Ashker et al v. Schwarzenegger et al

Filing 978

ORDER ON PLAINTIFFS' MOTION FOR DE NOVO REVIEW OF MAGISTRATE JUDGES DECISION ON RETENTION OF CLASS MEMBERS IN THE SHU by Judge Claudia Wilken.(dtmS, COURT STAFF) (Filed on 2/28/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TODD ASHKER, et al.,
Plaintiffs,

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ORDER ON PLAINTIFFS' MOTION
FOR DE NOVO REVIEW OF
MAGISTRATE JUDGE’S DECISION
ON RETENTION OF CLASS MEMBERS
IN THE SHU

v.

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No. 09-cv-05796-CW

GOVERNOR OF THE STATE OF
CALIFORNIA, et al.,
Defendants.

(Dkt No. 795)

United States District Court
Northern District of California

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Before the Court is Plaintiffs’ motion to review and reverse
the magistrate judge’s decision on a dispositive matter referred
to him regarding the California Department of Corrections and
Rehabilitation (CDCR) retention of class members in the Security
Housing Unit (SHU).

Defendants filed an opposition to the motion

and Plaintiffs filed a reply.

Having considered the papers, the

Court reviews the magistrate judge’s decision de novo and affirms
it.

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FACTUAL BACKGROUND
In December 2016, the CDCR found Inmates A and B guilty of
charges of conspiracy to murder Inmate C.

The CDCR intends to

hold Inmates A and B in the SHU for their offense until 2020.
Declaration of Carmen E. Bremer (Bremer Decl.), Ex. A.

The

CDCR’s finding was based on four prisoner notes and a letter from
an alleged co-conspirator, Inmate D.

See id.

The CDCR provided

Inmates A and B with Confidential Information Disclosure Forms
(1030 forms), which are used to convey information that the CDCR
deems to be confidential.

Bremer Decl., Ex. B.

The 1030 forms

contain the text of the four prisoner notes and the CDCR’s

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interpretation of those notes.

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conspirators and co-conspirators were replaced with asterisks for

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safety reasons.

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a letter from Inmate D to Inmate A about a plan to murder Inmate

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C.

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forms stated that Inmate D’s letter constituted additional

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information concerning Inmate A and B’s participation in the plot

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United States District Court
Northern District of California

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to murder Inmate C and that the information confirmed that the

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See id.

See id.

The names of the alleged

The 1030 forms additionally referred to

Bremer Decl., Ex. C; see also Bremer Decl., Ex. E.

plan to murder Inmate C existed.

The 1030

See Bremer Decl., Ex. C.

Plaintiffs brought a motion before Magistrate Judge Vadas to

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enjoin the CDCR from retaining class members Inmates A and B in

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the SHU on two bases: that the CDCR did not make the requisite

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evidentiary showing to place Inmates A and B in the SHU and that

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the CDCR violated paragraph thirty-four of the Settlement

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Agreement by issuing inadequate 1030 forms.

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Judge Vadas denied the motion, holding that the Settlement

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Agreement terms “do not include granting the court broad, general

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authority to review disciplinary decisions by the CDCR using any

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standard . . .”

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instant motion to challenge Judge Vadas’ order.

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Agreement ¶ 53.

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Docket No. 786.

Docket No. 706.

Plaintiffs then brought the
See Settlement

LEGAL STANDARD
This Court reviews de novo Judge Vadas’ decision.

Docket

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No. 486-3, Settlement Agreement ¶ 53 (“An order issued by

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Magistrate Judge Vadas under this Paragraph is subject to review

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under 28 U.S.C. § 636(b)(1)(B).”).

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provides, “A judge of the court may accept, reject, or modify, in
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The referenced section

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whole or in part, the findings or recommendations made by the

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magistrate judge.”

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28 U.S.C. § 636(b)(1).
DISCUSSION

Plaintiffs argue that the CDCR has not substantially
complied with paragraph thirty-four of the Settlement Agreement.

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In California, “a party is deemed to have substantially complied

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with an obligation only where any deviation is unintentional and

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so minor or trivial as not substantially to defeat the object

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Northern District of California

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which the parties intend to accomplish.”

Rouser v. White, 825

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F.3d 1076, 1082 (9th Cir. 2016) (internal quotation marks

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omitted).

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Paragraph thirty-four of the Settlement Agreement requires

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that the CDCR “adhere to the standards for the consideration of

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and reliance on confidential information set forth in Title 15 of

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the California Code of Regulations, section 3321.”

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which defines the types of confidential information and their

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use, provides in relevant part:

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Section 3321,

(a) The following types of information shall be
classified as confidential:
(1) Information which, if known to the inmate,
would endanger the safety of any person.
(2) Information which would jeopardize the
security of the institution.
(3) Specific medical or psychological information
which, if known to the inmate, would be medically
or psychologically detrimental to the inmate.
(4) Information provided and classified
confidential by another governmental agency.
(5) A Security Threat Group debrief report,
reviewed and approved by the debriefing subject,
for placement in the confidential section of the
central file.
(b) Uses of specific confidential material.
[ . . . ]
(3) The documentation given to the inmate shall
include:
(A) The fact that the information came from a
confidential source.
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(B) As much of the information as can be
disclosed without identifying its source
including an evaluation of the source's
reliability; a brief statement of the reason
for the conclusion reached; and, a statement
of reason why the information or source is
not disclosed.

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Plaintiffs argue that the CDCR failed to comply with section

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3321 in two ways.

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violated subsection 3321(a) by redacting the names of the

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conspirators and co-conspirators.

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United States District Court
Northern District of California

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First, Plaintiffs contend that the CDCR

that the CDCR should have substituted the names of the

Specifically, Plaintiffs argue

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conspirators and co-conspirators with identifiers that would

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allow Plaintiffs to distinguish them from one another.

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Plaintiffs cannot point to anything in section 3321 or any other

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regulation that requires the CDCR to do so.

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Plaintiffs are inapposite because they do not involve section

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3321.

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litigation pursuant to the Federal Rules of Civil Procedure.

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Hayes v. Corr. Corp. of Am., 2011 U.S. Dist. LEXIS 101312, *8,

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2011 WL 3962153 (D. Idaho 2011); Osborn v. Bartos, 2010 U.S.

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Dist. LEXIS 114119, *43 (D. Ariz. 2010).

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the CDCR’s disclosure of confidential information in disciplinary

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proceedings pursuant to section 3321.

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But

The cases cited by

Both cases concern the redaction of documents provided in
See

This is different from

Second, Plaintiffs contend that the CDCR violated section

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3321(b)(3)(B) with respect to the 1030 form for Inmate D’s

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letter, which Plaintiffs argue did not include “as much of the

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[confidential] information as can be disclosed without

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identifying its source.”

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brief summary of Inmate D’s letter in the 1030 forms is notable

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considering that the CDCR provided the redacted text of the other

The CDCR’s choice to provide only a

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four prisoner notes.

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stated the facts relevant to the charged act of the plot to

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murder Inmate C.

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contained additional information concerning Inmate A and B’s

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participation in the plot to murder Inmate C, which confirmed

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that the plan to murder Inmate C existed.

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C.

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evidence, as Plaintiffs suggest.

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United States District Court
Northern District of California

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substantial noncompliance with paragraph thirty-four of the

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The CDCR’s summary, however, accurately

The 1030 form stated that Inmate D’s letter

This does not appear to be an attempt to obfuscate the
Plaintiffs have not shown

Settlement Agreement.

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See Bremer Decl., Ex.

CONCLUSION
The Court reviews de novo the magistrate judge’s decision on

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a dispositive matter referred to him regarding the CDCR’s

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retention of class members in the SHU and affirms the magistrate

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judge’s decision.

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IT IS SO ORDERED.
Dated: February 28, 2018
CLAUDIA WILKEN
United States District Judge

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