Johnson v. Ryan
| Decision Date | 15 December 2022 |
| Docket Number | 20-15293 |
| Parties | Richard JOHNSON, Plaintiff-Appellant, v. Charles L. RYAN, named as Charles Ryan, Director of Arizona Department of Corrections; Stacey Crabtree, Administrator of Offender Services Bureau; P. Days, Deputy Warden of Browning Unit; Montono, aka Unknown Montano, First name unknown; Deputy Warden of Central Unit on or about 4-12-18 till 4-23-18, alias added pursuant to Doc #53; Belt, First name unknown; SSU Sergeant B, Special Security Unit Sergeant at Central Unit, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Brian Wolfman (argued) and Daniel Wassim (argued), Hannah M. Mullen, Madeline H. Meth, Samuel Myers, Sanders Keyes Gilmer, and Rebecca Van Voorhees, Georgetown University Law Center Appellate Courts Immersion Clinic, Washington, D.C., for Plaintiff-Appellant
Patrick J. Boyle (argued), Assistant Attorney General; Mark Brnovich, Attorney General of Arizona; Office of the Arizona Attorney General, Phoenix, Arizona; for Defendants-Appellees.
Before: Jay S. Bybee and Ryan D. Nelson, Circuit Judges, and Jed S. Rakoff,* District Judge.
Opinion by Judge Bybee ;
Arizona Department of Corrections (ADC) inmate Richard Johnson is a validated member of a Security Threat Group (STG) and, pursuant to ADC's policy, has been assigned to maximum custody confinement. Johnson challenges two aspects of ADC's STG determination. First, he argues that ADC's annual reviews of his maximum security confinement are insufficient to satisfy the Due Process Clause of the Fourteenth Amendment. Second, Johnson claims that his removal from ADC's Step-Down Program (SDP)—a program by which STG inmates may reintegrate into close custody confinement—violated his rights under the First and Fourteenth Amendments. The district court screened his complaint, dismissing his claim regarding ADC's annual reviews for failure to state a claim. The district court later granted summary judgment to Defendants on Johnson's claims regarding his removal from the SDP. Johnson appealed, challenging both orders. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse and remand in part.
In 2005, the Supreme Court observed that "[t]he use of Supermax prisons has increased over the last 20 years, in part as a response to the rise in prison gangs and prison violence." Wilkinson v. Austin , 545 U.S. 209, 213, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (). These facilities, sometimes referred to as "jails within prisons," Riveland, supra , at 1, are "more restrictive than any other form of incarceration," Wilkinson , 545 U.S. at 214, 125 S.Ct. 2384.
In 1991, ADC addressed its own prison gang challenges by adopting a Security Threat Group policy, referred to as Department Order (DO) 806. The policy's purpose is to "minimize the threat that inmate gang or gang like activity poses to the safe, secure and efficient operation of institutions." The policy defines an STG as "[a]ny organization, club, association or group of individuals, either formal or informal (including traditional prison gangs), ... whose members engage in activities that include ... committing or attempting to commit unlawful acts or acts that violate the Department's written instructions, which detract from the safe and orderly operation of prisons." Ariz. Dep't of Corr., Dep't Order Manual, Dep't Order 806, at 25 (2017) [hereinafter DO 806]. The policy contemplates "[m]inimizing gang or gang like activity" through two programs: (1) "the debriefing and segregation of inmates who disavow gang membership," and (2) "a step-down process for gang members who participate in programming, reject gang activity and affiliation, and remain disciplinary free." DO 806 at 1.
ADC's process for confirming an inmate's membership in an STG is called "validation," and entails the following process. When an inmate is first suspected of being an STG member, the inmate is monitored for any STG-related activity. ADC collects any documentation and physical evidence in support of the inmate's STG membership in an STG Suspect File held by the Special Security Unit (SSU). DO 806.03. Once an inmate accrues at least ten points in two or more of ADC's validation criteria, a "validation packet" is prepared and sent to the STG Validation Hearing Committee. In the hearing, SSU presents the validation packet, the inmate presents his defense, and the STG Validation Hearing Committee determines whether the documentation supports validation as an active STG member. DO 806.04.1.7. If the committee finds that the documents support validation, the inmate has three options: He may renounce his STG membership, he may accept the validation but refuse to renounce his STG membership, or he may appeal his validation to the STG Appeals Committee. DO 806.04.1.8.
Validated STG members who refuse to renounce are assigned to maximum custody. DO 806.07. Male validated STG members, like Johnson, are housed in the ASPC-Eyeman Browning Unit (Browning Unit) for the duration of their incarceration. Validated STG inmates are ineligible for "restoration of forfeited time credits [and] ... rescission of Parole Class III time." Id. 806.07.1.1. Furthermore, Johnson alleges that ADC conducts an annual review of maximum security inmates' status, but for STG inmates, these annual reviews consider only whether they are validated STG members and whether they have renounced and debriefed.
Conditions in maximum custody facilities such as the Browning Unit are very restrictive. Johnson alleges that he and other STG inmates in maximum custody are confined to their cells twenty-four hours per day, strip searched, and handcuffed behind their backs every time they leave their cells. In the Browning Unit, STG inmates are entitled to between $60 to $160 in weekly allowance at the store, one to three fifteen-minute phone calls per week, one to three two-hour non-contact visit blocks per week, and three three-hour recreation blocks per week in a chute enclosure with the possibility that one block may be in a ten-by-ten foot enclosure. They also have access to the library, television, and mandatory rehabilitation programming, with the possibility of further access to hobby supplies, the job of pod porter, and eligibility for unrestrained escorts out of their cells. ADC has promulgated an Inmate Maximum Custody Management and Incentive System. Ariz. Dep't of Corr., Dep't Order Manual, Dep't Order 812 (2019) [hereinafter DO 812]. The program uses a "step incentive system" that provides inmates "the opportunity to participate in jobs, programs, and other out of cell activities" by which "inmates may progress from controlled based housing to open privilege based housing." DO 812.1.
STG-validated inmates have two distinct paths to become eligible for custody reductions and housing status change. They must either renounce their STG membership and debrief or they must complete the SDP. DO 806.07.1.2.
Renunciation is "[t]he process, in which a validated STG member agrees to renounce STG affiliation, successfully completes a debriefing, and is considered a former member." DO 806 at 25. Debriefing is a process by which the inmate provides ADC with information to convince ADC that the inmate has withdrawn from the STG. Debriefing permits ADC to get additional information about the STG so that ADC may manage the threat and to determine whether the inmate will need to be protected from other STG members and suspects. DO 806.06.1.1. A validated STG member is "[p]ermitted to renounce and debrief at any time." DO 806.07.1.1.9. If the inmate has debriefed to the satisfaction of the STG Validation Hearing Committee, the inmate is placed in protective custody pending review of eligibility for lower custody housing or a double cell environment. DO 806.07.1.5.1. Inmates who successfully debrief may also request out-of-state placement. DO 806.07.1.5.2.
The SDP "permits active inmates who have been validated as STG members, to remove themselves from STG activity and demonstrate to Department staff that they are no longer involved with STG activity." ADC considers it to be an "alternative, indirect way of demonstrating a disassociation with gang activity [that] does not require renunciation and debriefing." In order to participate in the SDP, a validated STG member must notify ADC in writing of his desire to participate in the program and must do so after a twenty-four-month period in which the inmate did not participate in STG activity or receive documented violations. DO 806.1.2.
The SDP is split into five "Phases." Phases I through III take place in the Browning Unit and each lasts 180 days. DO 806.08. At Phase I, inmates complete "general evidence based programs" such as diversity training, high school equivalence preparation, cognitive thinking, and other rehabilitative programming. At Phase II, inmates are allowed outside of their cells individually and unrestrained in order to complete job assignments, and may walk to and from the shower and recreation unrestrained. DO 806.08.1.5.2. They may also participate in town hall meetings in non-contact cells, restorative justice programming, and other rehabilitative programming. DO 806.08.1.5.2.1. At Phase III, inmates are allowed two-person recreation periods, job assignments, and one meal each day with other SDP inmates in which they are unrestrained. DO 806.08.1.5.3. They also continue programming, such as substance abuse activities, conflict resolution, domestic violence, and other treatment programs. DO 806.08.1.5.3. Phase IV involves...
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