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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TODD ASHKER et al.,

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United States District Court
For the Northern District of California

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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

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determination of a matter the parties agreed would be decided by

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Magistrate Judge Vadas and reviewed by this Court under 28 U.S.C.

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§ 636(b)(1)(B) regarding the retention of four class members in

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the Security Housing Unit (SHU) (Docket No. 590).

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move to file under seal portions of, and exhibits attached to,

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that motion (Docket No. 589), Plaintiffs’ reply (Docket No. 620)

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and Plaintiffs’ supplemental brief (Docket No. 626).

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the Governor of the State of California et al. oppose the motion

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regarding the four class members.

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under seal documents supporting Defendants’ Consolidated

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Opposition to Plaintiffs’ Motions for De Novo Determination of

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Dispositive Matters (Docket No. 610) and a transcript attached to

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their supplemental brief (Docket No. 624).

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the Court GRANTS the parties’ motions to seal (Docket Nos. 589,

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620, 626, 610, 624), DENIES Plaintiffs’ request for an evidentiary

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hearing before this Court and RECOMMITS Plaintiffs’ motion to

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Plaintiffs also

Defendants

Defendants also move to file

As discussed below,

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Judge Vadas to consider the parties’ new information and arguments

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(Docket No. 590).

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I.

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Motions to Seal
a. Legal Standard

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Pursuant to Civil Local Rule 79-5, a party seeking to file a

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document under seal must establish that the portions sought to be

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sealed “are privileged, protectable as a trade secret or otherwise

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entitled to protection under the law.”

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request must be narrowly tailored to seek sealing only of sealable

United States District Court
For the Northern District of California

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Civ. L.R. 79-5(b).

material, and must conform with Civil L.R. 79-5(d).”

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“The

Id.

“Historically, courts have recognized a ‘general right to

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inspect and copy public records and documents, including judicial

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records and documents.’”

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F.3d 1172, 1178 (9th Cir. 2006) (citation omitted).

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particular court record is one ‘traditionally kept secret,’ a

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‘strong presumption in favor of access’ is the starting point.”

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Id.

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1122, 1135 (9th Cir. 2003)).

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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

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like the one at issue here.

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standard applies to most judicial records.”

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Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir. 2010) (footnote

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omitted).

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heart of the interest in ensuring the ‘public’s understanding of

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the judicial process and of significant public events.’”

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Kamakana, 447 F.3d at 1179 (citation omitted).

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a party must “articulate compelling reasons supported by specific

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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

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For this standard,

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the public policies favoring disclosure, such as the public

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interest in understanding the judicial process.”

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(brackets, quotation marks and citations omitted).

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Id. at 1178-79

“On the other hand, records attached to motions that are only

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‘tangentially related to the merits of a case’ are not subject to

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the strong presumption of access.”

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Semiconductor Corp., 2016 WL 3879193, at *7 (N.D. Cal.) (quoting

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Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101

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(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

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(“Most litigation in a case is not literally ‘dispositive,’ but

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nevertheless involves important issues and information to which

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our case law demands the public should have access.”).

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this exception, a party need only satisfy the less exacting ‘good

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cause’ standard.”

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Rule 26(c) states, “The court may, for good cause, issue an order

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to protect a party or person from annoyance, embarrassment,

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oppression, or undue burden or expense . . . .”

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26(c).

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“Under

Ctr. for Auto Safety, 809 F.3d at 1097.

As

Fed. R. Civ. P.

b. Application to Pending Motions to Seal

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Plaintiffs appear to base their sealing motions on

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Defendants’ designations of the materials at issue as highly

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confidential under a protective order in this case because they

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“contain[] highly confidential information relating to inmate

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disciplinary proceedings that Defendants claim would harm

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institutional safety and security.”

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of Carmen E. Bremer in Support of Plaintiffs’ Administrative

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Motion to File Under Seal ¶¶ 2–8.

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provides, “Within 4 days of the filing of the Administrative

Docket No. 589-1, Declaration

Civil Local Rule 79-5(e)(1)

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Motion to File Under Seal, the Designating Party must file a

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declaration as required by subsection 79-5(d)(1)(A) establishing

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that all of the designated material is sealable.”

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not filed declarations establishing that all of the designated

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material is sealable.

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Defendants have

Whereas Plaintiffs seek to apply the “good cause” standard

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because the material at issue is attached to a non-dispositive

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motion, see, e.g., Docket No. 620-1, Bremer Dec. ¶ 2, and

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Defendants’ motions do not clearly articulate a standard,

United States District Court
For the Northern District of California

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Defendants’ proposed orders would find “compelling reasons to file

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the information [in relation to their Opposition filings] under

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seal,” Docket No. 610-4 Proposed Order Granting Defendants’ Motion

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to File Under Seal; Docket No. 624-2 Proposed Order Granting

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Defendants’ Motion to File Transcript Under Seal.

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The Court GRANTS the parties’ motions to seal and need not

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decide whether the “good cause” or “compelling reasons” standard

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applies because the materials at issue are sealable under either.

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Publicly revealing any information about the rule violation

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reports and hearings would lead to individual safety and

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institutional security concerns.

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II.

Motion for De Novo Review of Retention of Four Class
Members in the SHU
a. Background

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On January 20, 2015, CDCR began investigating an alleged
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conspiracy to murder a named prisoner.

Plaintiffs’ Motion at 1.

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The investigation relied, in part, on notes between prisoners that
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CDCR found between January and April 2015.
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Id.

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In September 2015, CDCR issued rule violation reports (RVRs)

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to six individuals (Antonio Guillen, George Franco, Rudolpho

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Miramontes, Donald Moran, Samuel Luna and Matt Rocha) for

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conspiracy to murder the named prisoner.

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individuals were serving indeterminate terms in the Pelican Bay

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SHU because CDCR had “validated” them as “affiliates” of a

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Security Threat Group (STG).

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spent nearly twenty-five years in solitary confinement; Moran had

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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

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had spent more than sixteen years in solitary confinement; and

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Luna had spent nearly eighteen years in solitary confinement.

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Plaintiffs’ Motion at 2 n.1.

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Paragraph 25 of the Settlement Agreement states in part:

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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.

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Settlement Agreement ¶ 25.

Paragraph 34 states in part:

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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

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November 2015, CDCR found each of the six individuals guilty of

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conspiracy to commit murder.

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associate warden reversed the guilty finding as to Rocha for lack

Plaintiffs’ Motion at 2.

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Later, an

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of evidence.

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County District Attorney’s Office; the office later declined to

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pursue criminal charges.

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Id.

CDCR submitted each case to the Del Norte

Id.

In January 2016, Plaintiffs’ counsel requested a copy of the

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confidential file used in these disciplinary hearings, to which

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Defendants objected.

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reviewed the file in camera.

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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

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Settlement Agreement and state law regulations, and again sought a

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copy of the confidential file.

Plaintiffs’ Motion at 2.

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On March 21, 2016, CDCR indicated to Judge Vadas that it was

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withdrawing the five remaining RVRs, planned to reissue the RVRs,

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and planned to hold another set of hearings on the reissued RVRs.

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Plaintiffs’ Motion at 2.

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Defendants provide Plaintiffs a redacted copy of the confidential

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file.

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Separately, Judge Vadas ordered that

Id.
On May 10, 2016, Plaintiffs filed a motion before Judge Vadas

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to enjoin CDCR from continuing to hold the five prisoners in the

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SHU.

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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
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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).

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Settlement Agreement ¶ 53.

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In late May 2016, CDCR reissued RVRs against Franco, Moran,

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Luna and Guillen for conspiracy to murder the named prisoner.

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Plaintiffs’ Motion at 4.

CDCR indicated that it would not reissue

United States District Court
For the Northern District of California

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an RVR against Miramontes.

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confidential file CDCR previously had provided to Plaintiffs’

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counsel, these RVRs included “new [Confidential Disclosure Forms

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(CDC 1030s)] disclosing more of the confidential information

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relevant to the charges.”

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Id. at 4 n.4.

In addition to the

Id. at 4.

On June 10, 2016, Judge Vadas heard argument on Plaintiffs’

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motion.

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matter that, under paragraphs 49 and 53, “this is the exact issue

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that should be brought to [Judge Vadas] for determination.

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focuses on the length of time that some of the remaining . . .

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plaintiffs . . . have in the SHU and when and how they’re going to

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be removed from the SHU.”

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45.

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Judge Vadas determined as a threshold jurisdictional

It

Transcript of June 10, 2016 Hearing at

Initially, Judge Vadas explained that CDCR did not violate

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the relevant provisions of the Settlement Agreement, but “[could

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not] say any more because that portion is under seal.”

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47.

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was ruling on the basis of information that CDCR had not provided

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to Plaintiffs’ counsel, Judge Vadas explained that he in fact

Id. at 46–

After Plaintiffs’ counsel expressed concern that Judge Vadas

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relied only on the relevant information CDCR had provided to

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Plaintiffs’ counsel.

See id. at 49.

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In an unsealed portion of the transcript, Judge Vadas stated:

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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.

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Transcript of June 10, 2016 Hearing at 60.
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Separately, regarding Plaintiffs’ argument that Defendants
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United States District Court
For the Northern District of California

failed to provide to the four class members the evidence on which
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Defendants relied in reissuing RVRs, Judge Vadas ordered
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Defendants to provide new Confidential Disclosure Forms (CDC
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1030s) and reissued RVRs to Plaintiffs no later than June 17.
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Transcript of June 10, 2016 Hearing at 58–59.
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On June 24, 2016, CDCR provided the four class members
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additional Confidential Disclosure Forms, which referred to
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evidence CDCR had discovered earlier that month.

Plaintiffs’

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Motion at 4.
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CDCR held another set of hearings for each of the four class
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members and each reissued RVR, resulting in a finding of guilt for
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each one.

See Plaintiffs’ Motion at 5.

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b. Standard of Review
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This Court reviews de novo Magistrate Judge Vadas’s decision.
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Settlement Agreement ¶ 53 (“An order issued by Magistrate Judge
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Vadas under this Paragraph is subject to review under 28 U.S.C.
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§ 636(b)(1)(B).”).

“A judge of the court may accept, reject, or

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modify, in whole or in part, the findings or recommendations made
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by the magistrate judge.

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evidence or recommit the matter to the magistrate judge with

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instructions.”

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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

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preponderance of the evidence that Defendants have not

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substantially complied with the terms of the Agreement.”

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Settlement Agreement ¶ 53.

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compliance” means more than “taking significant steps toward

As Plaintiffs argue, “substantial

United States District Court
For the Northern District of California

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compliance . . . .”

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Cir. 2016).

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substantially complied with an obligation only where any deviation

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is ‘unintentional and so minor or trivial as not substantially to

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defeat the object which the parties intend to accomplish.’”

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(quoting Wells Benz, Inc. v. United States, 333 F.2d 89, 92 (9th

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Cir. 1964) (citation and some quotation marks omitted)).

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standard doesn’t require perfection. . . .

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permitted so long as they don’t defeat the object of the decree.”

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Id. (citation omitted).

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Defendants have complied with each term of the Agreement.

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at 1081 (“Like terms in a contract, distinct provisions of consent

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decrees are independent obligations, each of which must be

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satisfied before there can be a finding of substantial

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compliance.”).

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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
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disciplinary findings: petitions for writs of habeas corpus or

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civil rights suits filed under 42 U.S.C. § 1983.

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Opposition at 7–8.

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Settlement Agreement does not support Plaintiffs’ position and

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that Plaintiffs do not address paragraph 51—“The parties shall

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agree on a mechanism by which CDCR shall promptly respond to

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concerns raised by Plaintiffs’ counsel regarding individual class

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members.”

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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

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demonstrate that Defendants are not in substantial compliance with

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the terms of the Settlement Agreement, including paragraph 25’s

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limitations on when and how Defendants may place an inmate in the

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SHU on the basis of a SHU-eligible rule violation determination.

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See Settlement Agreement ¶ 25.

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is appropriate under paragraphs 49 and 53.

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10, 2016 Hearing at 45.

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challenge disciplinary findings does not preclude this review.

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Nor does the parties’ failure to agree to a mechanism through

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which Defendants could respond to class members’ concerns pursuant

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to paragraph 51 preclude review of Plaintiffs’ motion.

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Court considers Plaintiffs’ motion.

Judge Vadas determined that review
See Transcript of June

The existence of alternative processes to

Thus, the

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ii. Mootness, Ripeness and Evidence before Judge Vadas

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Plaintiffs argue that procedural due process was denied when

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CDCR denied the four class members relevant, favorable and

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potentially exculpatory evidence without providing sufficient

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reason for doing so.

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88 (9th Cir. 1987); Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir.

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2003); Cal. Code Regs. tit. 15, § 3321(b)(3).

See Zimmerlee v. Keeney, 831 F.2d 183, 186–

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In turn, Plaintiffs

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seek a declaration that both sets of RVRs “violate CDCR’s

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regulations on the use of confidential information, the Settlement

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Agreement and constitutional due process protections.”

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Plaintiffs’ Motion at 5–6.

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relating to the initial RVRs are moot now that CDCR has reissued

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and reheard each RVR.

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voluntarily reissued the RVRs, but have not cured the procedural

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due process issues.

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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

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then Plaintiffs’ claims would not be moot.

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consider whether there remain uncorrected procedural due process

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violations.

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Thus, the Court must

To the extent that Plaintiffs allege violations of Settlement

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Agreement paragraph 34 arising from CDCR’s use of confidential

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information in reissuing and rehearing the RVRs, Defendants argue

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that Plaintiffs failed to present this issue to Judge Vadas and,

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thus, failed to comply with the Settlement Agreement’s dispute

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resolution procedures.

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Plaintiffs respond that the Court must review the new RVRs to

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determine whether Defendants have cured procedural due process

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violations and so, as a practical matter, must review the new RVRs

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that Judge Vadas has not reviewed to rule on this motion.

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Plaintiffs’ Reply at 5.

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present the new RVRs to Judge Vadas before the June 10, 2016

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hearing only because Defendants delayed reissuing those RVRs until

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May 31, 2016, and did not produce them to Plaintiffs’ counsel

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until after the June 10 hearing.

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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

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sufficiency of the evidence, but not review his ruling on

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procedural due process violations, without providing meaningful

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reason to distinguish between the two.

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Plaintiffs then note that Defendants make no argument against the

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merits of Plaintiffs’ position on procedural issues.

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Reply at 6–7.

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Plaintiffs’ Reply at 6.

Plaintiffs’

Regarding the evidentiary basis for each rule violation,
Plaintiffs acknowledge that CDCR relied on information from a new

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confidential informant when it reissued and reheard the RVRs, but

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United States District Court
For the Northern District of California

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argue that there are contradictions in the record arising from the

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new information and reliability concerns regarding that

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information.

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class members from solitary confinement or, in the alternative, an

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evidentiary hearing regarding the new information.

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counter that Plaintiffs, in effect, ask this Court to reweigh the

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evidence on which CDCR relied in reaching its rule violation

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determinations.

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Plaintiffs seek a ruling for the release of the four

Defendants

Finally, Plaintiffs argue that CDCR has violated state

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regulations regarding time bars for issuing RVRs and that “the

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timing of the old and new RVRs suggests that CDCR is misusing the

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disciplinary process to maintain the alleged co-conspirators in

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SHU without justification.”

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Code Regs. tit. 15, § 3320(a).

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Plaintiffs’ Motion at 19.

See Cal.

“[A] district court has discretion, but is not required, to

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consider evidence presented for the first time in a party’s

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objection to a magistrate judge’s recommendation.”

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v. Howell, 231 F.3d 615, 621 (9th Cir. 2000).

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United States

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The Court DENIES Plaintiffs’ request for an evidentiary

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hearing and RECOMMITS this motion to Judge Vadas to review the new

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evidence and the parties’ arguments.

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the Settlement Agreement and Judge Vadas’s experience and

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expertise cut in favor of referring the matter to Judge Vadas to

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decide the issues in the first instance.

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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

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evidentiary hearing before this Court and RECOMMITS Plaintiffs’

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motion to Judge Vadas to consider the new evidence and the

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parties’ arguments (Docket No. 590).

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IT IS SO ORDERED.
Dated: September 6, 2016
CLAUDIA WILKEN
United States District Judge

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