are not required to

20

satisfy Rule 65(d) in order to obtain class certification.

21

e.g., Shook v. Board of County Comm’rs, 543 F.3d 597, 605 n.4

22

(10th Cir. 2008) (explaining that plaintiffs need not “come

23

forward with an injunction that satisfies Rule 65(d) with exacting

24

precision at the class certification stage”).

25

class actions challenging the constitutionality of a system-wide

26

policy or practice, it would be difficult for a plaintiff to

27

determine precisely the appropriate scope of injunctive relief at

28
18

Opp. 25.

Defendants have

See,

Indeed, in many

1

the class certification stage.

2

therefore does not justify denying class certification here.

3

Defendants’ Rule 65(d) argument

Defendants next contend that Plaintiffs’ requested injunctive

4

relief “contravenes” the Prison Litigation Reform Act (PLRA)

5

because it would have an “adverse impact on public safety.”

6

25.

7

cite any case law to support this contention.

8

the PLRA that they cite in their brief governs the scope of

9

injunctive relief that a federal court may issue in a “prison

Opp.

As with their Rule 65(d) argument, Defendants have failed to
The provision of

United States District Court
For the Northern District of California

10

conditions” case after liability has been assessed.

11

§ 3626(a)(1) (“Prospective relief in any civil action with respect

12

to prison conditions shall extend no further than necessary to

13

correct the violation of the Federal right of a particular

14

plaintiff or plaintiffs.”).

15

on plaintiffs seeking class certification under Rule 23(b)(2).

16

Accordingly, it does not preclude class certification here.

17

II.

18

18 U.S.C.

It does not impose any requirements

Motion to Intervene
CCPOA is a labor union that represents roughly 27,000 CDCR

19

correctional officers across the State of California.

20

intervene as of right on the grounds that it has an interest in

21

protecting the safety of its members.

22

Plaintiffs’ requested injunctive relief -- particularly the

23

transfer of any inmates out of the Pelican Bay SHU -- would

24

jeopardize the safety of CDCR officers.

25

argues that it should be granted leave to intervene permissively

26

because its motion is timely and it has defenses that share common

27

questions of law or fact with the main action.

28

arguments is persuasive.
19

It moves to

It contends that

In the alternative, it

Neither of these

1

CCPOA has not explained why Defendants cannot adequately
protect the safety interests of CDCR officers in this litigation.

3

Wilderness Society, 630 F.3d at 1177 (requiring that “the

4

applicant’s interest must be inadequately represented by the

5

parties to the action”).

6

present “substantially the same defenses as those the [current]

7

defendants are anticipated to present based on their motion to

8

dismiss.”

9

failed to explain persuasively how its intervention in this action

10
United States District Court
For the Northern District of California

2

would actually help it achieve its stated objective of preventing

11

any inmates from being transferred out of the Pelican Bay SHU.

12

noted above, CDCR has already begun transferring inmates out of

13

the Pelican Bay SHU independently, even as these proceedings were

14

stayed.

15

this action would actually alter CDCR’s existing plans or

16

procedures.

17

protect the safety of CDCR employees, CCPOA may not intervene as

18

of right.

19

In fact, it concedes that it plans to

Docket No. 233, CCPOA Mot. Intervene 8.

CCPOA has also

As

It is therefore not clear that CCPOA’s intervention in

Thus, because intervention is not necessary to

4

Permissive intervention is also inappropriate here.

The only

20

potential defenses that CCPOA would raise are entirely duplicative

21

of arguments that Defendants have already raised, as noted above.

22

Furthermore, CCPOA waited nearly a year after Plaintiffs filed

23

their 2AC before it moved to intervene even though its interests

24
25
26
27
28

4

Notably, courts in this and other districts routinely dismiss
civil rights claims asserted by prisoners against CCPOA on the grounds
that CCPOA is not a proper defendant in such actions. See, e.g., Page
v. Acosta, 2009 WL 1357453, at *2 (N.D. Cal.) (dismissing Pelican Bay
inmate’s claims against CCPOA and noting that the “fact that an alleged
wrongdoer is the member of a union does not support liability for the
union”).

20

1

in this case became “ripe” when that complaint was filed.

2

CCPOA Mot. Intervene 6 (stating that “the issues affecting CCPOA’s

3

interests did not become ripe until the second amended complaint

4

was filed” in September 2012).

5

CCPOA at this stage would neither be productive nor timely.

6

See

For these reasons, intervention by

Although CCPOA’s request to intervene is denied, the Court

7

will grant CCPOA leave to file an amicus brief in support of

8

Defendants’ dispositive motion.

9

CONCLUSION

United States District Court
For the Northern District of California

10

For the reasons set forth above, Plaintiffs’ motion for class

11

certification (Docket No. 195) is GRANTED in part and DENIED in

12

part.

13

The Court certifies the following Due Process Class under

14

Rules 23(b)(1) and 23(b)(2): all inmates who are assigned to an

15

indeterminate term at the Pelican Bay SHU on the basis of gang

16

validation, under the policies and procedures in place as of

17

September 10, 2012.

18

The Court certifies the following Eighth Amendment Class

19

under Rules 23(b)(1) and 23(b)(2): all inmates who are now, or

20

will be in the future, assigned to the Pelican Bay SHU for a

21

period of more than ten continuous years.

22

The Court certifies the five named Plaintiffs who are

23

currently housed in the Pelican Bay SHU to serve as class

24

representatives and certifies Plaintiffs’ counsel to serve as

25

class counsel.

26

CCPOA’s motion to intervene (Docket No. 233) is DENIED.

27

CCPOA may submit an amicus brief in support of Defendants’

28

dispositive motion.

The amicus brief shall not exceed fifteen
21

1

pages and shall not repeat any arguments raised by Defendants in

2

their motion.

3
4
5

A case management conference will be held at 2:00 p.m. on
June 4, 2014.
IT IS SO ORDERED.

6
7
8

Dated: 6/2/2014

CLAUDIA WILKEN
United States District Judge

9

United States District Court
For the Northern District of California

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