Ashker et al v. Schwarzenegger et al

Filing 634

ORDER ON PLAINTIFFS MOTION FOR DE NOVO REVIEW OF MAGISTRATE JUDGES RULING ON RECRUITMENT OFFENSE 588 by Hon. Claudia Wilken.(dtmS, COURT STAFF) (Filed on 9/14/2016) Modified on 9/14/2016 (cpS, COURT STAFF).

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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 MAGISTRATE
JUDGE’S RULING ON
RECRUITMENT
OFFENSE

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

(DOCKET NO. 588)

Plaintiffs Todd Ashker et al. move for a de novo

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determination of a matter decided by Magistrate Judge Vadas.

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their Settlement Agreement, the parties agreed that matters

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decided by Judge Vadas would be reviewed by this Court under 28

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U.S.C. § 636(b)(1)(B) (Docket No. 588).

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interpretation of a “recruitment offense.”

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Governor of the State of California et al. filed an opposition,

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and each party filed supplemental briefing after an August 17,

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2016 status conference before Judge Vadas.

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Plaintiffs relief and AFFIRMS Judge Vadas’s ruling.

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In

At issue here is the
Defendants the

The Court DENIES

BACKGROUND

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Pursuant to the Settlement Agreement, the California

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Department of Corrections and Rehabilitation (CDCR) “shall not

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place inmates into a SHU, Administrative Segregation, or Step Down

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Program solely on the basis of their validation status.”

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Settlement Agreement ¶ 13.

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Agreement is a “SHU Term Assessment Chart” that lists types of

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misconduct for which a prisoner could be placed in a SHU.

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Attachment B to the Settlement

Offense

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(9) on that chart is “STG Disruptive Behavior.”

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and (B) are defined as follows:

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Offense (9)(A)

(9) STG Disruptive Behavior:
(A) Acting in a leadership role by directing or
controlling STG behavior that is a behavior listed in
this SHU Assessment Chart.
(B) Recruiting inmates to become an STG affiliate, or to
take part in STG activities that is a behavior listed in
this SHU Assessment Chart.
Settlement Agreement, Attachment B, SHU Term Assessment Chart.
On December 21, 2015, in a letter brief to Judge Vadas,
Plaintiffs claimed ambiguity in the text of Offense (9)(B).

See

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United States District Court
For the Northern District of California

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Docket No. 576-2, Ex. B, 12/21/2015 Letter Brief at 10–14.

A week

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later, Judge Vadas held one of the regular status conferences

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required by paragraph 49 of the Settlement Agreement.

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were Plaintiffs’ counsel, counsel from CDCR’s Office of Legal

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Affairs, counsel from the California Attorney General’s office and

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Sandra Alfaro, CDCR’s Associate Director of High Security Mission

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for the Division of Adult Institutions.

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E. Bremer in Support of Motion regarding Interpretation of

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Recruitment Offense ¶ 2.

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Present

See Declaration of Carmen

The minutes from that conference state:

Interpretation of SHU-eligible offense 9(B): The
parties agreed that CDCR will formulate by no later than
March 28, 2016 a policy concerning the recruitment SHUeligible offense under 9(B) that incorporates a coercive
element.

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Docket No. 513-2, Minutes of December 28, 2015 status conference

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¶ I.d.

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On March 28, 2016, Defendants’ counsel emailed Plaintiffs’

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counsel to indicate that Defendants “are unable to revise section

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9b of Attachment B to the SHU Term Assessment Chart to include a

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‘coercive’ component.”

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for enforcement of the December 28 agreement, which Judge Vadas

Bremer Dec., Ex. C.

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Plaintiffs then moved

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denied at the June 10 hearing that is the subject of this motion.

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See Transcript of June 10, 2016 Hearing at 36.

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The parties dispute whether the December agreement modified

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the Settlement Agreement.

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modification).

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have jurisdiction under the Settlement Agreement to rule on

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Plaintiff's motion.

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defense counsel” as to whether the Court could rule on Plaintiffs’

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motion.

See Settlement Agreement ¶ 59 (defining

Defendants first argued that Judge Vadas did not

Id. at 34.

Judge Vadas “absolutely disagree[d] with

He explained, “Under [paragraphs 49 and 53],

United States District Court
For the Northern District of California

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I have not only the right but the obligation to hear these matters

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and to rule on” the impact of the December 2015 agreement.

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34.

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circumstances, noting, “Clearly, the parties agreed to negotiate

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this issue on December 28, 2015.

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indicates that there was an oral agreement to do so.”

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of June 10, 2016 Hearing at 33–34.

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Id. at

Judge Vadas noted that he was “troubled” by the

And the clear language of B
Transcript

Nonetheless, Judge Vadas decided that the December 2015

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agreement did not constitute a written modification as the

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Settlement Agreement requires for modifications to be binding.

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Id. at 35–36; see also id. at 36 (“And so what I consider to be

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somewhat of a technicality, given the nature of how we’ve been

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proceeding, I must deny your motion.”).

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After Judge Vadas denied Plaintiffs’ motion to enforce the

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December agreement, Plaintiffs suggested that Judge Vadas issue an

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order “indicating . . . that 9B is to be interpreted consistent

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with our understanding of it . . . .”

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responded by stating in part that “no court . . . should make

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Id. at 37.

Judge Vadas

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advisory opinions.

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Id.

I’ll rule on the motions that are before me.”

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LEGAL STANDARD

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The parties agreed that this Court would review de novo

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Magistrate Judge Vadas’s decisions.

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(“An order issued by Magistrate Judge Vadas under this Paragraph

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is subject to review under 28 U.S.C. § 636(b)(1)(B)").

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of the court may accept, reject, or modify, in whole or in part,

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the findings or recommendations made by the magistrate judge.

Settlement Agreement ¶ 53

“A judge

The

United States District Court
For the Northern District of California

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judge may also receive further evidence or recommit the matter to

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the magistrate judge with instructions.”

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28 U.S.C. § 636(b)(1).

DISCUSSION

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Magistrate Judge Vadas and this Court have jurisdiction to

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determine whether the December agreement qualifies as a

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modification under the Settlement Agreement.

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with Judge Vadas that it is not.

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I.

This Court agrees

Modification of the Settlement Agreement
Plaintiffs argue that the December 2015 agreement is

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enforceable as a written modification of the Settlement Agreement.

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See Plaintiffs’ Motion at 14.

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the Settlement Agreement "must be in writing and signed by a CDCR

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representative and attorneys for Plaintiffs and Defendants to be

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effective or enforceable."

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acknowledge that no CDCR representative signed the agreement, but

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first argue that it was written and that Defendants’ counsel

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agreed to it via email, sufficing for a writing and signature.

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Plaintiffs also assert that no CDCR representative needed to sign

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the writing because “the parties’ course of conduct constitutes

Any modification to the terms of

Settlement Agreement ¶ 59.

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Plaintiffs

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waiver of the requirement that both CDCR’s attorney and its

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representative sign any modification of the agreement.”

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Plaintiffs do not point to actions or evidence beyond the December

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minutes and emails themselves to support this waiver argument.

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Because the writing was signed by Defendants’ counsel, but not a

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non-attorney representative of CDCR, it is not in compliance with

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the Settlement Agreement.

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not enforceable.

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II.

Id.

Thus, the December 2015 agreement is

Substantial Compliance

United States District Court
For the Northern District of California

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Plaintiffs next argue that the Court should adopt their

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interpretation of (9)(B), to avoid substantial noncompliance with

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the Settlement Agreement.

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Paragraph 53 of the Settlement Agreement states:

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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, . . . they may seek
enforcement by order of this Court

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Settlement Agreement ¶ 53.

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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. . . . 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.

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Under this provision:

Id.
Substantial compliance means more than “taking significant
steps toward compliance . . . .”

Rouser v. White, 825 F.3d 1076,
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1082 (9th Cir. 2016).

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the Agreement.

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distinct provisions of consent decrees are independent

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obligations, each of which must be satisfied before there can be a

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finding of substantial compliance.”); Plaintiffs’ Reply at 2–3.

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Defendants must comply with each term of

See id. at 1081 (“Like terms in a contract,

Plaintiffs appear to argue that Defendants’ failure to

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interpret Offense (9)(B) to require recruitment accompanied by

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another offense constitutes a failure to comply with a term of the

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Settlement Agreement.

Plaintiffs contend that the phrase “that is

United States District Court
For the Northern District of California

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a behavior listed in this SHU Assessment Chart” must correspond

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“not only ‘to take part in STG activities,’ but also ‘[r]ecruiting

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inmates to become an STG affiliate,’ . . .”

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15.

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satisfy Offense (9)(B).

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charge to a prisoner on the basis of “gang recruitment” without an

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allegation of “other SHU-eligible misconduct” or coercion does not

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render Defendants noncompliant with the Settlement Agreement.

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Thus, Plaintiffs do not make a showing of substantial

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noncompliance that would warrant an order under Paragraph 53.

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Plaintiffs’ Motion at

However, Offense (9)(B) is clear; recruitment alone may
That Defendants issued a rule violation

No term of the Settlement Agreement authorizes the Court to

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interpret the Agreement outside the context of a showing of

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substantial noncompliance.

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to do so would be an advisory opinion.

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Settlement Agreement does not warrant such an order.

The Court agrees with Judge Vadas that

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Absent noncompliance, the

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CONCLUSION

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For the reasons above, the Court reviews Magistrate Judge

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Vadas's order de novo, DENIES Plaintiffs’ request to reverse it

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(Docket No. 588) and AFFIRMS Magistrate Judge Vadas’s order.

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IT IS SO ORDERED.

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Dated: September 14, 2016
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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