Koch v. Lewis

• Decision Date: 30 August 2001
• Docket Number: No. CIV90-1872-PHX-ROS-(JBM).,CIV90-1872-PHX-ROS-(JBM).
• Citation: 216 F.Supp.2d 994
• Parties: Mark A. KOCH, Plaintiff, v. Samuel LEWIS, et al., Defendants.
• Court: U.S. District Court — District of Arizona

216 F.Supp.2d 994

Mark A. KOCH, Plaintiff, v. Samuel LEWIS, et al., Defendants.

No. CIV90-1872-PHX-ROS-(JBM).

United States District Court, D. Arizona.

August 30, 2001.

COPYRIGHT MATERIAL OMITTED

Lawrence A. Hammond, Timothy Joel Eckstein, Phoenix, AZ, for plaintiff.

Alicia Marie Lawler, James Russel Morrow, Phoenix, AZ, for defendants.

Rene Lynn Williams, Phoenix, AZ, for movant.

MEMORANDUM OPINION AND ORDER

MORAN, Senior District Judge.

This is the most recent chapter in the saga of Arizona prisoner Mark Koch. His epic journey through the state and federal courts has been documented elsewhere and we will not recount it here. Suffice it so say that Koch is the subject of no fewer than 14 state and federal court opinions spanning 20 years of litigation and hundreds of pages of published and unpublished decisions.¹ In this opinion we take up the issue whether Koch's indefinite detention in near-solitary confinement based on alleged gang membership comports with the Due Process Clause of the Fourteenth Amendment. For the reasons set forth below, we hold that it does not and we therefore grant Koch's motion for injunctive relief.

BACKGROUND

Since March 1996, Koch has been detained in Special Management Unit II (SMU II) of the Arizona Department of Corrections (ADOC) facility in Florence, Arizona. He is there because he has been validated as a member of the Aryan Brotherhood (AB) prison gang. While Koch has raised a number of claims during the course of this lawsuit, by the time his case went to trial on April 17, 2001, only two issues remained: 1) whether Koch's indefinite confinement in SMU II based on his status as an AB member violates the Due Process Clause; and 2) whether the individual defendants² could be held liable for money damages as a result of any such constitutional breach.

Trial commenced on April 17, 2001. The testimonial and documentary evidence established the following. Prior to 1996, Koch was designated as a relatively lowrisk inmate and housed in a number of different medium-security facilities within the ADOC. At these facilities Koch was allowed to spend several hours of each day outside of his cell and was able to interact with other prisoners during recreation time in the prison yard and while taking meals in the dining hall. Koch also had the opportunity to take advantage of educational and employment programs. With respect to the latter, Koch worked for several years as a staffer in prison law libraries and as a legal assistant and adviser to other inmates.³

Things changed dramatically for Koch in 1996. In January of that year, prison officials notified Koch that he had been identified as a suspected member of the Aryan Brotherhood, a prison gang designated by the ADOC as a Security Threat Group (STG) (Koch Exh. 1.5). Under Department Management Order 57 (DMO 57), which was effective at the time, a prisoner validated as a member of an STG was given a level 5 institutional risk score (the highest level) and placed in segregated confinement in SMU II (Koch Exh. I.8). In February 1996, defendants conducted a validation hearing regarding Koch's alleged STG membership. At that hearing, during which Koch received little notice or details of the charges against him, defendants validated Koch as a member of the Aryan Brotherhood STG. Pursuant to DMO 57, Koch subsequently was assigned a level 5 institutional risk score and transferred to SMU II.

The ADOC held another validation hearing for Koch in 1998. Following Department Order 806 (DO 806), which had by then replaced DMO 57,⁴ the ADOC cited three categories of evidence in support of validation: 1) a photograph of Koch posing with alleged AB members; 2) incident reports noting that Koch had been observed associating with known AB members; and 3) purported membership lists identifying Koch as an AB affiliate. No evidence of any overt acts of misconduct was introduced against Koch at the 1998 hearing. At the end of the proceeding, the ADOC concluded that the evidence had confirmed Koch's status as an STG member and that he warranted continued detention in SMU II. DO 806 provides that Koch must remain in SMU II unless and until he renounces his membership in the Aryan Brotherhood and submits to a debriefing process (Df.Exh. 514). In other words, Koch must name names. Koch has refused to do so. He has now been detained in SMU II for more than five and one-half years.

Life in SMU II is grim.⁵ The ADOC maintains that SMU II is the most restrictive form of confinement in the state of Arizona and the most secure super-maximum security prison in the United States (Stewart Dep. at 6). In SMU II, Koch is housed in a windowless cell measuring approximately 10 × 8 feet. The cell contains a bed, a sink and a toilet. SMU II was designed to minimize human contact. To that effect, all meals are delivered to Koch in his cell and, with few exceptions, Koch must remain in his cell 24 hours per day. For one hour every other day Koch is handcuffed, shackled and allowed out of his cell for exercise and a shower. The shower room is located approximately 20 feet down the hall from Koch's cell. There, he is allotted eight minutes of water time to shower and shave. The "recreation area" is approximately ten feet away from Koch's cell. This area consists of a 12 × 20 foot empty room with 20 foot high walls and a mesh grate ceiling. Other than the shower and exercise time, Koch is allowed to leave his cell to make one phone call per week (the phone is located near the shower room) and, if there are visitors, for up to two hours of visitation time per week. Communication with visitors must take place through a plate glass window. Visitors to SMU II, including medical personnel, must wear bulletproof jackets and protective eye goggles (Stewart Dep. at 12-13, 17-20; Herman Dep. at 17-34).

Koch has existed under these conditions for 66 consecutive months. Koch is serving a sentence of 25 years to life. His status as an STG member and the concomitant level 5 institutional risk score effectively foreclose any possibility of parole. Therefore, unless he debriefs, Koch will remain in SMU II until he dies. The alternative of debriefing, however, presents its own problems. Debriefers are targeted for execution by gang members. In an attempt to provide security the ADOC places debriefers in protective custody in SMU I — a similarly restrictive segregated facility (Herman Dep. at 8). Thus, although ADOC policy in theory provides for a means of release from SMU II, the reality for Koch is that he is likely to remain in what amounts to solitary confinement for the rest of his life.

Given the severity of the conditions in SMU II and the indefinite nature of Koch's confinement there, the question presented is whether the Constitution permits such segregation based solely on Koch's status as an STG member. After three days of trial it was abundantly clear that even if Koch's detention violates due process, there were no clearly established constitutional rules on the subject when Koch was validated as an AB member and placed in SMU II. Therefore, on April 20, 2001, we granted defendants' motion to dismiss Koch's individual capacity claims based on the doctrine of qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Having dismissed all claims for money damages, we then discharged the jury and retained jurisdiction over Koch's claim for injunctive relief — the only remaining part of this lawsuit. We instructed the parties to submit supplemental briefing on the issue whether the Due Process Clause warrants injunctive relief in this case. The parties have now completed their post-trial briefs.

DISCUSSION

The framework for our analysis is straightforward. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and its progeny establish a two-part inquiry. We must first determine whether Koch's indefinite detention in SMU II implicates a constitutionally-protected liberty interest. If we conclude that it does we must then examine the procedural and evidentiary safeguards afforded to Koch in order to decide whether there has been a deprivation of due process. See Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir.1987), cert. denied, 487 U.S. 1207, 108 S.Ct. 2851, 101 L.Ed.2d 888 (1988); Madrid v. Gomez, 889 F.Supp. 1146, 1270 (N.D.Cal.1995).

I. Is There a Liberty Interest At Stake?

As we discussed at length in our prior opinion, the Sandin decision worked a fundamental change in the way courts determine whether an inmate possesses a constitutionally-protected liberty interest. See Koch, 96 F.Supp.2d at 961-66. Specifically, Sandin abandoned the mandatory/permissive analysis of Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), in favor of an inquiry focusing on the nature of the deprivation suffered by the inmate. Sandin, 515 U.S. at 481, 115 S.Ct. 2293; see Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir.1996) ("Sandin ... refocused the test for determining the existence of a liberty interest away from the wording of prison regulations and toward an examination of the hardship caused by the prison's challenged action relative to `the basic conditions' of life as a prisoner."). Thus, after Sandin, a state-created liberty interest arises when the prison's conduct toward the inmate imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484, 115 S.Ct. 2293.⁶

Defendants initially argue that Sandin did not discard Hewitt's methodology as much as it added an additional requirement to the basic test. Hewitt held that mandatory language in a prison regulation could give rise to a liberty interest whereas permissive language could not. Hewitt, 459 U.S. at 471-72, 103 S.Ct. 864. Defendants contend that after Sandin an inmate must prove that he has suffered an atypical and significant harship in addition to...