Ashker et al v. Schwarzenegger et al

Filing 632

ORDER ON PLAINTIFFS MOTION FOR DE NOVO REVIEW OF RETENTION OF FOUR CLASS MEMBERS IN SHU AND SEALING MOTIONS by Judge Claudia Wilken granting 589 Administrative Motion to File Under Seal; granting 610 Administrative Motion to File Under Seal; granting 620 Administrative Motion to File Under Seal; granting 624 Administrative Motion to File Under Seal; granting 626 Administrative Motion to File Under Seal. (napS, COURT STAFF) (Filed on 9/6/2016)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 TODD ASHKER et al., 5 6 7 8 9 United States District Court For the Northern District of California 10 11 No. C 09-05796 CW Plaintiffs, ORDER ON PLAINTIFFS’ MOTION FOR DE NOVO REVIEW OF RETENTION OF FOUR CLASS MEMBERS IN SHU AND SEALING MOTIONS v. GOVERNOR OF THE STATE OF CALIFORNIA et al., Defendants. (DOCKET NOS. 589, 590, 610, 620, 624 626) ________________________________/ Plaintiffs Todd Ashker et al. move for a de novo 12 determination of a matter the parties agreed would be decided by 13 Magistrate Judge Vadas and reviewed by this Court under 28 U.S.C. 14 § 636(b)(1)(B) regarding the retention of four class members in 15 the Security Housing Unit (SHU) (Docket No. 590). 16 move to file under seal portions of, and exhibits attached to, 17 that motion (Docket No. 589), Plaintiffs’ reply (Docket No. 620) 18 and Plaintiffs’ supplemental brief (Docket No. 626). 19 the Governor of the State of California et al. oppose the motion 20 regarding the four class members. 21 under seal documents supporting Defendants’ Consolidated 22 Opposition to Plaintiffs’ Motions for De Novo Determination of 23 Dispositive Matters (Docket No. 610) and a transcript attached to 24 their supplemental brief (Docket No. 624). 25 the Court GRANTS the parties’ motions to seal (Docket Nos. 589, 26 620, 626, 610, 624), DENIES Plaintiffs’ request for an evidentiary 27 hearing before this Court and RECOMMITS Plaintiffs’ motion to 28 Plaintiffs also Defendants Defendants also move to file As discussed below, 1 Judge Vadas to consider the parties’ new information and arguments 2 (Docket No. 590). 3 I. 4 Motions to Seal a. Legal Standard 5 Pursuant to Civil Local Rule 79-5, a party seeking to file a 6 document under seal must establish that the portions sought to be 7 sealed “are privileged, protectable as a trade secret or otherwise 8 entitled to protection under the law.” 9 request must be narrowly tailored to seek sealing only of sealable United States District Court For the Northern District of California 10 Civ. L.R. 79-5(b). material, and must conform with Civil L.R. 79-5(d).” 11 “The Id. “Historically, courts have recognized a ‘general right to 12 inspect and copy public records and documents, including judicial 13 records and documents.’” 14 F.3d 1172, 1178 (9th Cir. 2006) (citation omitted). 15 particular court record is one ‘traditionally kept secret,’ a 16 ‘strong presumption in favor of access’ is the starting point.” 17 Id. 18 1122, 1135 (9th Cir. 2003)). 19 Kamakana v. City & Cty. of Honolulu, 447 “Unless a (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d “Two standards generally govern motions to seal documents 20 like the one at issue here. 21 standard applies to most judicial records.” 22 Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir. 2010) (footnote 23 omitted). 24 heart of the interest in ensuring the ‘public’s understanding of 25 the judicial process and of significant public events.’” 26 Kamakana, 447 F.3d at 1179 (citation omitted). 27 a party must “articulate compelling reasons supported by specific 28 factual findings that outweigh the general history of access and First, a ‘compelling reasons’ Pintos v. Pac. Resolving “a dispute on the merits . . . is at the 2 For this standard, 1 the public policies favoring disclosure, such as the public 2 interest in understanding the judicial process.” 3 (brackets, quotation marks and citations omitted). 4 Id. at 1178-79 “On the other hand, records attached to motions that are only 5 ‘tangentially related to the merits of a case’ are not subject to 6 the strong presumption of access.” 7 Semiconductor Corp., 2016 WL 3879193, at *7 (N.D. Cal.) (quoting 8 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 9 (9th Cir. 2016)); see also Ctr. for Auto Safety, 809 F.3d at 1098 Thomas v. Magnachip United States District Court For the Northern District of California 10 (“Most litigation in a case is not literally ‘dispositive,’ but 11 nevertheless involves important issues and information to which 12 our case law demands the public should have access.”). 13 this exception, a party need only satisfy the less exacting ‘good 14 cause’ standard.” 15 Rule 26(c) states, “The court may, for good cause, issue an order 16 to protect a party or person from annoyance, embarrassment, 17 oppression, or undue burden or expense . . . .” 18 26(c). 19 “Under Ctr. for Auto Safety, 809 F.3d at 1097. As Fed. R. Civ. P. b. Application to Pending Motions to Seal 20 Plaintiffs appear to base their sealing motions on 21 Defendants’ designations of the materials at issue as highly 22 confidential under a protective order in this case because they 23 “contain[] highly confidential information relating to inmate 24 disciplinary proceedings that Defendants claim would harm 25 institutional safety and security.” 26 of Carmen E. Bremer in Support of Plaintiffs’ Administrative 27 Motion to File Under Seal ¶¶ 2–8. 28 provides, “Within 4 days of the filing of the Administrative Docket No. 589-1, Declaration Civil Local Rule 79-5(e)(1) 3 1 Motion to File Under Seal, the Designating Party must file a 2 declaration as required by subsection 79-5(d)(1)(A) establishing 3 that all of the designated material is sealable.” 4 not filed declarations establishing that all of the designated 5 material is sealable. 6 Defendants have Whereas Plaintiffs seek to apply the “good cause” standard 7 because the material at issue is attached to a non-dispositive 8 motion, see, e.g., Docket No. 620-1, Bremer Dec. ¶ 2, and 9 Defendants’ motions do not clearly articulate a standard, United States District Court For the Northern District of California 10 Defendants’ proposed orders would find “compelling reasons to file 11 the information [in relation to their Opposition filings] under 12 seal,” Docket No. 610-4 Proposed Order Granting Defendants’ Motion 13 to File Under Seal; Docket No. 624-2 Proposed Order Granting 14 Defendants’ Motion to File Transcript Under Seal. 15 The Court GRANTS the parties’ motions to seal and need not 16 decide whether the “good cause” or “compelling reasons” standard 17 applies because the materials at issue are sealable under either. 18 Publicly revealing any information about the rule violation 19 reports and hearings would lead to individual safety and 20 institutional security concerns. 21 22 II. Motion for De Novo Review of Retention of Four Class Members in the SHU a. Background 23 On January 20, 2015, CDCR began investigating an alleged 24 conspiracy to murder a named prisoner. Plaintiffs’ Motion at 1. 25 The investigation relied, in part, on notes between prisoners that 26 CDCR found between January and April 2015. 27 28 4 Id. 1 In September 2015, CDCR issued rule violation reports (RVRs) 2 to six individuals (Antonio Guillen, George Franco, Rudolpho 3 Miramontes, Donald Moran, Samuel Luna and Matt Rocha) for 4 conspiracy to murder the named prisoner. 5 individuals were serving indeterminate terms in the Pelican Bay 6 SHU because CDCR had “validated” them as “affiliates” of a 7 Security Threat Group (STG). 8 spent nearly twenty-five years in solitary confinement; Moran had 9 spent more than twenty-one years in solitary confinement; Guillen At that time, the six Plaintiffs’ Motion at 1. Franco had United States District Court For the Northern District of California 10 had spent more than sixteen years in solitary confinement; and 11 Luna had spent nearly eighteen years in solitary confinement. 12 Plaintiffs’ Motion at 2 n.1. 13 Paragraph 25 of the Settlement Agreement states in part: 14 If an inmate has not been found guilty of a SHU-eligible rule violation with a proven STG nexus within the last 24 months, he shall be released from the SHU and transferred to a General Population level IV 180-design facility, or other general population institution consistent with his case factors. 15 16 17 Settlement Agreement ¶ 25. Paragraph 34 states in part: 18 19 20 21 22 23 24 25 CDCR shall adhere to the standards for the consideration of and reliance on confidential information set forth in Title 15 of the California Code of Regulations, section 3321. To ensure that the confidential information used against inmates is accurate, CDCR shall develop and implement appropriate training for impacted staff members who make administrative determinations based on confidential information as part of their assigned duties, consistent with the general training provisions set forth in Paragraph 35. Settlement Agreement ¶ 34. At hearings on the alleged rule violations in October and 26 November 2015, CDCR found each of the six individuals guilty of 27 conspiracy to commit murder. 28 associate warden reversed the guilty finding as to Rocha for lack Plaintiffs’ Motion at 2. 5 Later, an 1 of evidence. 2 County District Attorney’s Office; the office later declined to 3 pursue criminal charges. 4 Id. CDCR submitted each case to the Del Norte Id. In January 2016, Plaintiffs’ counsel requested a copy of the 5 confidential file used in these disciplinary hearings, to which 6 Defendants objected. 7 reviewed the file in camera. 8 9 Plaintiffs’ Motion at 2. Judge Vadas Id. On February 1, 2016, Plaintiffs’ counsel wrote to Judge Vadas that these hearings involved violations of paragraph 34 of the United States District Court For the Northern District of California 10 Settlement Agreement and state law regulations, and again sought a 11 copy of the confidential file. Plaintiffs’ Motion at 2. 12 On March 21, 2016, CDCR indicated to Judge Vadas that it was 13 withdrawing the five remaining RVRs, planned to reissue the RVRs, 14 and planned to hold another set of hearings on the reissued RVRs. 15 Plaintiffs’ Motion at 2. 16 Defendants provide Plaintiffs a redacted copy of the confidential 17 file. 18 Separately, Judge Vadas ordered that Id. On May 10, 2016, Plaintiffs filed a motion before Judge Vadas 19 to enjoin CDCR from continuing to hold the five prisoners in the 20 SHU. 21 22 23 24 25 26 27 28 Paragraph 53 of the Settlement Agreement states in part: If Plaintiffs contend that CDCR has not substantially complied with any other terms of this Agreement that do not amount to current, ongoing, systemic violations as alleged in the Second Amended Complaint or Supplemental Complaint of the Eighth Amendment or the Due Process Clause of the Fourteenth Amendment of the United States Constitution, they may seek enforcement by order of this Court. . . . If the parties are unable to resolve the issue informally, Plaintiffs may seek enforcement of the Agreement by seeking an order upon noticed motion before Magistrate Judge Vadas. It shall be Plaintiffs’ burden in making such a motion to demonstrate by a preponderance of the evidence that Defendants have not substantially complied with the terms of the Agreement. Defendants shall have an opportunity to respond to any 6 such evidence presented to the Court and to present their own evidence in opposition to Plaintiffs’ motion. If Plaintiffs satisfy their burden of proof by demonstrating substantial noncompliance with the Agreement’s terms by a preponderance of the evidence, then Magistrate Judge Vadas may issue an order to achieve substantial compliance with the Agreement’s terms. An order issued by Magistrate Judge Vadas under this Paragraph is subject to review under 28 U.S.C. § 636(b)(1)(B). 1 2 3 4 5 6 Settlement Agreement ¶ 53. 7 In late May 2016, CDCR reissued RVRs against Franco, Moran, 8 Luna and Guillen for conspiracy to murder the named prisoner. 9 Plaintiffs’ Motion at 4. CDCR indicated that it would not reissue United States District Court For the Northern District of California 10 an RVR against Miramontes. 11 confidential file CDCR previously had provided to Plaintiffs’ 12 counsel, these RVRs included “new [Confidential Disclosure Forms 13 (CDC 1030s)] disclosing more of the confidential information 14 relevant to the charges.” 15 Id. at 4 n.4. In addition to the Id. at 4. On June 10, 2016, Judge Vadas heard argument on Plaintiffs’ 16 motion. 17 matter that, under paragraphs 49 and 53, “this is the exact issue 18 that should be brought to [Judge Vadas] for determination. 19 focuses on the length of time that some of the remaining . . . 20 plaintiffs . . . have in the SHU and when and how they’re going to 21 be removed from the SHU.” 22 45. 23 Judge Vadas determined as a threshold jurisdictional It Transcript of June 10, 2016 Hearing at Initially, Judge Vadas explained that CDCR did not violate 24 the relevant provisions of the Settlement Agreement, but “[could 25 not] say any more because that portion is under seal.” 26 47. 27 was ruling on the basis of information that CDCR had not provided 28 to Plaintiffs’ counsel, Judge Vadas explained that he in fact Id. at 46– After Plaintiffs’ counsel expressed concern that Judge Vadas 7 1 relied only on the relevant information CDCR had provided to 2 Plaintiffs’ counsel. See id. at 49. 3 In an unsealed portion of the transcript, Judge Vadas stated: 4 I find that given what I have heard, especially in light of the fact that a new hearing is being conducted regarding this matter, that the defendants remain in substantial compliance with the terms of the agreement and I’m going to deny counsel’s motion to enjoin CDCR from continuing to retain the five prisoners in the SHU until the Department has reviewed the information another time. 5 6 7 8 Transcript of June 10, 2016 Hearing at 60. 9 Separately, regarding Plaintiffs’ argument that Defendants 10 United States District Court For the Northern District of California failed to provide to the four class members the evidence on which 11 Defendants relied in reissuing RVRs, Judge Vadas ordered 12 Defendants to provide new Confidential Disclosure Forms (CDC 13 1030s) and reissued RVRs to Plaintiffs no later than June 17. 14 Transcript of June 10, 2016 Hearing at 58–59. 15 On June 24, 2016, CDCR provided the four class members 16 additional Confidential Disclosure Forms, which referred to 17 evidence CDCR had discovered earlier that month. Plaintiffs’ 18 Motion at 4. 19 CDCR held another set of hearings for each of the four class 20 members and each reissued RVR, resulting in a finding of guilt for 21 each one. See Plaintiffs’ Motion at 5. 22 b. Standard of Review 23 This Court reviews de novo Magistrate Judge Vadas’s decision. 24 Settlement Agreement ¶ 53 (“An order issued by Magistrate Judge 25 Vadas under this Paragraph is subject to review under 28 U.S.C. 26 § 636(b)(1)(B).”). “A judge of the court may accept, reject, or 27 modify, in whole or in part, the findings or recommendations made 28 8 1 by the magistrate judge. 2 evidence or recommit the matter to the magistrate judge with 3 instructions.” 4 5 The judge may also receive further 28 U.S.C. § 636(b)(1). c. Substantial Compliance The Court understands Plaintiffs to seek to “demonstrate by a 6 preponderance of the evidence that Defendants have not 7 substantially complied with the terms of the Agreement.” 8 Settlement Agreement ¶ 53. 9 compliance” means more than “taking significant steps toward As Plaintiffs argue, “substantial United States District Court For the Northern District of California 10 compliance . . . .” 11 Cir. 2016). 12 substantially complied with an obligation only where any deviation 13 is ‘unintentional and so minor or trivial as not substantially to 14 defeat the object which the parties intend to accomplish.’” 15 (quoting Wells Benz, Inc. v. United States, 333 F.2d 89, 92 (9th 16 Cir. 1964) (citation and some quotation marks omitted)). 17 standard doesn’t require perfection. . . . 18 permitted so long as they don’t defeat the object of the decree.” 19 Id. (citation omitted). 20 Defendants have complied with each term of the Agreement. 21 at 1081 (“Like terms in a contract, distinct provisions of consent 22 decrees are independent obligations, each of which must be 23 satisfied before there can be a finding of substantial 24 compliance.”). 25 26 27 28 Rouser v. White, 825 F.3d 1076, 1082 (9th “[I]n California a party is deemed to have Id. “This Deviations are The Court also considers whether See id. d. Discussion i. Jurisdiction and Alternative Forms of Relief Defendants, as a threshold matter, contend that Plaintiffs’ motion circumvents the usual process for prisoners to challenge 9 1 disciplinary findings: petitions for writs of habeas corpus or 2 civil rights suits filed under 42 U.S.C. § 1983. 3 Opposition at 7–8. 4 Settlement Agreement does not support Plaintiffs’ position and 5 that Plaintiffs do not address paragraph 51—“The parties shall 6 agree on a mechanism by which CDCR shall promptly respond to 7 concerns raised by Plaintiffs’ counsel regarding individual class 8 members.” 9 Defendants’ Defendants also argue that paragraph 53 of the Defendants’ Opposition at 8 n.4. The Court, however, must determine whether Plaintiffs United States District Court For the Northern District of California 10 demonstrate that Defendants are not in substantial compliance with 11 the terms of the Settlement Agreement, including paragraph 25’s 12 limitations on when and how Defendants may place an inmate in the 13 SHU on the basis of a SHU-eligible rule violation determination. 14 See Settlement Agreement ¶ 25. 15 is appropriate under paragraphs 49 and 53. 16 10, 2016 Hearing at 45. 17 challenge disciplinary findings does not preclude this review. 18 Nor does the parties’ failure to agree to a mechanism through 19 which Defendants could respond to class members’ concerns pursuant 20 to paragraph 51 preclude review of Plaintiffs’ motion. 21 Court considers Plaintiffs’ motion. Judge Vadas determined that review See Transcript of June The existence of alternative processes to Thus, the 22 ii. Mootness, Ripeness and Evidence before Judge Vadas 23 Plaintiffs argue that procedural due process was denied when 24 CDCR denied the four class members relevant, favorable and 25 potentially exculpatory evidence without providing sufficient 26 reason for doing so. 27 88 (9th Cir. 1987); Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 28 2003); Cal. Code Regs. tit. 15, § 3321(b)(3). See Zimmerlee v. Keeney, 831 F.2d 183, 186– 10 In turn, Plaintiffs 1 seek a declaration that both sets of RVRs “violate CDCR’s 2 regulations on the use of confidential information, the Settlement 3 Agreement and constitutional due process protections.” 4 Plaintiffs’ Motion at 5–6. 5 relating to the initial RVRs are moot now that CDCR has reissued 6 and reheard each RVR. 7 voluntarily reissued the RVRs, but have not cured the procedural 8 due process issues. 9 actions did not correct earlier procedural due process violations, Defendants counter that any claims Plaintiffs respond that Defendants Plaintiffs’ Reply at 4. If Defendants’ United States District Court For the Northern District of California 10 then Plaintiffs’ claims would not be moot. 11 consider whether there remain uncorrected procedural due process 12 violations. 13 Thus, the Court must To the extent that Plaintiffs allege violations of Settlement 14 Agreement paragraph 34 arising from CDCR’s use of confidential 15 information in reissuing and rehearing the RVRs, Defendants argue 16 that Plaintiffs failed to present this issue to Judge Vadas and, 17 thus, failed to comply with the Settlement Agreement’s dispute 18 resolution procedures. 19 Plaintiffs respond that the Court must review the new RVRs to 20 determine whether Defendants have cured procedural due process 21 violations and so, as a practical matter, must review the new RVRs 22 that Judge Vadas has not reviewed to rule on this motion. 23 Plaintiffs’ Reply at 5. 24 present the new RVRs to Judge Vadas before the June 10, 2016 25 hearing only because Defendants delayed reissuing those RVRs until 26 May 31, 2016, and did not produce them to Plaintiffs’ counsel 27 until after the June 10 hearing. 28 Defendants would have this Court review Judge Vadas’s ruling on See Settlement Agreement ¶¶ 48–50, 52–53. Plaintiffs explain that they did not Plaintiffs point out that 11 1 sufficiency of the evidence, but not review his ruling on 2 procedural due process violations, without providing meaningful 3 reason to distinguish between the two. 4 Plaintiffs then note that Defendants make no argument against the 5 merits of Plaintiffs’ position on procedural issues. 6 Reply at 6–7. 7 Plaintiffs’ Reply at 6. Plaintiffs’ Regarding the evidentiary basis for each rule violation, Plaintiffs acknowledge that CDCR relied on information from a new 9 confidential informant when it reissued and reheard the RVRs, but 10 United States District Court For the Northern District of California 8 argue that there are contradictions in the record arising from the 11 new information and reliability concerns regarding that 12 information. 13 class members from solitary confinement or, in the alternative, an 14 evidentiary hearing regarding the new information. 15 counter that Plaintiffs, in effect, ask this Court to reweigh the 16 evidence on which CDCR relied in reaching its rule violation 17 determinations. 18 Plaintiffs seek a ruling for the release of the four Defendants Finally, Plaintiffs argue that CDCR has violated state 19 regulations regarding time bars for issuing RVRs and that “the 20 timing of the old and new RVRs suggests that CDCR is misusing the 21 disciplinary process to maintain the alleged co-conspirators in 22 SHU without justification.” 23 Code Regs. tit. 15, § 3320(a). 24 Plaintiffs’ Motion at 19. See Cal. “[A] district court has discretion, but is not required, to 25 consider evidence presented for the first time in a party’s 26 objection to a magistrate judge’s recommendation.” 27 v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). 28 12 United States 1 The Court DENIES Plaintiffs’ request for an evidentiary 2 hearing and RECOMMITS this motion to Judge Vadas to review the new 3 evidence and the parties’ arguments. 4 the Settlement Agreement and Judge Vadas’s experience and 5 expertise cut in favor of referring the matter to Judge Vadas to 6 decide the issues in the first instance. 7 8 9 The process envisioned in III. Conclusion The Court GRANTS the parties’ motions to seal (Docket Nos. 589, 620, 626, 610, 624), DENIES Plaintiffs’ request for an United States District Court For the Northern District of California 10 evidentiary hearing before this Court and RECOMMITS Plaintiffs’ 11 motion to Judge Vadas to consider the new evidence and the 12 parties’ arguments (Docket No. 590). 13 14 15 IT IS SO ORDERED. Dated: September 6, 2016 CLAUDIA WILKEN United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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