Whisman v. Schwarzenegger

• Court: U.S. Court of Appeals — Ninth Circuit
• Citation: Whisman v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010)
• Decision Date: 07 September 2010
• Docket Number: No. 09-17144.,09-17144.
• Parties: John ARMSTRONG; James Amauric; Richard Ponciano; Jack Swensen; Billy Beck; Judy Fendt; Walter Fratus; Gregory Sandoval; Darlene Madison; Peter Richardson; Steven Hill; David Rose; David Blessing; Elio Castro; Elmer Umbenhower; Raymond Hayes; Gene Horrocks; Kiah Mincey; Clifton Feathers; Willie Johnson; David Badillo; James Simmons; Flora Abrams; Joey Gough; Timothy Whisman, Plaintiffs-Appellees, v. Arnold SCHWARZENEGGER; Matthew Cate; Bernard Warner; Sharon August; Deborah Hysen; Suzan Hubbard; Robert Ambroselli, Defendants-Appellants.

622 F.3d 1058

John ARMSTRONG; James Amauric; Richard Ponciano; Jack Swensen; Billy Beck; Judy Fendt; Walter Fratus; Gregory Sandoval; Darlene Madison; Peter Richardson; Steven Hill; David Rose; David Blessing; Elio Castro; Elmer Umbenhower; Raymond Hayes; Gene Horrocks; Kiah Mincey; Clifton Feathers; Willie Johnson; David Badillo; James Simmons; Flora Abrams; Joey Gough; Timothy Whisman, Plaintiffs-Appellees,

v.Arnold SCHWARZENEGGER; Matthew Cate; Bernard Warner; Sharon August; Deborah Hysen; Suzan Hubbard; Robert Ambroselli, Defendants-Appellants.

No. 09-17144.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Jan. 28, 2010.

Filed Sept. 7, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Michael W. Bien, Ernest Galvan, Gay C. Grunfeld, Blake Thompson, Warren E. George, San Francisco, CA, and Donald Specter, Sara Norman, Linda Kilb, Berkeley, CA, for the plaintiffs-appellees.

Edmund G. Brown Jr., Attorney General of the State of California; Jonathan L. Wolff, Senior Assistant Attorney General; Jay C. Russell, Supervising Deputy Attorney General; Scott J. Feudale, Deputy Attorney General, San Francisco, CA, for the defendants-appellants.

Thomas E. Perez, Assistant Attorney General of the United States, Samuel Bagenstos, Deputy Assistant Attorney General, Mark L. Gross, Attorney, Civil Rights Division of the Department of Justice, Conor B. Dugan, Attorney, Civil Rights Division of the Department of Justice, Washington, D.C., for amicus curiae the United States.

Appeal from the United States District Court for the Northern District of California, Claudia A. Wilken, District Judge, Presiding. D.C. No. 4:94-cv-02307-CW.

Before: STEPHEN REINHARDT, A. WALLACE TASHIMA and MARSHA S. BERZON, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

More than a decade and a half ago, disabled prisoners and parolees brought this action against the California officials with responsibility over the corrections system and parole proceedings. They sought accommodations to their disabilities that are required by the Americans with Disabilities Act, the Rehabilitation Act, and the Constitution. Defendants denied that they had any obligation to provide such accommodations, forcing plaintiffs to undertake years of litigation. Plaintiffs prevailed repeatedly in the district court and in this court. For most of the last decade, the litigation has been in a remedial phase.

Now, however, defendants are again denying any obligation to accommodate a set of disabled prisoners and parolees held under California's authority. Defendants house significant numbers of prisoners and parolees in jails operated by California's fifty-eight counties. Defendants contend that they have no responsibility for ensuring that any disabled prisoners and parolees that they so house receive accommodations. Their primary contention is that the regulations implementing the ADA, which make explicit that an entity cannot avoid its ADA obligations by operating “through contractual, licensing, or other arrangements” with third parties, 28 C.F.R. § 35.130(b)(1), are “manifestly contrary to the” ADA. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). That argument, and defendants' other arguments contesting their obligations to their prisoners and parolees housed in county jails, are without merit.

Accordingly, we affirm the portion of the district court's decision that holds that defendants are responsible for providing reasonable accommodations to the disabled prisoners and parolees that they house in county jails.

We also hold that the district court made the findings required by the Prison Litigation Reform Act regarding the necessity for relief and the narrowness and lack of intrusiveness of the relief order. We cannot affirm the precise relief ordered by the district court, however, because plaintiffs adduced insufficient evidence to justify such relief. Accordingly, we vacate and remand to the district court for further proceedings, including the introduction of additional evidence by the parties. The district court shall facilitate the parties' efforts, in particular the plaintiffs', to obtain evidence relevant to the resolution of this question.

I

In 1994, plaintiffs, a class of all present and future California state prison inmates and parolees with certain disabilities, sued defendants, California state officials with responsibility for the operation of the Department of Corrections and Rehabilitation (the “CDCR”) and the Board of Parole Hearings (“BPH”), challenging the State's treatment of disabled prisoners and parolees. A series of decisions by the district court and this court established that the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-34, and the Rehabilitation Act (“RA”), 29 U.S.C. § 794, applied to state prisoners, and that defendants' policies and procedures with regard to disabled prisoners and parolees were inadequate and violative of the ADA, the RA, and the Due Process Clause of the Constitution. See Armstrong v. Davis, 318 F.3d 965, 968-69(9th Cir.2003); Armstrong v. Davis, 275 F.3d 849, 854-58 (9th Cir.2001); Armstrong v. Wilson, 124 F.3d 1019, 1020-21 (9th Cir.1997); see also Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). Pursuant to court orders, the CDCR defendants produced a remedial plan in January of 2001, and in March 2001, the district court entered a permanent injunction directing enforcement of that plan. See Armstrong v. Davis, 58 Fed.Appx. 695 (9th Cir.2003). The district court entered a comparable permanent injunction with respect to the BPH defendants in 1999 and a revised permanent injunction in 2002. See Armstrong, 275 F.3d at 858.

Since the issuance of those injunctions and the decisions by this court affirming them, the litigation has been in a remedial phase, with defendants evaluating and modifying their procedures and policies and plaintiffs monitoring defendants' compliance with the injunctions and the remedial plan and at times seeking enforcement through the district court. Recent developments in the litigation have focused on such issues as defendants' obligation to create and implement a computerized system for tracking prisoners and parolees with disabilities in order to ensure that necessary accommodations are provided as prisoners and parolees move through the system. See Armstrong v. Schwarzenegger, No. 4:94-cv-02307 (N.D.Cal. May 30, 2006) (order granting motion to enforce revised permanent injunction); Armstrong v. Schwarzenegger, No. 4:94-cv-02307 (N.D.Cal. Sept. 11, 2007) (order granting in part plaintiffs' motion to enforce the May 30, 2006 order).

At issue in the current appeal is plaintiffs' May 28, 2009 motion to require defendants to track and accommodate the needs of class members housed in county jails and to ensure a workable grievance procedure for such class members. Pursuant to both contracts with the counties and its statutory authority under Cal.Penal Code § 4016.5, the State houses prisoners and parolees in county jails in a variety of circumstances, including, for example: for the period between a parole hold being placed on an individual and the individual's parole revocation hearing; for the full term of parole subsequent to parole being revoked; and for in-custody drug treatment programs. In the aggregate, these policies lead to significant numbers of persons incarcerated pursuant to the State's authority being housed in county jails; for instance, the San Mateo County Jail houses an average of 480 parolees a day, and Alameda and Sacramento County jails each house an average of 1000 parolees a day. In addition to these current placements, we take judicial notice of the State's recent proposal to alter its sentencing practices to place in county jails approximately 14,000 persons who would otherwise be incarcerated in prisons. See Defendants' Response to Three Judge Court's October 21, 2009 Order, Coleman v. Schwarzenegger, Nov. 12, 2009, No. 2:90-cv-00520, (C.D. Cal Nov. 12, 2009), ex. A.

In their motion, plaintiffs sought an “order requiring Defendants to develop and implement effective policies and procedures ensuring all prisoners and parolees with mobility, vision, hearing, developmental, kidney, and learning disabilities housed in county jails receive the accommodations they need.” Defendants replied by denying any responsibility towards such prisoners and parolees. On September 16, 2009, the district court issued an order granting plaintiffs' motion. It found that defendants were violating the ADA, the RA and the court's prior orders by failing to provide disability accommodations for disabled class members housed in county jails. It ordered defendants to develop and issue to the counties a plan to comply with the ADA by improving the tracking of state prisoners and parolees they house in county jails, notifying jails when the state sends the county a class member with a disability, and ensuring that class members housed in the jails have access to an adequate ADA grievance procedure. The court ordered that “at a minimum” several specific provisions regarding the timing of tracking, and response to notice of disabilities and class members' grievances be included in the plan. Defendants timely appealed.

II

As a preliminary matter, plaintiffs challenge our jurisdiction over this appeal. We have “jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. Plaintiffs contend that the district court's order was insufficiently final to invest us with jurisdiction. “Under modern doctrine, ‘[a] “final decision” generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment....’ ” United States v. One 1986 Ford Pickup, 56 F.3d 1181, 1184 (9th Cir.1995). Finality is “to be given a practical rather than a...