Griffin v. Gomez, s. 09–16744

• Decision Date: 28 January 2014
• Docket Number: 11–15373.,Nos. 09–16744,s. 09–16744
• Citation: 741 F.3d 10
• Parties: Robert Lee GRIFFIN, Plaintiff–Appellee, v. James GOMEZ, Director of California Department of Corrections; Charles D. Marshall; C.A. Terhune, Director; Robert L. Ayers, Jr., Warden, Defendants–Appellants. Robert Lee Griffin, Petitioner–Appellee, v. James Gomez, Director of California Department of Corrections; C.A. TERHUNE, Director; Charles D. Marshall; Robert Ayers, Jr., Warden, Respondents–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

741 F.3d 10

Robert Lee GRIFFIN, Plaintiff–Appellee,

v.James GOMEZ, Director of California Department of Corrections; Charles D. Marshall; C.A. Terhune, Director; Robert L. Ayers, Jr., Warden, Defendants–Appellants.

Robert Lee Griffin, Petitioner–Appellee,

v.James Gomez, Director of California Department of Corrections; C.A. TERHUNE, Director; Charles D. Marshall; Robert Ayers, Jr., Warden, Respondents–Appellants.

Nos. 09–16744, 11–15373.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 9, 2012.

Filed Jan. 28, 2014.

Pamela B. Hooley, Deputy Attorney General, Sacramento, CA, for Respondents–Appellants.

Pamela J. Griffin, Omaha, NE, for Petitioner–Appellee.

Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. 5:98–cv–21038–JW.

Before: ANDREW J. KLEINFELD and MARSHA S. BERZON, Circuit Judges, and WILLIAM E. SMITH, District Judge.^*

OPINION

KLEINFELD, Senior Circuit Judge:

We address enforcement of an order regarding conditions of confinement.

FACTS

Robert Lee Griffin has been imprisoned since 1970. He was originally convicted of robbery and burglary. He committed additional violent crimes while in prison, including murder of another inmate, earning a life sentence. During his confinement, he became a leader in a national prison gang, the Aryan Brotherhood. Because of his gang activities, he has been confined for many years to a “security housing unit” (“SHU”), to protect other prisoners from him and his gang underlings. This appeal addresses the security housing unit aspect of his confinement, not the confinement itself.

California has a chronic problem with murderous prison gangs, typically organized by ethnicity. The gangs engage in extortion, drug trafficking, assault, and murder within the prisons. And, since many prisoners are eventually released, and many have family and friends outside the prisons, the gangs' reach and ability to order assaults and murders extends outside the prisons.

According to the declaration in this case of the Special Agent in Charge of the California Office of Correctional Safety, Griffin's gang, the Aryan Brotherhood, or “AB,” originated in San Quentin prison in the 1960s, and has spread throughout the California state prison system and beyond, to other states' prison systems and to the federal prison system. Once a member of the Aryan Brotherhood, a person is always a member, according to the Special Agent's declaration:

The AB is a white supremacist group that operates under the principle of ‘blood in/blood out,’ meaning that in order to become an AB member, the individual must murder someone for the AB, and the only way to get out of the AB is by dying naturally or being killed. Thus membership is for life, as is typical with virtually all prison gangs.

California created the “Office of Correctional Safety” within its Department of Corrections and Rehabilitation to address its prison gang problem. Officers within this unit “validate” an inmate's gang membership by accumulating evidence, and by giving the inmate notice and an opportunity to be heard on whether he is indeed a gang member. The Office considers gang members to be “a severe threat to the safety of others and to the security of the institution,” so once “validated,” an inmate is placed in a SHU indefinitely.

A classification committee reviews a gang member's SHU status every six months to consider whether or not to release him into the general population. Inmates can also volunteer for “debriefing” to establish that they are “dropouts” from their gangs and obtain release into the general prison population. When an inmate wants to debrief, prison officials interview him, and then house him with other inmates who are debriefing and observe him for a period of time to determine whether he has really left his gang. Debriefing does not require an inmate to disclose crimes he has committed. But he must name other gang members and discuss past activities of his gang. Over a thousand inmates have been debriefed and released from SHUs in recent decades. As an alternative to debriefing, the prison officials also run an “inactive review” process, where they review the files of inmates who have had no documented gang activity for at least six years, and consider whether or not to release them from the SHU. Over five hundred inmates have been declared inactive and released from the SHU via this process.

Griffin has not been among those gang members released into the general prison population. He was validated as an Aryan Brotherhood member in 1979, and put into the SHU at the California Correctional Institution at Tehachapi in 1987. He was transferred to the SHU at Pelican Bay State Prison in 1989, and remained there until 2002.¹ Prison officials reconfirmed his Aryan Brotherhood membership in 1995 and 1996. In 1999 and 2000, prison officials received several confidential memoranda suggesting that Griffin was still authorizing assaults on behalf of the Aryan Brotherhood. In 2000, they intercepted a “kite”—a letter smuggled past prison officials to another prisoner ²—that said that Griffin had authorized an assault on another prisoner on behalf of the Aryan Brotherhood.

The notion of “authorizing” an assault relates to the somewhat bureaucratic organization of the Aryan Brotherhood. The California faction of the Aryan Brotherhood is led by a Commission, which orders murders and assaults to keep subordinate Aryan Brotherhood members under control and advance the gang's drug smuggling and other interests. Griffin was a founding member of the Commission. Various intercepted documents suggested to prison officials that Griffin was still a member of the Commission and was still giving instructions in 1999, but was nevertheless “keeping a low profile because of his pending [habeas] case.”

Griffin seeks release from the SHU in which he is currently confined. He claims that he is no longer active in the Aryan Brotherhood, but prison officials have not released him through the inactive review process, and he has refused to “debrief.” He has argued that debriefing would put him and his family at risk of retaliation for revealing gang secrets. He says that, having ceased all gang activity, he should not have to take that risk in order to be released from the SHU. The prison authorities do not believe that he is inactive or, as they put it, has “retired” from the Aryan Brotherhood. They claim that “retirement” would be inconsistent with the Aryan Brotherhood's “blood in/blood out” requirement. In addition to their doubt that the Aryan Brotherhood allows retirement, prison authorities have received numerous tips from other prisoners that Griffin remains an active leader of the gang.

All this is background. Griffin's arguments in this case are legal, not factual, based on a complex tangle of past litigation. We now summarize the history of this litigation.

In 1992, while incarcerated at the Pelican Bay SHU, Griffin petitioned for a writ of habeas corpus. He sought release from the SHU into the general prison population, not release from prison, so it was not clear that habeas corpus was the appropriate means of seeking relief. The district court denied the petition. On appeal, we held that Griffin could indeed use the habeas process rather than § 1983, even though he was addressing conditions of confinement rather than the legitimacy or duration of his confinement.³ One of Griffin's arguments was that holding him in the SITU unless he debriefed was cruel and unusual punishment violative of the Eighth Amendment. We did not decide whether this was so, but instead remanded for further consideration in light of Madrid v. Gomez,⁴ a district court decision in a class action challenge of which Griffin was a part.

Madrid addressed, among other issues, Eighth Amendment claims by prisoners in the Pelican Bay SITU. The court emphasized that the Pelican Bay SHU was unique, “a place which, by design, imposes conditions far harsher than those anywhereelse in the California prison system.” ⁵ It had unique architecture imposing extreme isolation, in which the “worst of the worst” prisoners were confined.⁶ The prisoners spent 22 1/2 hours per day in windowless cells, and their social interaction was sharply limited to their cellmate (if they had one), to hearing but not seeing inmates in adjoining cells, and to closely supervised library, shower, and visitor interactions.⁷ When they were allowed outdoors, they were confined in small caged exercise pens surrounded by high walls from which they could not see other prisoners.⁸

Despite these extreme conditions, the district court in Madrid was “not persuaded that the [Pelican Bay] SITU, as currently operated, violates Eighth Amendment standards” except for mentally ill inmates and inmates at a “particularly high risk for suffering very serious or severe injury to their mental health” on account of the social isolation in the Pelican Bay SITU. ⁹ Griffin has never claimed to be in this category of inmates with mental health deficits.

On remand in 2006, the district court addressed Griffin's habeas petition in light of the Madrid class action judgment.¹⁰ The district court held that for Griffin, in his particular circumstances, confinement in the Pelican Bay SITU violated the Eighth Amendment. Debriefing, the court held, would create a risk to Griffin's personal safety. And because California did not present any evidence that Griffin was active in the Aryan Brotherhood, nor any evidence as to why it would not release him from the SHU via the inactive review process, the court concluded that inactive review was “at least for [Griffin], an illusory alternative to debriefing.” The court determined that the combination of the harsh conditions at Pelican Bay, and prison officials' apparent refusal to allow Griffin an inactive review, meant that Griffin had remained in the SITU for twenty years because of...