Ashker v. Newsom

• Docket Number: 21-15839,22-15345
• Decision Date: 24 August 2023
• Parties: TODD LEWIS ASHKER; DANNY TROXELL; GEORGE RUIZ; JEFFREY ANTHONY FRANKLIN; GEORGE FRANCO; GABRIEL RALPH REYES; RICHARD K. JOHNSON; PAUL A. REDD, Jr.; LUIS ESQUIVEL; RONNIE N. DEWBERRY, Plaintiffs-Appellees, v. GAVIN NEWSOM, Governor of the State of California; MATTHEW CATE; ANTHONY CHAUS, Chief, Office of Correctional Safety, CDCR; GREG LEWIS, Warden, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

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TODD LEWIS ASHKER; DANNY TROXELL; GEORGE RUIZ; JEFFREY ANTHONY FRANKLIN; GEORGE FRANCO; GABRIEL RALPH REYES; RICHARD K. JOHNSON; PAUL A. REDD, Jr.; LUIS ESQUIVEL; RONNIE N. DEWBERRY, Plaintiffs-Appellees,
v.
GAVIN NEWSOM, Governor of the State of California; MATTHEW CATE; ANTHONY CHAUS, Chief, Office of Correctional Safety, CDCR; GREG LEWIS, Warden, Defendants-Appellants.

Nos. 21-15839, 22-15345

United States Court of Appeals, Ninth Circuit

August 24, 2023

Argued and Submitted May 18, 2023 S.D. Carter & Keep U.S. Courthouse

Appeal from the United States District Court for the Northern District of California No. 4:09-cv-05796-CW Claudia Wilken, District Judge, Presiding

Sarah M. Brattin (argued), Deputy Attorney General; Monica N. Anderson, Senior Assistant Attorney General; Rob Bonta, California Attorney General; California Attorney General's Office, Sacramento, California; Jeffrey T. Fisher, and Neah Huynh, Supervising Deputy Attorneys General; Cassandra J. Shryock (argued), Deputy Attorney General; California Attorney General's Office, San Francisco, California; for Defendants-Appellants.

Jules Lobel (argued), Pittsburgh, Pennsylvania; Carmen E. Bremer (argued), Bremer Law Group PLLC, Seattle, Washington; Rachel A. Meeropol, American Civil Liberties Union, Criminal Law Reform Project, New York, New York; Samuel Miller, Center for Constitutional Rights, New York, New York; Charles F.A. Carbone, Law Offices of Charles Carbone, San Francisco, California; Matthew D. Strugar, Law Office of Matthew Strugar, Los Angeles, California; Anne M. Cappella, Weil Gotshal &Manges LLP, Redwood Shores, California; Anne Butterfield Weills, Siegel Yee &Brunner, Oakland, California; Caitlin Sandley, Center for Constitutional Rights, Birmingham, Alabama; Baher Azmy, Center for Constitutional Rights, New York, New York; for Plaintiffs-Appellees.

Donald Specter, Margot Mendelson, and Patrick Booth, Prison Law Office, Berkeley, California, for Amici Curiae Former Corrections Officials.

Paula Mitchell, The Project for the Innocent at Loyola Law School, Loyola Law School, Los Angeles, California; Linda Starr, The Northern California Innocence Project, Santa Clara University School of Law, Santa Clara, California; Anton Robinson and Faith Barksdale, The Innocence Project Inc., New York, New York; Alexander Simpson, The California Innocence Project, California Western School of Law, San Diego, California; for Amici Curiae The California Innocence Project, The Innocence Project, The Northern California Innocence Project, and The Project for the Innocent at Loyola Law School.

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Before: J. Clifford Wallace and Ryan D. Nelson, Circuit Judges, and James S. Gwin, ^[*] District Judge.

SUMMARY ^[**]

Prisoner Civil Rights

The panel (1) reversed the district court's order granting inmates a twelve-month extension of a 2015 settlement agreement in which the State of California agreed to stop housing inmates in solitary confinement for long-term or indefinite periods based on gang affiliation; and (2) vacated on jurisdictional grounds the district court's order granting inmates a second twelve-month extension of the settlement agreement, and dismissed the appeal from that order as moot.

Pursuant to the 2015 settlement agreement, the California Department of Corrections and Rehabilitation and state officials (collectively "CDCR") agreed to implement various reforms. The inmates' counsel would monitor compliance for twenty-four months and could seek a twelve

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month extension if the inmates demonstrated a continuing constitutional violation that was either alleged in their complaint or resulted from the settlement agreement's reforms.

The panel reversed the district court's order granting the first twelve-month extension of the settlement agreement. First, the panel held that there was no basis for extending the agreement based on the inmates' claim that the CDCR regularly mischaracterizes the confidential information used in disciplinary hearings and fails to verify the reliability of that information. The claim was not alleged in the inmates' complaint, CDCR's alleged misuse of confidential information was not caused by the agreement's reforms, and plaintiffs failed to demonstrate current and ongoing systemic Fourteenth Amendment due process violations arising from CDCR's confidential information disclosures and reliability determinations.

Next, the panel held that there was no basis for extending the agreement based on the inmates' claim that CDCR unconstitutionally validates inmates as gang affiliates and fails to tell the parole board that old gang validations are flawed or unreliable. The claim was not included in, or sufficiently related to, the complaint. Moreover, even if the prior validation process and resulting validations were deficient, an extension was not justified because CDCR had no reason to doubt the reliability of the validations and did not misrepresent or omit information to the parole board deliberately or with reckless disregard for the truth.

Finally, the panel held that there was no basis for extending the agreement based on the inmates' claim that CDCR violates due process by placing inmates with safety concerns in the Restrictive Custody General Population Unit

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("RCGP"). The inmates do not have a liberty interest in avoiding RCGP placement, which does not impose an atypical and significant hardship in relation to the ordinary incidents of prison life. Moreover, CDCR employed constitutionally sufficient procedural protections in effecting the placements.

Because the first twelve-month extension of the settlement agreement was improper, the district court's jurisdiction over the matter terminated when the agreement's initial twenty-four-month monitoring period ended. The district court therefore lacked jurisdiction to order the second twelve-month extension of the settlement agreement. The panel vacated the district court's second extension order and dismissed the appeal from that order as moot.

Concurring, Judge R. Nelson, joined by Judge Gwin, noted that this court has not definitively resolved what the proper baseline is for measuring what constitutes an atypical and significant hardship in evaluating whether inmates have a liberty interest in avoiding certain conditions of confinement. In his view, the conditions of administrative segregation or protective custody are the proper baseline comparators when determining whether a challenged prison condition is atypical and significant.

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OPINION

R. NELSON, CIRCUIT JUDGE

A settlement agreement generally ends a legal dispute. Here, it was just the beginning. In August 2015, the State of California settled a dispute with a plaintiff class of inmates over alleged constitutional violations. Eight years later, the dispute continues.

In settlement, the State agreed to stop housing inmates in solitary confinement for long-term or indefinite periods based on gang affiliation. The inmates' counsel would monitor the state's compliance for two years. The settlement agreement and monitoring period could be extended for twelve months if the inmates demonstrated continuing constitutional violations that were either alleged in their complaint or resulted from the agreement's reforms.

The inmates twice successfully extended the settlement agreement before the district court. We are tasked with determining whether the settlement agreement was properly extended based on the alleged constitutional violations. For the reasons below, we reverse in part, vacate in part, and dismiss in part the district court's extensions of the settlement agreement.

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Nearly fourteen years ago, California inmates Todd Ashker and Danny Troxell filed a pro se action challenging their conditions of confinement in the Pelican Bay solitary housing facility. They ultimately secured counsel and converted their action into a putative class action with other long-term inmates incarcerated in Security Housing Units ("SHU") and living in similar conditions. The plaintiff class

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of California inmates ("Inmates") sued the California Department of Corrections and Rehabilitation, the Governor of California, and other state correctional officials (collectively, "CDCR"). The Inmates alleged violations of the Eighth Amendment and the Fourteenth Amendment Due Process Clause based on CDCR's practice of housing inmates in SHU based solely on "gang validation"-the prison's determination that an inmate is affiliated with a prison gang.

The parties ultimately settled the action in a written settlement agreement ("Settlement Agreement"). Under the Settlement Agreement, CDCR agreed to implement various reforms within Pelican Bay and other CDCR SHU facilities. Those reforms were chiefly intended to end the practice of SHU placement based on gang validation alone, eliminate indeterminate SHU sentences, reevaluate the placement of inmates currently serving indeterminate SHU sentences based on gang validation, and implement related reforms.

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Several of the Settlement Agreement's reforms are relevant to this appeal. For instance, rather than place inmates in SHU based on gang validation status alone, an inmate can now be housed there only if found guilty of a SHU-eligible offense in a disciplinary hearing. The Settlement Agreement also states that CDCR must continue adhering to existing state regulations about the use of confidential information in disciplinary proceedings and train staff who use that information. And CDCR was required to produce documents relating to determinations about whether class members were guilty of SHU-eligible offenses, including confidential information.

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The Settlement Agreement also created the Restrictive Custody General Population Unit ("RCGP"), designed to house inmates released from SHU under the Settlement Agreement who face threats to their safety. The RCGP is designed to increase social interaction...