Ashker et al v. Schwarzenegger et al

Filing 317


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 TODD ASHKER, et al., Plaintiffs, 5 6 7 8 9 United States District Court For the Northern District of California 10 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 11 for class certification to pursue claims under the Eighth and 12 Fourteenth Amendments of the United States Constitution. 13 Defendants, the Governor of the State of California, Secretary of 14 the California Department of Corrections and Rehabilitation 15 (CDCR), Chief of CDCR’s Office of Correctional Safety, and Warden 16 of Pelican Bay State Prison, oppose the motion. 17 the parties’ submissions and oral argument, the Court grants the 18 motion in part and denies it in part. 19 denies the California Correctional Peace Officers Association’s 20 (CCPOA) motion to intervene. After considering In addition, the Court 21 BACKGROUND 22 Plaintiffs are ten inmates who live or recently lived in 23 solitary confinement at Pelican Bay, a maximum security prison 24 located in Crescent City, California. 25 currently assigned to the Security Housing Unit (SHU), the “most 26 controlled and restrictive housing available” at the prison, where 27 each has lived for over a decade. 28 five inmates were recently transferred out of the Pelican Bay SHU. Five of these inmates are Swift Decl. ¶ 4. The other 1 Although CDCR operates SHUs at three other correctional 2 facilities, this action focuses exclusively on the conditions of 3 confinement within the Pelican Bay SHU. 4 Under CDCR’s current regulations, inmates may be assigned to 5 the SHU if their “conduct endangers the safety of others or the 6 security of the institution.” 7 accord Harrington Decl. ¶ 3. 8 associate of a gang is “deemed to be a severe threat to the safety 9 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 10 [the] SHU for an indeterminate term.” 11 § 3341.5(c)(2)(A). 12 were “validated” by CDCR as gang members or associates, they were 13 all assigned to the SHU for an indeterminate term. 14 Cal. Code Regs. tit. 15, Because all of the Plaintiffs in this case Plaintiffs allege that SHU inmates live in almost total 15 isolation. 16 day in windowless, concrete cells with perforated steel doors and 17 typically leave only to shower or exercise alone in an enclosed 18 pen. 19 inmates sometimes speak to each other through the perforations in 20 their cell doors, they cannot communicate face-to-face and have no 21 contact with inmates in Pelican Bay’s general population. 22 Decl. ¶¶ 20-22; Zubiate Decl. ¶ 28. 23 contact with friends and family outside the prison. 24 ¶¶ 17-19; Dewberry Decl. ¶ 11; Esquivel Decl. ¶¶ 7-8; Franco Decl. 25 ¶¶ 7-8; Reyes Decl. ¶¶ 3-6; Ruiz Decl. ¶ 10; Troxell Decl. ¶ 5. 26 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 27 2012, at which time all ten were assigned to the Pelican Bay SHU. 28 Their complaint alleges that long-term confinement inside the SHU 2 1 violates the Eighth Amendment’s prohibition on cruel and unusual 2 punishment and that CDCR’s procedures for assigning inmates to the 3 SHU violate the Fourteenth Amendment’s guarantee of procedural due 4 process. 5 Plaintiffs seek an injunction compelling CDCR to alleviate certain 6 conditions of confinement in the SHU, adopt new procedures for 7 reviewing SHU assignments, and transfer every inmate who has been 8 assigned to the SHU for more than ten years into the general 9 prison population. United States District Court For the Northern District of California 10 Docket No. 136, Second Am. Compl. (2AC) ¶¶ 177-202. Id. at ¶ 202. Defendants moved to dismiss the complaint in December 2012. 11 They argued, among other things, that Plaintiffs’ due process 12 claim was moot because CDCR had implemented a new set of 13 procedures, collectively known as the “Security Threat Group” 14 (STG) pilot program, in October 2012 to review existing SHU 15 assignments and transfer certain SHU inmates into the general 16 population. 17 order denying Defendants’ motion to dismiss. 18 implementation of the STG pilot program was not sufficient to 19 render Plaintiffs’ claims moot because CDCR had not implemented 20 the program permanently and, at that time, all ten Plaintiffs 21 remained subject to the preexisting procedures. 22 The Court rejected that argument in its April 2013 It found that the Defendants filed their answer to the complaint on April 30, 23 2013. 24 certification under Federal Rules of Civil Procedure 23(b)(1) and 25 23(b)(2). 26 It sought intervention under Rule 24(a) or, in the alternative, 27 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. 28 3 1 Those motions remained pending for nearly a year while the 2 parties engaged in settlement negotiations. 3 however, the parties notified the Court that they were not able to 4 reach a settlement. 5 discovery that the Court had previously entered to allow them to 6 focus on settlement negotiations. 7 stipulation on May 16, 2014 and, at the parties’ request, set a 8 case management conference for June 4, 2014. They filed a stipulation to lift the stay of 9 United States District Court For the Northern District of California 10 11 On May 14, 2014, The Court approved that LEGAL STANDARDS I. Class Certification Plaintiffs seeking to represent a class must satisfy the 12 threshold requirements of Rule 23(a) as well as the requirements 13 for certification under one of the subsections of Rule 23(b). 14 Rule 23(a) provides that a case is appropriate for certification 15 as a class action if 16 (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. 17 18 19 20 21 22 23 24 25 26 27 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). 28 4 1 Subsection (b)(1) applies where the prosecution of separate 2 actions by individual members of the class would create the risk 3 of “inconsistent or varying adjudications with respect to 4 individual members of the class which would establish incompatible 5 standards of conduct for the party opposing the class,” or of 6 adjudications “which would as a practical matter be dispositive of 7 the interests of the other members not parties to the 8 adjudications or substantially impair or impede their ability to 9 protect their interests.” Fed. R. Civ. P. 23(b)(1). United States District Court For the Northern District of California 10 Subsection (b)(2) applies where “the party opposing the class 11 has acted or refused to act on grounds generally applicable to the 12 class, thereby making appropriate final injunctive relief or 13 corresponding declaratory relief with respect to the class as a 14 whole.” 15 parties charged with unlawful, class-based discrimination are 16 prime examples” of Rule 23(b)(2) actions. 17 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 19 certify, it must demonstrate that each element of Rule 23 is 20 satisfied; a district court may certify a class only if it 21 determines that the plaintiff has borne this burden. 22 Co. of Sw. v. Falcon, 457 U.S. 147, 158-61 (1982); Doninger v. 23 Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir. 1977). 24 general, the court must take the substantive allegations of the 25 complaint as true. 26 Cir. 1975). 27 analysis,’” which may require it “‘to probe behind the pleadings 28 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 2 Falcon, 457 U.S. at 160-61). 3 will entail some overlap with the merits of the plaintiff’s 4 underlying claim. 5 2551. 6 court may consider material beyond the pleadings and require 7 supplemental evidentiary submissions by the parties. 8 F.2d at 901 n.17. 9 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 10 consider ‘the persuasiveness of the evidence presented.’” 11 v. Verizon Cal., Inc., 2012 WL 10381, at *2 (C.D. Cal.) (quoting 12 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 13 2011)). 14 whether a class should be certified. 15 937, 946 (9th Cir. 2003); Burkhalter Travel Agency v. MacFarms 16 Int’l, Inc., 141 F.R.D. 144, 152 (N.D. Cal. 1991). 17 II. 18 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 19 applicant must claim an interest the protection of which may, as a 20 practical matter, be impaired or impeded if the lawsuit proceeds 21 without the applicant. 22 630 F.3d 1173, 1177 (9th Cir. 2011). 23 four-part test to motions under Rule 24(a)(2): 24 25 26 27 28 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 6 1 applicant’s interest must be inadequately protected by the parties to the action. 2 Id. (quoting Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 3 1993)). 4 The Ninth Circuit interprets Rule 24(a)(2) broadly in favor 5 of intervention. 6 intervene under Rule 24(a)(2), a district court is required “to 7 take all well-pleaded, nonconclusory allegations in the motion 8 . . . as true absent sham, frivolity or other objections.” 9 Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. United States District Court For the Northern District of California 10 Id. at 1179. In evaluating a motion to Sw. 2001). 11 Alternatively, a court may, in its discretion, permit 12 intervention under Rule 24(b)(1)(B) by anyone who “has a claim or 13 defense that shares with the main action a common question of law 14 or fact.” 15 whether the intervention will unduly delay or prejudice the 16 adjudication of the original parties’ rights.” 17 24(b)(3). In exercising its discretion, a court should “consider 18 19 20 Fed. R. Civ. P. DISCUSSION I. Motion for Class Certification Plaintiffs move to certify two classes of inmates under Rules 21 23(b)(1) and 23(b)(2). 22 Class” consisting of all inmates “serving indeterminate sentences 23 at the Pelican Bay SHU on the basis of gang validation, none of 24 whom have been or will be afforded meaningful review or 25 procedurally adequate review of their confinement.” 26 195, Class Cert. Mot. 1-2. First, they move to certify a “Due Process Docket No. Second, they move to certify an Eighth 27 28 7 1 1 Amendment Class 2 be in the future, imprisoned by Defendants at the Pelican Bay SHU 3 under the conditions and pursuant to the policies described below 4 for longer than 10 continuous years.” 5 consisting of all inmates “who are now, or will Id. at 2. Defendants contend that Plaintiffs’ proposed definition of 6 the Due Process Class is ambiguous and that neither the proposed 7 Due Process Class nor the proposed Eighth Amendment Class 8 satisfies the requirements of Rule 23. 9 below, these arguments do not justify denying class certification. As explained more fully United States District Court For the Northern District of California 10 A. 11 Plaintiffs’ proposed Due Process Class contains the terms Due Process Class Definition 12 “meaningful review” and “procedurally adequate review,” neither of 13 which is defined in the complaint. 14 because these terms lack a concrete meaning, the proposed class 15 definition is ambiguous and precludes certification. 16 eBay Inc., 257 F.R.D. 563, 567 (N.D. Cal. 2009) (denying class 17 certification because an ambiguous term in proposed class 18 definition made “no reference to objective criteria” and meant 19 that “the class members themselves might not know if they were 20 members of the class”); Whiteway v. FedEx Kinko’s Office & Print 21 Servs., 2006 WL 2642528, at *3 (N.D. Cal.) (“An implied 22 prerequisite to certification is that the class must be 23 sufficiently definite.”). Defendants contend that, See Mazur v. 24 25 1 26 27 28 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. 8 1 Although Defendants are correct that Plaintiffs’ proposed 2 class definition is ambiguous, this ambiguity does not preclude 3 certification of the Due Process Class. 4 acknowledged at the hearing, the ambiguous terms can simply be 5 removed from their proposed class definition. 6 Due Process Class would simply consist of all Pelican Bay inmates 7 who are currently assigned to an indeterminate SHU term on the 8 basis of gang validation. 9 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 10 declaratory and injunctive relief that Plaintiffs seek. 11 Furthermore, CDCR’s own regulations treat this group as a distinct 12 class and provide a straightforward framework for distinguishing 13 between class members and non-members. 14 15, § 3341.5(c) (distinguishing “Indeterminate SHU Segregation” 15 from “Determinate SHU Segregation” and requiring all validated 16 gang members and associates to be assigned to indeterminate 17 terms). 18 Due Process Class definition might require that the class 19 definition be amended, they do not require that class 20 certification be denied. See Cal. Code Regs. tit. Thus, while the ambiguous terms of Plaintiffs’ proposed 21 B. 22 Defendants have acknowledged that there are “approximately Rule 23(a)(1): Numerosity 23 1,100 inmates housed in Pelican Bay’s SHU, the majority of which 24 are validated gang members and associates.” 25 Plaintiffs assert that several hundred of these inmates have lived 26 in the SHU for over a decade. 27 satisfy the numerosity requirement for both the proposed Due 28 Process Class and the proposed Eighth Amendment Class. Swift Decl. ¶ 6. These numbers are sufficient to 9 1 C. 2 As noted above, Rule 23(a)(2) requires that there be Rule 23(a)(2): Commonality 3 “questions of law or fact common to the class.” 4 23(a)(2). 5 preclude class certification if fewer than all questions of law or 6 fact are common to the class: 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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 28 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 5 that were in place before the STG program was implemented and 6 which remain codified in CDCR’s official regulations. 7 some inmates remain subject to these procedures -- which represent 8 the core of the “system-wide practice” that Plaintiffs seek to 9 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. 12 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.”), 15 abrogated on other grounds by Johnson v. California, 543 U.S. 499, 16 504–05 (2005); see also Dukes, 131 S. Ct. at 2254 (recognizing 17 that a “uniform employment practice . . . would provide the 18 commonality needed for a class action” (emphasis added)). 19 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 21 excluded from the proposed Due Process Class. 22 process claim, as currently plead, only challenges the procedures 23 that were in place before CDCR implemented the STG program. 24 inmates who were placed in the STG program were subject to a 25 different set of procedures and lack commonality with inmates who 26 have only received the preexisting procedures. 27 the hearing, if Plaintiffs seek to challenge the STG program 28 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 3 “presents a host of individual questions not subject to classwide 4 proof.” 5 individual legal and factual questions is not sufficient to 6 preclude class certification. 7 questions of fact and law need not be common to satisfy the 8 rule.”). 9 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 14 Pelican Bay SHU exposes inmates to a “sufficiently serious” 15 deprivation of basic human needs and (2) whether Defendants acted 16 with a “sufficiently culpable state of mind” in assigning inmates 17 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’” 21 and the “prison official must have a ‘sufficiently culpable state 22 of mind’”). 23 the conditions inside the Pelican Bay SHU and the mental health 24 risks associated with long-term confinement there are common to 25 all putative class members. 26 (“[T]here is a clear and consistent pattern in the stories 27 articulated by these 10 men about the psychological consequences 28 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 17 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 23 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. 20 21 22 23 24 25 26 27 28 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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