Case 2:12-cv-01059-KJM-AC Document 18 Filed 11/15/12 Page 1 of 28

1 KEITH WATTLEY, SBN 203366

2

UnCommon Law 220 4th Street, Suite 103

3 Oakland, CA 94607

4

Telephone: (510) 271-0310 Facsimile: (510) 271-0101

5 Email: kwattley@uncommonlaw.org

6 Attorney for Plaintiff 7

8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10

11

12

13 SAM JOHNSON,

14

Plaintiff,

15 v.
16

17 JENNIFER SHAFFER, et al.,

18

Defendants.

19

) ) Case No.: 2:12-cv-1059 GGH P ) ) FIRST AMENDED CIVIL ) COMPLAINT FOR ) DECLARATORY AND ) INJUNCTIVE RELIEF ) ) )

20

INTRODUCTION

21 1. This is a first amended civil rights complaint by state prisoner Sam Johnson
22 seeking declaratory and injunctive relief under constitutional, statutory and regulatory law
23 against officials of the State of California, including the Governor, the Secretary of the
24 California Department of Corrections and Rehabilitation (CDCR) and various officials of
25 the Board of Parole Hearings (BPH) for their unconstitutional bias in implementing a
26 system of fabricated evidence to support their decisions to deny parole.
27

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1

2. The Court granted Defendants’ motion to dismiss the original complaint on the

2 grounds that Plaintiff had not alleged sufficient facts to support his claim of unlawful bias

3 as reflected in Defendants’ current utilization of psychological evaluations in the parole

4 consideration process. This amended complaint identifies the timing and genesis of BPH’s

5 development of the Forensic Assessment Division (FAD). It specifically alleges that the

BPH actually determined that it was improper and impossible for psychologists to predict 6

violence risk or to assess a prisoner’s insight and remorse, that their own experts 7
vehemently opposed the FAD protocol, and that these determinations were made only 8
months before they initiated the FAD process. BPH’s irreconcilable and inexplicable 9
change in position is specifically aimed at protecting its parole decisions from judicial 10
scrutiny of its practices. 11
3. This amended complaint makes clear that BPH’s actions were directly intended 12
to maintain its impermissibly low rate of granting parole by fabricating evidence that would 13
support its unlawful decisions. 14
JURISDICTION AND VENUE 15
4. Plaintiff brings this action to redress the deprivation of rights secured to him by 16
the Fourteenth Amendment to the United States Constitution. This action also arises under

17 Section 7 of Article 1 of the California Constitution, as well as the statutory and regulatory law

18 of the State of California.

19

5. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and

20 1343, and 42 U.S.C. § 1983. The United States Supreme Court has expressly held that

21 prisoners challenging parole consideration procedures may bring suit in federal court under §

22 1983. Wilkinson v. Dotson, 544 U.S. 74 (2005). This Court also has supplemental jurisdiction

23 over Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.

24

6. Venue is proper in this judicial district under 28 U.S.C. § 1391 because the

25 defendants are employed in the County of Sacramento, which is in this judicial district.

26

27

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THE PARTIES

2

A. Plaintiff

7. Sam Johnson (“Johnson”) is a prisoner incarcerated at San Quentin State Prison. 3
He is serving a sentence of 25 years to life, plus four years, following his 1991 conviction for 4
first degree murder, robbery and assault. He has always maintained his innocence of these 5
crimes.

6 B. Defendants

7

8. Defendant JENNIFER SHAFFER (“Shaffer”) is the Executive Officer of the

8 Board of Parole Hearings (“BPH”). As the administrative head of the agency, she is

9 responsible for the day-to-day operations of the BPH, including oversight and supervision of its

10 Forensic Assessment Division. She is sued in her official capacity only.

11

9. Defendant MATTHEW CATE (“CATE”) is the Secretary of the California

12 Department of Corrections and Rehabilitation (“CDCR”), the umbrella organization under

13 which the BPH was formed. For years, Secretary Cate has been aware of the problems with the

14 FAD protocol, yet he has not acted to address them. He is sued in his official capacity only.

15

10. Defendant EDMUND G. (JERRY) BROWN, Jr. is Governor of the State of

16 California and the Chief Executive of the state government. He is sued in his official capacity.

17 As Governor, Mr. Brown is responsible for the appointment of Defendant Secretary of the
18 CDCR and, subject to State Senate confirmation, every Commissioner of the Board of Parole
19 Hearings (“BPH”). The Governor also appointed the Defendant Executive Officer of the BPH. 20 The Governor, in union with those whom he appoints, and by and through those persons
employed by the other defendants, controls and regulates Plaintiff’s custody. The Governor 21
has also endorsed reliance on Defendants’ FAD protocol to deny prisoners parole. 22
11. Defendant CLIFF KUSAJ, Psy. D., (“KUSAJ”) is the head of the BPH’s Forensic 23
Assessment Division (“FAD”), through which BPH prepares psychological evaluations and 24
risk assessments for consideration by BPH Commissioners in determining prisoners’ suitability 25 for parole. He is responsible for reviewing, approving and defending psychological 26 evaluations prepared as part of the FAD protocol. He is sued in his official capacity only.
27

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12. Defendant RICHARD HAYWARD, Ph.D., (“HAYWARD”) is a psychologist

2 employed by the FAD. Dr. Hayward authored the report utilized to deny Plaintiff parole at his

April 21, 2010, parole hearing. He is sued in his official capacity only. 3
13. Defendant THOMAS POWERS (“POWERS”) is or was at some time relevant to 4
this complaint a Commissioner of the Board of Parole Hearings. As a Commissioner, 5
Defendant Powers is responsible for the operation and policy making of the BPH and he

6 presides or presided over hearings to determine whether to release prisoners on parole.

7 Defendant Powers presided over Plaintiff’s parole hearing on April 21, 2010. He is sued in his

8 official capacity only.

9

14. Defendant AL FULBRIGHT (“FULBRIGHT”) is or was at some time relevant to

10 this complaint a Deputy Commissioner of the Board of Parole Hearings. Defendant Fulbright

11 presided along with Defendant Powers at Plaintiff’s parole hearing on April 21, 2010. He is

12 sued in his official capacity only.

13

15. Plaintiff is informed and believes, and on that basis alleges, that at all times

14 mentioned in this complaint each individual Defendant was acting under color of state law.

15

STATEMENT OF THE FACTS

16

Background

17

16. The BPH is charged with determining whether and when indeterminately-

18 sentenced prisoners (“Lifers”) in California are suitable to be released on parole. The BPH is

19 responsible for promulgating rules, policies and regulations to effectuate the statutory mandate

20 to normally grant parole to Lifers when they first become eligible for parole. Cal. Penal Code,
§ 3041. The BPH is required to grant parole as long as the Lifer being considered does not 21
present an unreasonable risk to public safety. BPH and its predecessor entities have established 22
regulations setting forth the criteria to be considered in determining a prisoner’s suitability for 23
release on parole. Recently added to those regulations are new procedures requiring 24
psychological evaluations to be conducted and reported by the FAD for every single Lifer at
25 every single parole consideration hearing for him or her. Cal. Code Regs., tit. 15, § 2240.

26

17. Approximately 32,000 California prisoners are serving life sentences with the

27 possibility of parole. Some 10,000 of these prisoners have already served their minimum terms

28

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1 of seven, 15 or 25 years and are therefore eligible for parole consideration by the BPH. Courts
2 have consistently held that California’s parole scheme creates a constitutionally protected liberty interest in parole, and the controlling statute presumes that parole will be granted most
3 of the time. However, over the past 30 years, parole officials have implemented various
4 policies making parole a virtual impossibility when prisoners first appear before the BPH.
5 Indeed, despite their constitutionally- protected liberty interest in parole and the statutory
6 mandate that parole normally be granted when they first become eligible, less than 1% are
7 actually granted parole at their initial parole hearings, and less than 20% are granted parole at
8 any subsequent hearings.

9

The Changing Role of Psychological Evaluations

10

18. The BPH and its predecessors have long utilized psychological evaluations when

11 considering prisoners’ suitability for parole, even though such evaluations have never been

12 authorized for more than a limited class of lifers: “When the diagnostic study of any inmate

13 committed under subdivision (b) of Section 1168 so indicates, the director shall cause a

14 psychiatric or psychological report to be prepared for the [parole board] prior to the release of

15 the inmate. The report shall be prepared by a psychiatrist or psychologist licensed to practice in

16 this state.” Cal. Pen. Code, § 5068. BPH’s orders for psychological evaluations for most lifers

17 are not supported by a diagnostic study indicating such evaluations to be necessary or

18 appropriate.

19

19. Prior to 2007, psychological evaluations were routinely conducted and reported by

20 mental health professionals who are on staff at the institutions where parole hearings occur.

Although the purpose of these evaluations was to identify any existing mental illness that might 21
impact a prisoner’s risk to public safety, some of the reports began to include assessments of 22
prisoners’ “insight” into or “remorse” for their offenses. By November 2005, BPH sought to 23
clarify and limit the role of these reports to focus on the presence or absence of mental illness.

24 Specifically, the Board determined that these evaluations should not assess a prisoner’s insight

25 because “neither clinical psychologists nor psychiatrists are able to accurately decipher an

26 inmate’s level of insight into the causative factors of the Life Crime.” Instead, the Board

27 determined that commissioners “should make their own independent determination of the

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1 matter.” For the same reason and at the same time, the Board determined that these evaluations
2 should not assess a prisoner’s remorse for the commitment offense. 20. By January 2006, the Board went even further and admitted that there was no
3 legitimate basis for continuing to obtain psychological evaluations for parole consideration
4 hearings at all, concluding that “these reports have been used for purposes for which they were
5 not intended,” which was “especially true for those inmates who are not part of the Mental
6 Health Services Delivery System (MHSDS).” In fact, the Board issued a directive that month
7 that “Psychological reports shall not be ordered for the purposes of evaluating parole suitability
8 of non-MHSDS inmates.”

9

21. Later in 2006, BPH inexplicably changed its mind and proposed not only that all

10 Lifers would receive a psychological evaluation but that three risk assessment tools should be

11 administered to each Lifer to predict their risk of future violence. These tools were the

12 Psychopathy Checklist-Revised (PCL-R), the 20-item Historical, Clinical, Risk Management

13 tool (HCR-20), and the Level of Service/Case Management Inventory (LS/CMI).

14

BPH Experts Reject these Tools

15

22. The PCL-R is a list of traits associated with a stereotypical psychopathic

16 personality. Critics complain that the focus on historical factors has the effect of

17 overdiagnosing psychopathy and is not useful in predicting future violence. Specifically, this

18 instrument is considered “ill suited for tracking any changes in an inmate’s risk during

19 incarceration.” Nevertheless, to lay observers, like BPH commissioners, the “psychopath”

20 label leads directly to negative implications for future violence. Researchers have observed,

“For members of the lay public, the term psych path evokes images of such notorious serial 21
killers as Theodore Bundy, Charles Manson, and John Wayne Gacy” and, “At a basic level, 22
psychopathy seems to connote extreme and predatory violence.” Yet, the PCL-R has been 23
found to be only modestly predictive of future violence. Even the creator of this instrument has

24 expressed disappointment over its reckless use by inadequately-trained and inexperienced

25 psychologists to predict violence.

26

23. The HCR-20 is a research instrument but not a formal measurement instrument. It

27 is comprised of ten Historical, unchanging items; five Clinical, dynamic items; and five Risk

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1 Management items. This instrument was validated primarily on forensic patients, civil 2 psychiatric patients and mentally disordered offenders. The Clinical items include “insight”
and “impulsivity,” but the instrument contains no behavioral or conceptual anchors for 3
assessing these items. The Risk Management items require evaluators to guess the future 4
circumstances in which the subject will find himself or herself. Furthermore, evaluators have 5
no guidance or consistency in coding the individual items, either in rating them as 0, 1 or 2 or 6
in characterizing them as low or high. There are also no published norms to aid in interpreting 7 the test results of a person or group in relation to a defined population. Lastly, this tool does 8 not structure how individual items are to be combined to produce an overall assessment of risk.
9 Because of the lack of guidance in interpreting raw scores on the HCR-20, psychologists are
10 essentially left to predict future violence based on their clinical judgment, which is considered
11 no more accurate than flipping a coin. These limitations are compounded when the instrument
12 is administered by relatively inexperienced, untrained psychologists like those working for the

13 FAD.

14

24. The LS/CMI is an instrument that utilizes dozens of items separated into a series

15 of risks needs factors. BPH’s Senior Psychologist has admitted that this tool has not been

16 established to predict violence in any population, and it only moderately predicts general

17 recidivism. Furthermore, those who developed the LS/CMI caution against reliance solely on

18 the combined scores of the assessed risk factors to produce an overall risk; yet, that is generally

19 how the FAD now utilizes this tool.

20

25. In August 2006, BPH convened a panel of forensic psychologists and other

experts to assess the validity of these three tools for use in California’s parole consideration 21
process. The invited participants in this meeting argued against the BPH’s use of these tools, 22
criticizing them for their overreliance on historical, static factors and for the fact that they had 23
never been validated for predicting violence among long-term prisoners like California’s lifers.

24 Shockingly, not only did BPH move forward with these tools anyway, but BPH officials lied to

25 the public and to the state’s regulatory agency by saying there was a consensus among these

26 experts, and that they agreed that these tools were appropriate.

27

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26. The experts have vehemently denied endorsing these tools and deny that there was

2 anything close to a consensus. At least one expert was adamant and very clear:

This is a misrepresentation of the meeting that I attended; the panel reached no

3

such consensus, and I continue to disagree with the administration of these risk

4

assessment tools to term-to-life prisoners. [¶] Neither the LS/CMI nor the HCR-

20/PCL-R has been validated for a population such as California’s term-to-life

5

prisoners. These risk assessments were designed primarily to identify those people

6

who have been convicted of crimes but who do not need incarceration and can be

better managed in the community; there were not created to predict future

7

violence of people who have matured in age while serving long sentences in

8

prison. Data has shown that the California lifer population has an extremely low recidivism rate – under 2% according to most observers – and the LS/CMI and

9

HCR-20?PCL-R tend to over-predict the failure rate for these prisoners,

classifying their risk of violence as higher than it truly is. 10
27. Nevertheless, by the 2006/2007 Budget Year, BPH was requesting more than $3.5

11 million annually for psychological evaluations – which months earlier the Board admitted
12 were unnecessary and being misused. This figure nearly doubled to more than $6 million by

13 2008. In the meantime, in April or May 2007, BPH issued a memo forbidding prison-based
14 psychologists from conducting any more lifer evaluations, choosing instead to have its new

15 FAD team handle all of them.

16 FAD Assumes New Prominence Solely to Exploit Judicial Loophole
17 28. The bias toward these invalid tools and against granting parole is even more

18 apparent when considering that BPH’s increased emphasis in these reports on the presence or
19 absence of insight and remorse (factors with no statistical correlation to risk in this population)

20 occurred in the midst of a continuing trend of judicial opinions criticizing the parole authority’s

21 decision making, particularly its findings that were directly at odds with those of psychologists
22 working at the institutions. See, e.g., In re Lawrence, 44 Cal.4th 1181, 1223-1224 (2008).

23 Indeed, in the period since the California Supreme Court issued an opinion affirming the parole
24 authority’s reliance on a prisoner’s lack of insight when denying him parole (In re Shaputis, 44
25 Cal.4th 1241 (2008)), BPH has found a lack of insight in every prisoner whose parole the BPH

26 denies, and FAD evaluators are the primary tool in making this finding – again, findings BPH
27 had already acknowledged these psychologists cannot make.

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29. In the year after Shaputis was decided, a purported “lack of insight” was cited in

2 twice as many appellate opinions as had been the case in the 31 years before Shaputis.

3 Similarly, the Governor cited a lack of insight in only 12% of his decisions blocking parole in

4 the year preceding Shaputis, but he did so in a whopping 78% of his decisions the year after

5 Shaputis was decided. Overall, the Governor cited FAD evaluations in nearly 90% of his

6 decisions blocking parole in 2009, a rate that continued into 2011. In other words, BPH’s

7 implementation of the FAD protocol has clearly had its intended effect of prejudicing

8 commissioners and the Governor against granting parole. The primary purpose of establishing

9 the FAD and implementing its new protocol was to prejudice lifers appearing before the Board

10 by making it harder for them to obtain a favorable psychological evaluation, harder to obtain a

11 favorable parole determination and harder to establish a favorable administrative record for

12 challenging parole decisions in court.

13

30. In summary, the BPH hired its own team of FAD psychologists to prepare

14 evaluations because those prepared by prison-based clinicians were too favorable to prisoners

15 and too often supported judicial rejection of BPH decisions; they did this after admitting that

16 the evaluations themselves were unnecessary and being misused; they ordered their new FAD

17 team to utilize risk assessment tools their own experts said were invalid and unjustifiably

18 produce elevated assessments; they ordered their FAD team to assess insight and remorse

19 immediately after admitting that these clinicians are distinctly incapable of assessing such

20 matters; and these evaluations are cited for their elevated risk assessments and their

21 assessments of insight and remorse every time parole is denied.

22

31. BPH actually established the FAD years before attempting to promulgate

23 regulations that might authorize it. Furthermore, when BPH did attempt to promulgate such

24 regulations, it did so by lying to the state agency responsible for certifying compliance with

25 applicable rulemaking procedures, primarily citing the nonexistent consensus among is expert

26 panel.

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FAD Protocol Affects All Lifers but Escapes External Scrutiny

2

32. Over the past six years – including before, during and since Plaintiff’s April 2010

3 parole hearing – BPH has established a pattern or practice of utilizing the FAD to prejudice

4 BPH commissioners against granting parole to eligible prisoners. In fact, Plaintiff’s counsel has

5 been contacted by lifers at 27 of California’s 32 prisons housing lifers (84%), including all

6 eight of the prisons housing the highest concentrations of parole-eligible lifers. Plaintiff’s

7 specific challenges to the FAD protocol (detailed below) exemplify the complaints these

8 prisoners make.

9

33. BPH has effectively shielded both the nature and scope of its FAD deficiencies

10 and biases from public scrutiny. In July 2010, California’s Office of the Inspector General

11 (OIG) issued a Special Report on BPH’s Psychological Evaluations, in which the OIG

12 determined that BPH has no system for tracking or otherwise monitoring the number of errors

13 in psychological evaluations, no system for determining whether FAD psychologists are

14 assessing higher levels of risk than were found in previous evaluations of the same prisoners,

15 an inadequate oversight system for senior FAD psychologists to review the reports of FAD

16 staff psychologists, and inadequate training of its psychologists. In essence, senior

17 psychologists routinely rubber-stamp staff psychologists’ reports without verifying the validity

18 of anything written. Due to these deficiencies, the OIG was unable to conduct the kind of

19 review requested by the California Legislature, which provides oversight for BPH

20 appointments and operations.

21

Plaintiff’s Case

22

34. Plaintiff is serving a life sentence for first degree murder at San Quentin State

23 Prison. He is currently in his third term as Chairman of San Quentin’s Men’s Advisory

24 Council, a role in which he regularly interacts with hundreds of prisoners of all races,

25 ethnicities and ages, and he acts as the liaison between these prisoners and prison officials to

26 resolve disputes and inform policy decisions.

27

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35. Plaintiff’s Comprehensive Risk Assessment (“CRA”) was conducted by FAD

2 psychologist Richard Hayward, Ph. D., in February 2009. The CRA provides approximately

3 three pages of single-spaced, detailed history covering Plaintiff’s childhood and adolescence,

4 family history, education, development, relationships, leisure activities, employment history,

5 and post-parole plans – all of which appear void of any significant red flags. Next, the clinical

6 assessment section reviewed Plaintiff’s mental health, medical, and substance use history –

7 again, all of which appear void of significant problems. The evaluator stated that Plaintiff was

8 “cooperative” during the interview, that he “displayed a full range of affect,” that his mood was

9 “neutral,” and that there were “no signs of any thought disturbances.” Prior to the FAD

10 protocol, this would have been the entirety of the assessment because no mental disturbances

11 were identified. Because of the FAD protocol, the evaluation went further.

12

36. Surprisingly, Dr. Hayward diagnosed Plaintiff as having Antisocial Personality

13 Disorder – an Axis II disorder within the Diagnostic and Statistical Manual of Mental

14 Disorders (“DSM-IV-TR”). Dr. Hayward stated that the disorder was attributable “to the

15 committing offense, the history of community offenses and arrests and the rule violations

16 noted.” However, reviewing Section 301.70 of the DSM-IV-TR, it does not appear that

17 Plaintiff meets most of the diagnostic criteria.

18

37. Dr. Hayward also utilized the three risk assessment tools currently employed by

19 the FAD to project Plaintiff’s future risk. According to Dr. Hayward, Plaintiff’s score on the

20 PCL-R placed him in the “higher range of the clinical construct of psychopathy when

21 compared to other male offenders” – specifically, higher than fifty-seven percent of those

22 offenders assessed using this instrument. Similarly, Dr. Hayward claimed that Plaintiff’s scores

23 on the HCR-20 placed him in the “high range for violent recidivism,” and the LS/CMI placed

24 him in the “high category,” above thirty-three percent of “the North American sample of

25 incarcerated male offenders.” Predictably, Dr. Hayward wrote that Plaintiff had “a lack of

26 insight, negative attitudes, impulsivity and a lack of responsiveness to treatment.” He did not

27

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1 offer any basis for his finding of a “lack of insight.” Also predictably, the BPH hearing panel

2 cited a lack of insight and understanding of the crime as the basis for denying Plaintiff parole.

3

38. Plaintiff and his attorney made numerous attempts to address and correct Dr.

4 Hayward’s report because it contained numerous conclusions that were either unsupported by

5 the record or directly contrary to other statements in the report itself. Plaintiff’s counsel wrote

6 to the BPH more than two months before the April 2010 hearing, raising nine separate

7 substantial errors Dr. Hayward made. Among those errors were the following:

8

a. Dr. Hayward’s report claimed a “substantial history of impaired impulse control,”

9

“impaired behavioral control,” and “negative attitudes.” However, Plaintiff had no

10

history of violence, no juvenile record and only three misdemeanor convictions

11

prior to the commitment offense. He maintained steady employment (including

12

strong leadership positions) both prior to and throughout his nineteen years of

13

incarceration. His sole rule violation report in prison was six years prior to the

14

hearing and was categorized as only a Division “F” offense.

15

b. Although Dr. Hayward acknowledged that Plaintiff has no mental illness, has

16

never received mental health treatment in prison and has no history of any

17

problems with drugs or alcohol, he inexplicably concluded there was evidence of

18

“a lack of responsiveness to treatment” that increased Plaintiff’s risk to the public

19

if released.

20

c. Dr. Hayward claimed that Plaintiff “had significant problems with previous

21

violence, psychopathy (sic) and Antisocial Personality Disorder” prior to the

22

commitment offense, none of which is true.

23

d. Dr. Hayward relied on the following factors in determining that Plaintiff scored in

24

the higher range on the PCLR: “Superficial Charm, Pathological Lying, Shallow

25

Affect, Poor Behavioral Controls, Impulsivity, Irresponsibility.” However, there

26

was no evidence anywhere in the assessment supporting a finding that Plaintiff is

27

a pathological liar, nor is there evidence that he has poor behavior control.

28

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e. In discussing the Clinical, or more dynamic, aspects of the HCR-20, Dr. Hayward

2

generically asserted that there was evidence of “a lack of insight, negative

3

attitudes, impulsivity and lack of responsiveness to treatment.” Yet, nowhere did

4

Dr. Hayward explain any evidentiary basis for this substantial finding.

5

f. The assessment stated that Plaintiff’s parole plans indicated problems in the area

6

of personal support and compliance with remediation attempts. Yet, Dr. Hayward

7

found “generally feasible” Plaintiff’s plans to live with his wife and children and

8

to seek a job in the restaurant industry where he was successfully employed for

9

roughly 15 years prior to his incarceration. These contradictory statements were

10

never reconciled.

11

g. Factors that purportedly increased Plaintiff’s risk of recidivism were a “reduced

12

level of pro-social family support, a reduced level of constructive leisure

13

activities, associations with criminally oriented companions, a pro-criminal

14

orientation and an antisocial pattern.” However, these statements directly

15

contradict the findings elsewhere in the report that Plaintiff maintains a positive

16

relationship with his two surviving family members and his wife’s family, is

17

married to the mother of two of his children, has completed his Associate’s

18

Degree in prison and has been chair of the Men’s Advisory Council for years.

19

h. There were multiple instances in the assessment where Dr. Hayward relied on a

20

claimed lack of remorse and/or insight into the commitment offense as a factor

21

demonstrating an increased risk to public safety if released. These statements were

22

based on the fact that Plaintiff has always steadfastly maintained that he is

23

innocent of this crime. However, Defendants are prohibited from finding

24

unsuitability based on a prisoner’s refusal to admit guilt (see Penal Code section

25

5011 and Section 2236 of Title 15 of the California Code of Regulations). More

26

importantly, Plaintiff has expressed deep and sincere remorse for his role in the

27

events that led up to the commitment offense.

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i. The assessment contains no legitimate explanation or information regarding Dr.

2

Hayward’s methodology in evaluating Plaintiff’s risk to the public if paroled. Dr.

3

Hayward states: “Ultimately, whether an inmate will engage in future violence is a

4

function of a variety of factors that include history, personal disposition, and

5

situational variables. The evaluator has taken these factors into consideration in

6

determining how much weight to allot to each of the measures and in formulating

7

an overall estimate of risk.” Unfortunately, from this the Board was unable to

8

determine which of the many factors relied on by Dr. Hayward – many of which

9

were invalid or unsupported by the facts – were used to determine Plaintiff’s level

10

of risk. In light of the fact that the findings and assessment in this report are so far

11

at odds with the prior psychological report for Plaintiff,1 the findings in this report

12

required considerable explanation.

13

BPH Ignores its own FAD Rules

14

39. The FAD’s psychological protocol required the Board to conduct a new

15 evaluation if Dr. Hayward’s report contained even one substantial error. Yet, Plaintiff

16 identified nine separate substantial errors and BPH responded in March 2010 by refusing to

17 remove Dr. Hayward’s report and finding no administrative or substantive errors in the report.

18 Ironically, the hearing panel actually agreed with Plaintiff that Dr. Hayward’s report contained

19 substantial errors, yet the panel still relied on the report to deny Plaintiff parole.

20

40. Defendants failed to alert the April 2010 hearing panel to the controversy

21 regarding Dr. Hayward’s psychological evaluation despite the exchange of correspondence

22 during the two months leading up to the scheduled hearing. In fact, presiding commissioner

23 Powers had never even seen the original letter highlighting the nine substantial errors in the

24

25

1 The prior report, written by a staff psychologist at the prison, not by the FAD, found that

26 Plaintiff “showed better than average insight into himself and his difficulties” and he “seems

capable of exercising good judgment.” That report did not diagnose antisocial personality disorder 27 and found that Plaintiff’s “potential for violence at this time appears to be therefore lower than

28 average.”

14
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1 evaluation until Plaintiff’s counsel provided him with a copy of it after the hearing had already

2 begun.

3

41. Despite the provisions in California Penal Code Section 2081.5 and California

4 Government Code § 11181, subdivisions (e) and (f), which direct Defendants to make

5 psychological evaluators available for questioning in parole consideration hearings, Plaintiff is

6 informed and believes that Defendants never grant requests that such evaluators appear and

7 testify in parole consideration hearings. Defendants failed to even respond to Plaintiff’s request

8 prior to and during his April 2010 hearing.

9

42. Defendants denied Plaintiff’s counsel’s request for the raw data and risk

10 assessment scores that purportedly supported Dr. Hayward’s findings.

11

43. Defendant’s April 2010 parole decision became final on August 19, 2010.

12 Plaintiff is due to have his subsequent parole consideration hearing no later than April 21,

13 2013.

14

44. As long as the challenged report remains in Plaintiff’s prison file, Defendants will

15 continue to rely on it at Plaintiff’s next parole consideration hearing and all future hearings

16 unless and until he is released on parole, regardless of whether subsequent risk assessments are

17 conducted and reported.

18

45. Defendants have refused numerous requests to record and transcribe meetings

19 between FAD psychologists and the prisoners they evaluate, even though such meetings are not

20 confidential and such recordings and transcripts would easily resolve the majority of disputes

21 raised regarding statements recorded in the written reports.

22

Need for Injunctive Relief

23

46. BPH now requires the FAD to conduct a psychological evaluation prior to every

24 single parole consideration hearing. Accordingly, all of the roughly 10,000 Life prisoners who

25 have served their minimum terms and are therefore eligible for parole consideration are directly

26 impacted by these unlawful patterns and practices.

27

28

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1

47. Defendants’ policies, practices, conduct, and acts alleged herein have resulted and

2 will continue to result in irreparable injury to Plaintiff, including but not limited to violations of

3 his constitutional rights. Plaintiff has no plain, adequate or complete remedy at law to address

4 the wrongs described herein. Defendants will continue to conduct unconstitutional parole

5 consideration hearings unless enjoined by this Court.

6

48. An actual controversy exists between Plaintiff and Defendants in that Plaintiff

7 contends that the policies, practices and conduct of Defendants alleged herein reflects an

8 unlawful and unconstitutional bias, whereas Plaintiff is informed and believes that Defendants

9 contend that said policies, practices and conduct are lawful and constitutional. Plaintiff seeks a

10 declaration of rights with respect to this controversy.

11

49. Injunctive relief including but not limited to an order enjoining Defendants’

12 policies, practices, regulations, actions and omissions such as are alleged herein, and requiring

13 the repeal or reformation of Defendants’ policies, practices, regulations, actions or omissions

14 so as to prevent their impermissible effect, is therefore appropriate and necessary to avoid

15 irreparable harm to Plaintiff and to effectuate the purpose of the United States and California

16 Constitutions and the other statutes and laws referenced herein as the subject of Plaintiffs’

17 claims for relief.

18

FIRST CAUSE OF ACTION

19

50. Plaintiff realleges and incorporates by reference paragraphs 1 through 49 of this

20 complaint as though fully set forth herein.

21

51. California’s parole scheme creates a constitutionally protected liberty interest in

22 having Plaintiff’s parole application duly and fairly considered and in being released on parole.

23

52. Defendants are utilizing tools their own experts determined are invalid and

24 produce impermissibly elevated assessments. They also direct their FAD team to assess

25 matters (insight and remorse) Defendants already admitted they are incapable of assessing.

26 Defendants applied these tools in Plaintiff’s parole hearing, as they have in most hearings

27 conducted since 2006 and nearly all hearings held since January 2009. The primary reason for

28

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1 the FAD protocol is to fabricate evidence that will protect BPH decisions from judicial scrutiny

2 so that BPH can maintain its impermissibly low rate of granting parole, particularly when

3 Lifers first appear before the BPH.

4

53. Defendants’ obvious bias against granting parole denied Plaintiff a fair hearing

5 and violates his right to due process under the Fourteenth Amendment.

6

SECOND CAUSE OF ACTION

7

54. Plaintiff realleges and incorporates by reference paragraphs 1 through 53 of this

8 complaint as though fully set forth herein.

9

55. In their efforts to justify the development of the FAD and its use of the current

10 psychological evaluation methodology and tools, Defendants lied to the public and to the

11 California Office of Administrative Law regarding the process for establishing the FAD and

12 selecting the three risk assessment tools currently being utilized by the FAD to predict risk.

13 They falsely claimed a consensus among their expert panel and falsely claimed that these tools

14 were valid.

15

56. Defendants’ intentional misconduct and reliance on invalid instruments violated

16 Plaintiff’s right to due process under the Fourteenth Amendment.

17

THIRD CAUSE OF ACTION

18

57. Plaintiff realleges and incorporates by reference paragraphs 1 through 56 of this

19 complaint as though fully set forth herein.

20

58. Any respectable process through which written reports are considered in a manner

21 that impacts a person’s liberty interest must also provide a mechanism for correcting errors in

22 those reports so as not to unjustly harm the subject of the report. Here, the FAD protocol

23 requires the removal or correction of FAD reports when they contain at least one substantial

24 error or at least three administrative errors. However, Defendants refused to remove or in any

25 way correct Dr. Hayward’s report even though it contained nine substantial errors – some of

26 which Defendants even acknowledged.

27

28

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1

59. Defendants’ intentional disregard for their own rules and their reliance on

2 evidence lacking sufficient indicia of reliability to consider Plaintiff’s suitability for parole

3 violates his right to due process under the Fourteenth Amendment.

4

FOURTH CAUSE OF ACTION

5

60. Plaintiff realleges and incorporates by reference paragraphs 1 through 59 of this

6 complaint as though fully set forth herein.

7

61. At a minimum, California Lifers have a constitutional right to notice of the

8 evidence being used to consider their suitability for parole. While Defendants provided

9 Plaintiff with Dr. Hayward’s report, they refused his request for the raw data and underlying

10 scores Defendants claim supported the statements in the report. They also did not provide

11 Plaintiff or his counsel with any recording, transcript or other notes from his interview with Dr.

12 Hayward. Dr. Hayward’s report may only be considered by Defendants to evaluate Plaintiff’s

13 suitability for parole if the report’s contents are both relevant and reliable. However, Plaintiff

14 has absolutely no way to evaluate the relevance and reliability of Dr. Hayward’s conclusions

15 without access to the raw data and underlying scores from his evaluation. Indeed, this raw data

16 is the actual evidence that either supports or does not support the ultimate conclusion of

17 whether Plaintiff presents a current risk to the public. These concerns are heightened by the

18 internal inconsistencies in the report itself, some of which the hearing panel even

19 acknowledged.

20

62. Defendants’ refusal to provide the underlying data they claim supported Dr.

21 Hayward’s conclusions denied Plaintiff access to the information being used against him in

22 violation of due process under the Fourteenth Amendment.

23

FIFTH CAUSE OF ACTION

24

63. Plaintiff realleges and incorporates by reference paragraphs 1 through 62 of this

25 complaint as though fully set forth herein.

26

64. At a minimum, California Lifers have a constitutional right to have an opportunity

27 to be heard during their parole consideration hearings. Defendants’ refusal to provide Plaintiff

28

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1 with the raw data underlying Dr. Hayward’s report deprived him of the knowledge of all the

2 information to which he needed to respond to protect his rights. For example, without the basis

3 for Dr. Hayward’s conclusions, Plaintiff was unable to address the new diagnosis of Antisocial

4 Personality Disorder or the claims of impulsivity or failure to benefit from treatment. Indeed,

5 none of these claims had ever before been made in Plaintiff’s life, so their basis at this time

6 remains a complete mystery.

7

65. Defendants’ unfounded diagnosis of Antisocial Personality Disorder here is

8 consistent with its practice of over-diagnosing the alleged disorder using these risk assessment

9 tools, even though a large number of prisoners, like Plaintiff, do not meet the diagnostic

10 criteria.

11

66. Defendants’ refusal to provide the underlying data they claim supported Dr.

12 Hayward’s conclusions deprived Plaintiff of his right to be heard and therefore violated due

13 process.

14

SIXTH CAUSE OF ACTION

15

67. 48. Plaintiff realleges and incorporates by reference paragraphs 1 through 66 of

16 this complaint as though fully set forth herein.

17

68. Defendants refuse to record and transcribe psychological interviews between FAD

18 clinicians and prisoners, even though the meetings are not confidential and such recordings or

19 transcripts would instantly resolve the frequent disputes regarding whether certain statements

20 were or were not made during these meetings. Here, a recording or transcript of Plaintiff’s

21 meeting with Dr. Hayward would reveal whether or not there was any basis for the conclusions

22 Dr. Hayward made that were completely at odds with prior reports and with everything else in

23 Plaintiff’s file. Absent such recordings or transcripts, the FAD reports are unreliable.

24

69. Defendants’ reliance on evidence lacking sufficient indicia of reliability regarding

25 Plaintiff’s suitability for parole violates his right to due process under the Fourteenth

26 Amendment.

27

28

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1

SEVENTH CAUSE OF ACTION

2

70. Plaintiff realleges and incorporates by reference paragraphs 1 through 69 of this

3 complaint as though fully set forth herein.

4

71. At least two of the risk assessment tools Defendants utilize as part of FAD’s

5 psychological evaluation process – the PCL-R and the LS/CMI – yield percentile rankings that

6 compare the subject of the evaluation to a sample of other incarcerated persons, though

7 typically the sample is comprised of inmates with mental disorders. In their reports, FAD

8 clinicians interpret these rankings as falling within either the low, moderate or high risk

9 categories. However, there are no standards used by the FAD in distinguishing between the

10 various categories. As a result, in practice, the clinicians lack any consistency in their labeling,

11 even though the resulting label plays perhaps the most significant role of any aspect of these

12 evaluations in parole consideration. Indeed, on information and belief, no prisoner labeled as

13 an overall “high” risk in one of the FAD’s reports has ever been granted parole.

14

72. The use of standardless, arbitrary and inconsistent interpretations of numerical

15 scores on these assessments renders them unreliable. Moreover, Defendants have always been

16 aware of these deficiencies, yet they use the reports anyway. Their use denied Plaintiff a fair

17 hearing in violation of his right to due process under the Fourteenth Amendment.

18

EIGHTH CAUSE OF ACTION

19

73. Plaintiff realleges and incorporates by reference paragraphs 1 through 72 of this

20 complaint as though fully set forth herein.

21

74. Defendants’ rules ostensibly provide an opportunity for prisoners to submit

22 written comments and objections to FAD psychological evaluations and anything else in the

23 file to be considered at the parole hearing. However, Defendants frequently neglect to provide

24 those written comments and objections to the panel of Commissioners and Deputy

25 Commissioners presiding over the hearings that are the subjects of those comments. This case

26 is a perfect example. After months of exchanged correspondence between Plaintiff’s counsel

27 and Defendants, the hearing panel was completely unaware of the nature and extent of the

28

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1 disputes regarding Dr. Hayward’s report. Having already prepared for the hearing and shown

2 up at San Quentin on hearing day, their unwillingness to postpone the hearing in order to fully

3 consider those disputes was clear. Indeed, even though the panel agreed with Plaintiff on some

4 of his substantive challenges to Dr. Hayward’s evaluation, the panel relied on its findings

5 anyway.

6

75. Defendants’ misconduct here exemplifies the FAD deficiencies identified by

7 California’s Office of the Inspector General, including the rubber-stamping of FAD evaluations

8 without any substantive review. Defendants’ refusal to provide any meaningful review of the

9 many assertions of error raised here denied Plaintiff a fair hearing in violation of his right to

10 due process under the Fourteenth Amendment.

11

NINTH CAUSE OF ACTION

12

76. Plaintiff realleges and incorporates by reference paragraphs 1 through 75 of this

13 complaint as though fully set forth herein.

14

77. Defendants deny Plaintiff and all other Lifers the opportunity to meet with,

15 question or investigate FAD psychologists once their reports have been written. Indeed,

16 California law even requires Defendants to make these psychologists available to testify at

17 parole consideration hearings if requested. Cal. Penal Code, § 2081.5; Cal. Govt. Code, §

18 11181. However, on information and belief, there are no instances in which a FAD

19 psychologist has testified regarding his or her report in a parole consideration hearing.

20 Defendants refused to even respond to Plaintiff’s multiple requests before and during his April

21 2010 parole hearing. These state law violations reflect a clear bias in favor of these invalid

22 tools and against full disclosure and scrutiny of their utilization.

23

78. Defendants’ denial of at least the limited right to confront and cross examine these

24 putative experts violates due process under the Fourteenth Amendment, particularly given the

25 heightened liberty interest at stake and the prominent status of these evaluations in the parole

26 consideration process.

27

28

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1

TENTH CAUSE OF ACTION

2

79. Plaintiff realleges and incorporates by reference paragraphs 1 through 78 of this

3 complaint as though fully set forth herein.

4

80. Defendants’ FAD protocol requires a new or revised evaluation if there is at least

5 one substantial error and/or three or more administrative errors in a FAD report. However,

6 Defendants routinely overlook or discount errors and omissions contained in negative

7 psychological evaluations but they emphasize errors and omissions found in otherwise positive

8 psychological evaluations in order to discredit their conclusions. Here, prior to the parole

9 hearing, Defendants summarily dismissed all nine of Plaintiff’s allegations of substantial errors

10 in Dr. Hayward’s report. During the hearing, Defendants simply overlooked the substantial

11 errors they reluctantly acknowledged.

12

81. Defendants’ practice of overlooking substantial and administrative errors in

13 otherwise negative reports while emphasizing such errors in otherwise positive reports reflects

14 a clear bias against Plaintiff and others like him, which denies the unbiased decision maker to

15 which they are entitled. This practice therefore violates due process under the Fourteenth

16 Amendment.

17

ELEVENTH CAUSE OF ACTION

18

82. Plaintiff realleges and incorporates by reference paragraphs 1 through 81 of this

19 complaint as though fully set forth herein.

20

83. California’s parole statute mandates that parole be normally granted at a

21 prisoner’s first parole consideration hearing. Cal. Pen. Code, § 3041 (parole “shall normally”

22 be granted at the first hearing). However, in practice, the Board grants parole to less than 1% of

23 prisoners appearing for their initial hearings. In the face of increasing judicial scrutiny of BPH

24 parole decisions, BPH developed the FAD protocol to fabricate a basis for continuing this

25 impermissibly low grant rate while withstanding judicial scrutiny. This demonstrable bias

26 against granting parole denies Plaintiff fair treatment of the liberty interest created by Section

27 3041 and therefore violates due process under the Fourteenth Amendment.

28

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1

TWELFTH CAUSE OF ACTION

2

84. Plaintiff realleges and incorporates by reference paragraphs 1 through 83 of this

3 complaint as though fully set forth herein.

4

85. California law creates a constitutionally protected liberty interest in parole.

5 California respects the significance of this liberty interest by providing several significant

6 protections, including: (1) the right to be provided with advance notice of the hearing (Pen.

7 Code, § 3042; Cal. Code Regs., tit. 15, § 2246); (2) the right to an opportunity to review and

8 respond to all documents being considered at the hearing (Cal. Code Regs., tit. 15, § 2247); (3)

9 the right to be present, speak, and ask and answer questions (Cal. Code Regs., tit. 15, § 2247);

10 (4) the right to not admit guilt to the commitment offense (Pen. Code, § 5011); (5) the right to

11 not discuss the circumstances of the offense during the hearing and to not be penalized for

12 invoking that right (Cal. Code Regs., tit. 15, § 2236); (6) the right to present supporting

13 documents (Cal. Code Regs., tit. 15, § 2249); (7) the right to appear before an impartial hearing

14 panel (Cal. Code Regs., tit. 15, § 2250); (8) the right to have the assistance of an interpreter, if

15 necessary; (9) the right to receive a verbatim transcript of the hearing; (10) if denied parole, the

16 right to receive a statement of the specific reasons for denying parole (Pen. Code, § 3041.5,

17 subd. (a)(4), and § 3042; Cal. Code Regs., tit. 15, § 2255); and (11) the right to be represented

18 by counsel. Pen. Code, § 3041.7.

19

86. The right to call witnesses, including adverse witnesses, is afforded to parolees

20 facing the possible revocation of their parole and return to prison, and it is afforded to prisoners

21 facing disciplinary charges that might result in the loss of good-time credits. However,

22 Defendants deny Plaintiff and others like him the right to call witnesses, including adverse

23 witnesses at their parole hearings.

24

87. Defendants’ refusal to allow Plaintiff and other Lifers to call FAD psychologists

25 or other witnesses in their parole hearings denies them due process and equal protection under

26 the Fourteenth Amendment.

27

28

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1

THIRTEENTH CAUSE OF ACTION

2

88. Plaintiff realleges and incorporates by reference paragraphs 1 through 87 of this

3 complaint as though fully set forth herein.

4

89. California law creates a constitutionally protected liberty interest in parole.

5 California respects the significance of this liberty interest by providing several significant

6 protections, including: (1) the right to be provided with advance notice of the hearing (Pen.

7 Code, § 3042; Cal. Code Regs., tit. 15, § 2246); (2) the right to an opportunity to review and

8 respond to all documents being considered at the hearing (Cal. Code Regs., tit. 15, § 2247); (3)

9 the right to be present, speak, and ask and answer questions (Cal. Code Regs., tit. 15, § 2247);

10 (4) the right to not admit guilt to the commitment offense (Pen. Code, § 5011); (5) the right to

11 not discuss the circumstances of the offense during the hearing and to not be penalized for

12 invoking that right (Cal. Code Regs., tit. 15, § 2236); (6) the right to present supporting

13 documents (Cal. Code Regs., tit. 15, § 2249); (7) the right to appear before an impartial hearing

14 panel (Cal. Code Regs., tit. 15, § 2250); (8) the right to have the assistance of an interpreter, if

15 necessary; (9) the right to receive a verbatim transcript of the hearing; (10) if denied parole, the

16 right to receive a statement of the specific reasons for denying parole (Pen. Code, § 3041.5,

17 subd. (a)(4), and § 3042; Cal. Code Regs., tit. 15, § 2255); and (11) the right to be represented

18 by counsel. Pen. Code, § 3041.7.

19

90. The right to call witnesses, including adverse witnesses, is afforded to parolees

20 facing the possible revocation of their parole and return to prison, and it is afforded to prisoners

21 facing disciplinary charges that might result in the loss of good-time credits. However,

22 Defendants deny Plaintiff and others like him the right to call witnesses, including adverse

23 witnesses at their parole hearings.

24

91. Defendants’ refusal to allow Plaintiff and other Lifers to call FAD psychologists

25 or other witnesses in their parole hearings denies them due process and equal protection under

26 the California Constitution.

27

28

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1

FOURTEENTH CAUSE OF ACTION

2

92. Plaintiff realleges and incorporates by reference paragraphs 1 through 91 of this

3 complaint as though fully set forth herein.

4

93. In their efforts to justify the development of the FAD and its use of the current

5 psychological evaluation methodology and tools, Defendants lied to the public and to the

6 California Office of Administrative Law regarding the process for establishing the FAD and

7 selecting the three risk assessment tools currently being used to predict risk.

8

94. Defendants’ intentional misconduct and reliance on invalid instruments reflects an

9 unlawful bias against granting parole and the denial of Plaintiffs right to a fair hearing, thereby

10 violating due process under the California Constitution.

11

FIFTEENTH CAUSE OF ACTION

12

95. Plaintiff realleges and incorporates by reference paragraphs 1 through 94 of this

13 complaint as though fully set forth herein.

14

96. In their efforts to justify the development of the FAD and its use of the current

15 psychological evaluation methodology and tools, Defendants violated the notice and timeliness

16 requirements of California’s Administrative Procedures Act. First, Defendants unlawfully

17 implemented their statewide psychological evaluation protocol years before providing the

18 required notice to the public or attempting to comply with the administrative procedures act.

19 Second, after California’s Office of Administrative Law declared the FAD protocol to be an

20 unauthorized “underground regulation,” Defendants lied to the public and to the Office of

21 Administrative Law, failed to address the vast majority of substantive public comments and

22 objections, and ultimately enacted regulations in a clandestine manner that appeared to violate

23 applicable timeliness and filing requirements. As a result, Defendants continue applying a

24 regulation and protocol that are invalid and unauthorized.

25

97. Defendant’s intentional misconduct conduct in promulgating Section 2240 of Title

26 15 of the California Code of Regulations violated California’s Administrative Procedures Act

27

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1 and reflects a clear bias toward using these invalid tools to produce elevated risk assessments.

2 These actions denied Plaintiff due process under the California Constitution.

3

SIXTEENTH CAUSE OF ACTION

4

98. Plaintiff realleges and incorporates by reference paragraphs 1 through 97 of this

5 complaint as though fully set forth herein.

6

99. California law requires Defendants to make FAD psychologists available to testify

7 at parole consideration hearings if requested. Cal. Penal Code, § 2081.5; Cal. Govt. Code, §

8 11181. However, on information and belief, Defendants have never required a FAD

9 psychologist to answer questions about his or her evaluation during a parole consideration

10 hearing. The consistent violation of these state law requirements reflects Defendants’ bias

11 against providing Plaintiff and those similarly situated with a fair consideration of their

12 suitability for parole.

13

100. Defendants’ failure to comply with these statutory provisions also violated

14 Plaintiff’s right to due process under the California Constitution.

15

PRAYER FOR RELIEF

16

Wherefore, Plaintiff prays for the following relief:

17

1. Declare that Defendants have denied Plaintiff’s rights under the due process and

18

equal protection clauses of the state and federal Constitutions;

19

2. Declare that the regulation governing the FAD and its psychological evaluations,

20

Cal. Code Regs., tit. 15, § 2240, is void and unenforceable;

21

3. Declare that Plaintiff has a constitutionally protected liberty interest in parole and

22

that due process requires an opportunity to confront and cross examine adverse

23

witnesses when a parole decision rests substantially on expert reports;

24

5. Declare that due process requires Plaintiff to have access to the raw data and scores

25

underlying FAD’s psychological evaluations;

26

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1

6. Issue a preliminary and permanent injunction requiring Defendants to discontinue

2

application of its rules governing the FAD, Cal. Code Regs., tit. 15, § 2240, on the

3

grounds that the regulation was fraudulently and unlawfully promulgated;

4

7. Order Defendants to remove Dr. Hayward’s report from Plaintiff’s file and prohibit

5

its consideration in conjunction with Plaintiff’s suitability for parole;

6

8. Award costs and attorneys fees incurred in this action; and

7

9. Order such other and further relief as may be just and proper.

8

Dated: November 15, 2012

9

10

11

12

Respectfully Submitted, UNCOMMON LAW
/s/ Keith Wattley KEITH WATTLEY
Attorney for Plaintiff Sam Johnson

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1

CERTIFICATE OF SERVICE

2

Case Name: Sam Johnson v. Jennifer Shaffer, et al.

3

Case No: 2:12-cv-1059 GGH P

4

I hereby certify that on November 15, 2012, I electronically filed the following

5 documents with the Clerk of the Court by using the CM/ECF system:

6

 FIRST AMENDED COMPLAINT FOR DECLARATORY AND

INUNCTIVE RELIEF

7

8

I certify that all participants in the case are registered CM/ECF users and that service

9 will be accomplished by the CM/ECF system.

10

I declare under penalty of perjury under the laws of the State of California the

11 foregoing is true and correct and that this declaration was executed on November 15, 2012,

12 at Oakland, California. 13 14

/s/ Ritika Aggarwal ______________________________ RITIKA AGGARWAL

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 Case 2:12-cv-01059-KJM-AC Document 1 Filed 04/20/12 Page 1 of 26

1 KEITH WATTLEY, SBN 203366

2

UnCommon Law 220 4th Street, Suite 103

3 Oakland, CA 94607

4

Telephone: (510) 271-0310 Facsimile: (510) 271-0101

5 Email: kwattley@theuncommonlaw.com

6 Attorney for Plaintiff 7

8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10

11

12

13 SAM JOHNSON,

14

Plaintiff,

15 v.
16

17 JENNIFER SHAFFER,

18

Defendant

19

) ) Case No.: ) ) CIVIL COMPLAINT FOR ) DECLARATORY AND ) INJUNCTIVE RELIEF ) ) ) )

20

INTRODUCTION

21 1. This is a civil rights complaint by state prisoner Sam Johnson seeking
22

23 declaratory and injunctive relief under constitutional, statutory and regulatory law against

24 officials of the California Department of Corrections and Rehabilitation (CDCR) and its
25 Board of Parole Hearings (BPH) for applying unlawful procedures to consider his
26
27 suitability for parole.

28

1
Civil Complaint for Declaratory and Injunctive Relief Johnson v. Shaffer

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1

JURISDICTION AND VENUE

2

2. Plaintiff brings this action to redress the deprivation of rights secured to him

3 by the Fourteenth Amendment to the United States Constitution. This action also arises 4 5 under Section 7 of Article 1 of the California Constitution, as well as the statutory and

6 regulatory law of the State of California.

7

3. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331

8

and 1343, and 42 U.S.C. § 1983. The United States Supreme Court has expressly held that 9

10 prisoners challenging parole consideration procedures may bring suit in federal court under

11 § 1983. Wilkinson v. Dotson, 544 U.S. 74 (2005). This Court also has supplemental

12 jurisdiction over Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.
13

14

4. Venue is proper in this judicial district under 28 U.S.C. § 1391 because the

15 defendants are employed in the County of Sacramento, which is in this judicial district.

16 THE PARTIES
17

18

A. Plaintiff

19

5. Sam Johnson (“Johnson”) is a prisoner incarcerated at San Quentin State

20 Prison. He is serving a sentence of 25 years to life, plus four years, following his 1991
21
22 conviction for first degree murder, robbery and assault. He has always maintained his

23 innocence of these crimes.

24 B. Defendants

25

26

6. Defendant JENNIFER SHAFFER (“Shaffer”) is the Executive Officer of the

27 Board of Parole Hearings (“BPH”). As the administrative head of the agency, she is

28

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1 responsible for the day-to-day operations of the BPH, including oversight and supervision

2 of its Forensic Assessment Division. She is sued in her official capacity only.

3

7. Defendant MATTHEW CATE (“CATE”) is the Secretary of the California

4

5 Department of Corrections and Rehabilitation (“CDCR”), the umbrella organization under

6 which the BPH was formed.

7

8. Defendant EDMUND G. (JERRY) BROWN, Jr. is Governor of the State of

8

California and the Chief Executive of the state government. He is sued in his official 9

10 capacity. As Governor, Mr. Brown is responsible for the appointment of Defendant

11 Secretary of the CDCR and, subject to State Senate confirmation, every Commissioner of 12
the Board of Parole Hearings (“BPH”). The Governor also appointed the Defendant 13
14 Executive Officer of the BPH. The Governor, in union with those whom he appoints, and

15 by and through those persons employed by the other defendants, controls and regulates

16 plaintiff’s custody.
17

18

9. Defendant CLIFF KUSAJ, Psy. D., (“KUSAJ”) is the head of the BPH’s

19 Forensic Assessment Division (“FAD”), through which BPH prepares psychological
20 evaluations and risk assessments for consideration by BPH Commissioners in determining
21 22 prisoners’ suitability for parole.

23

10. Defendant RICHARD HAYWARD, Ph.D., (“HAYWARD”) is a

24 psychologist employed by the FAD. Dr. Hayward authored the report utilized to deny 25 26 Plaintiff parole at his April 21, 2010, parole hearing.

27

28

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1

11. Defendant THOMAS POWERS (“POWERS”) is or was at some time

2 relevant to this complaint a Commissioner of the Board of Parole Hearings. As a

3 Commissioner, Defendant Powers is responsible for the operation and policy making of the 4 5 BPH and he presides or presided over hearings to determine whether to release prisoners on

6 parole. Defendant Powers presided over Plaintiff’s parole hearing on April 21, 2010.

7

12. Defendant AL FULBRIGHT (“FULBRIGHT”) is or was at some time

8

relevant to this complaint a Deputy Commissioner of the Board of Parole Hearings. 9

10 Defendant Fulbright presided along with Defendant Powers at Plaintiff’s parole hearing on

11 April 21, 2010. 12
13. Plaintiff is informed and believes, and on that basis alleges, that at all times 13
14 mentioned in this complaint each individual Defendant was acting under color of state law.

15

STATEMENT OF THE FACTS

16 14. The BPH is charged with determining whether and when indeterminately-
17

18 sentenced prisoners (“Lifers”) in California are suitable to be released on parole. The BPH

19 is responsible for promulgating rules, policies and regulations to effectuate the statutory
20 mandate to normally grant parole to Lifers when they first become eligible for parole. Cal.
21 22 Penal Code, § 3041. BPH is required to grant parole as long as the Lifer being considered

23 does not present an unreasonable risk to public safety. BPH and its predecessor entities

24 have established regulations setting forth the criteria to be considered in determining a 25 26 prisoner’s suitability for release on parole. Included within those regulations are

27

28

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1 procedures requiring psychological evaluations to be conducted and reported by the FAD.

2 Cal. Code Regs., tit. 15, § 2240.

3

15. BPH actually established the FAD in 2006, long before BPH attempted to

4

5 promulgate regulations that might authorize such action. Furthermore, when BPH did

6 attempt to promulgate such regulations, it did so by providing false and misleading

7 statements to the state agency responsible for certifying compliance with applicable
8 rulemaking procedures. In the period since 2006, including in connection with Plaintiff’s
9

10 parole consideration hearing in April 2010, BPH has established a pattern or practice of

11 utilizing the FAD to prejudice BPH commissioners against granting parole to eligible

12 prisoners.
13

14

16. Plaintiff’s Comprehensive Risk Assessment (“CRA”) was conducted by FAD

15 psychologist Richard Hayward, Ph. D., in February 2009. This CRA provides
16 approximately three pages of single-spaced, detailed history covering Plaintiff’s childhood
17
18 and adolescence, family history, education, development, relationships, leisure activities,

19 employment history, and post-parole plans – all of which appear void of any significant red
20 flags. Next, the clinical assessment section reviewed Plaintiff’s mental health, medical, and
21 22 substance use history – again, all of which appear void of significant problems. The

23 evaluator stated that Plaintiff was “cooperative” during the interview, that he “displayed a

24 full range of affect,” that his mood was “neutral,” and that there were “no signs of any 25 26 thought disturbances.”

27

28

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1

17. Surprisingly, Dr. Hayward diagnosed Plaintiff as having Antisocial

2 Personality Disorder – an Axis II disorder within the Diagnostic and Statistical Manual of

3 Mental Disorders (“DSM-IV-TR”). Dr. Hayward stated that the disorder was attributable 4 5 “to the committing offense, the history of community offenses and arrests and the rule

6 violations noted.” However, reviewing Section 301.70 of the DSM-IV-TR, it does not

7 appear that Plaintiff meets most of the diagnostic criteria.
8 18. Dr. Hayward also utilized the three risk assessment tools currently employed
9

10 by the FAD to project Lifers’ risk to the public. According to Dr. Hayward, Plaintiff’s

11 score on the Psychopathy Checklist-Revised (PCL-R) placed him in the “higher range of 12
the clinical construct of psychopathy when compared to other male offenders” – 13
14 specifically, higher than fifty-seven percent of those offenders assessed using this

15 instrument. Similarly, Dr. Hayward claimed that Plaintiff’s scores on the 20-item
16 Historical, Clinical, Risk Management tool (HCR-20) placed him in the “high range for
17
18 violent recidivism,” and the Level of Service/Case Management Inventory (LS/CMI)

19 placed him in the “high category,” above thirty-three percent of “the North American

20 sample of incarcerated male offenders.”
21

22

19. Plaintiff and his attorney made numerous attempts to address and correct Dr.

23 Hayward’s report because it contained numerous conclusions that were either unsupported

24 by the record or directly contrary to other statements in the report itself. Plaintiff’s counsel 25 26 wrote to the BPH more than two months before the April 2010 hearing, raising nine

27 separate substantial errors Dr. Hayward made. Among those errors were the following:

28

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1

a. Dr. Hayward’s report claimed a “substantial history of impaired impulse

2

control,” “impaired behavioral control,” and “negative attitudes.” However,

3

Plaintiff had no history of violence, no juvenile record and only three

4

5

misdemeanor convictions prior to the commitment offense. He maintained

6

steady employment (including strong leadership positions) both prior to and

7

throughout his nineteen years of incarceration. His sole rule violation report

8

in prison was six years prior to the hearing and was categorized as only a 9

10

Division “F” offense.

11

b. Although Dr. Hayward acknowledged that Plaintiff has no mental illness, has

12 never received mental health treatment in prison and has no history of any
13

14

problems with drugs or alcohol, he nevertheless concluded there was

15

evidence of “a lack of responsiveness to treatment” that increased Plaintiff’s

16 risk to the public if released.
17

18

c. Dr. Hayward claimed that Plaintiff “had significant problems with previous

19

violence, psychopathy (sic) and Antisocial Personality Disorder” prior to the

20 commitment offense, none of which is true.
21

22

d. Dr. Hayward relied on the following factors in determining that Plaintiff

23

scored in the higher range on the PCLR: “Superficial Charm, Pathological

24

Lying, Shallow Affect, Poor Behavioral Controls, Impulsivity,

25

26

Irresponsibility.” However, there was no evidence anywhere in the

27

28

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1

assessment supporting a finding that Plaintiff is a pathological liar, nor is

2

there evidence that he has poor behavior control.

3

e. In discussing the Clinical, or more dynamic, aspects of the HCR-20, Dr.

4

5

Hayward generically asserted that there was evidence of “a lack of insight,

6

negative attitudes, impulsivity and lack of responsiveness to treatment.” Yet,

7

nowhere did Dr. Hayward explain any evidentiary basis for this substantial

8

finding. 9

10

f. The assessment stated that Plaintiff’s parole plans indicated problems in the

11

area of personal support and compliance with remediation attempts. Yet, Dr.

12 Hayward found “generally feasible” Plaintiff’s plans to live with his wife and
13

14

children and to seek a job in the restaurant industry where he was

15

successfully employed for roughly 15 years prior to his incarceration. These

16 contradictory statements were never reconciled.
17

18

g. Factors that purportedly increased Plaintiff’s risk of recidivism were a

19

“reduced level of pro-social family support, a reduced level of constructive

20 leisure activities, associations with criminally oriented companions, a pro-
21

22

criminal orientation and an antisocial pattern.” However, these statements

23

directly contradict the findings elsewhere in the report that Plaintiff maintains

24

a positive relationship with his two surviving family members and his wife’s

25

26

family, is married to the mother of two of his children, has completed his

27

Associate’s Degree in prison and is chair of the Men’s Advisory Council.

28

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1

h. There were multiple instances in the assessment where Dr. Hayward relied on

2

a claimed lack of remorse and/or insight into the commitment offense as a

3

factor demonstrating an increased risk to public safety if released. These

4

5

statements were based on the fact that Plaintiff has always steadfastly

6

maintained that he is innocent of this crime. However, Defendants are

7

prohibited from finding unsuitability based on a prisoner’s refusal to admit

8

guilt (see Penal Code section 5011 and Section 2236 of Title 15 of the 9

10

California Code of Regulations). More importantly, Plaintiff has expressed

11

deep and sincere remorse for his role in the events that lead up to the

12 commitment offense.
13

14

i. The assessment contains no legitimate explanation or information regarding

15

Dr. Hayward’s methodology in evaluating Plaintiff’s risk to the public if

16 paroled. Dr. Hayward states: “Ultimately, whether an inmate will engage in
17

18

future violence is a function of a variety of factors that include history,

19

personal disposition, and situational variables. The evaluator has taken these

20 factors into consideration in determining how much weight to allot to each of
21

22

the measures and in formulating an overall estimate of risk.” Unfortunately,

23

from this the Board was unable to determine which of the many factors relied

24

on by Dr. Hayward – many of which were invalid or unsupported by the facts

25

26

– were used to determine Plaintiff’s level of risk. In light of the fact that the

27

findings and assessment in this report are so far at odds with the prior

28

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1

psychological report for Plaintiff, the findings in this report required

2

considerable explanation.

3

20. The FAD’s psychological protocol required the Board to conduct a new

4

5 evaluation if Dr. Hayward’s report contained even one substantial error. Yet, the BPH

6 responded to Plaintiff in March 2010, refusing to remove Dr. Hayward’s report and finding

7 no administrative or substantive errors in the report even though Plaintiff identified nine
8 separate substantial errors. Ironically, the hearing panel actually agreed with Plaintiff that
9

10 Dr. Hayward’s report contained some substantial errors, yet the panel still relied on the

11 report to deny Plaintiff parole. 12
21. Since BPH now requires the FAD to conduct a psychological evaluation 13
14 and/or risk assessment prior to every single parole consideration hearing, all Life prisoners

15 are directly impacted by these unlawful patterns and practices once they are eligible for

16 parole consideration.
17

18

22. Defendants failed to alert the April 2010 hearing panel to the controversy

19 regarding Dr. Hayward’s psychological evaluation despite the exchange of correspondence
20 during the two months leading up to the scheduled hearing. In fact, presiding
21 22 commissioner Powers had never even seen Plaintiff’s February 19, 2010 letter highlighting

23 the nine substantial errors in the evaluation until Plaintiff’s counsel provided him with a

24 copy of it after the hearing had already begun.

25

26

23. Despite the provisions in California Penal Code Section 2081.5 and

27 California Government Code § 11181, subdivisions (e) and (f), which direct Defendants to

28

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1 make psychological evaluators available for questioning in parole consideration hearings,

2 Plaintiff is informed and believes that Defendants never grant requests that such evaluators

3 appear and testify in parole consideration hearings. Defendants failed to even respond to 4 5 Plaintiff’s request prior to and during his April 2010 hearing.

6

24. Defendants denied Plaintiff’s counsel’s request for the raw data and risk

7 assessment scores that purportedly supported Dr. Hayward’s findings.
8 25. Defendant’s April 2010 parole decision became final on August 19, 2010.
9

10 Plaintiff is due to have his subsequent parole consideration hearing no later than April 21,

11 2013. 12
26. As long as the challenged report remains in Plaintiff’s prison file, Defendants 13
14 will continue to rely on it at Plaintiff’s next parole consideration hearing and all future

15 hearings unless and until he is released on parole, regardless of whether subsequent risk

16 assessments are conducted and reported.
17

18

27. Defendants refuse to record and transcribe meetings between FAD

19 psychologists and the prisoners they evaluate, even though such meetings are not
20 confidential and such recordings and transcripts would easily resolve the majority of
21 22 disputes raised regarding statements recorded in the written reports.

23

28. Defendants’ policies, practices, conduct, and acts alleged herein have resulted

24 and will continue to result in irreparable injury to Plaintiff, including but not limited to 25 26 violations of his constitutional rights. Plaintiff has no plain, adequate or complete remedy at

27

28

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1 law to address the wrongs described herein. Defendants will continue to conduct

2 unconstitutional parole consideration hearings unless enjoined by this Court.

3

29. An actual controversy exists between Plaintiff and Defendants in that Plaintiff

4

5 contends that the policies, practices and conduct of Defendants alleged herein are unlawful

6 and unconstitutional, whereas Plaintiff is informed and believes that Defendants contend

7 that said policies, practices and conduct are lawful and constitutional. Plaintiff seeks a
8 declaration of rights with respect to this controversy.
9

10

30. Injunctive relief including but not limited to an order enjoining Defendants’

11 policies, practices, regulations, actions and omissions such as are alleged herein, and 12
requiring the repeal or reformation of Defendants’ policies, practices, regulations, actions 13
14 or omissions so as to prevent their impermissible effect, is therefore appropriate and

15 necessary to avoid irreparable harm to Plaintiff and to effectuate the purpose of the United
16 States and California Constitutions and the other statutes and laws referenced herein as the
17
18 subject of Plaintiffs’ claims for relief.

19

FIRST CAUSE OF ACTION

20 31. Plaintiff realleges and incorporates by reference paragraphs 1 through 30 of
21
22 this complaint as though fully set forth herein.

23

32. California’s parole scheme creates for Plaintiff a constitutionally protected

24 liberty interest in being released on parole.

25

26

33. Defendants are utilizing invalid tools and inadequate or improper training to

27 produce impermissibly elevated assessments for Plaintiff and others like him. Defendants

28

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1 utilize the Psychopathy Checklist – Revised (PCL-R), the 20-item Historical, Clinical, Risk

2 Management Test (HCR-20) and the Level of Service, Case Management Inventory

3 (LS/CMI). However, none of these risk-assessment tools have been found to be valid 4 5 predictors of future violence for a population akin to California’s Lifers. Furthermore,

6 most psychological and criminal justice experts – including the majority of the expert panel

7 Defendants convened to consider the question, and including the author of one of the
8 principal tools himself – agree that these instruments are not valid predictors of future
9

10 violence for this population. Nevertheless, Defendants utilized these tools in Plaintiff’s

11 parole hearing, as they have in most hearings conducted since 2006 and nearly all hearings

12 held since January 2009.
13

14

34. Reliance on evidence lacking sufficient indicia of reliability to establish

15 Plaintiff’s risk to public safety violates his right to due process under the Fourteenth

16 Amendment.
17

18

SECOND CAUSE OF ACTION

19

35. Plaintiff realleges and incorporates by reference paragraphs 1 through 34 of

20 this complaint as though fully set forth herein.
21

22

36. In their efforts to justify the development of the FAD and its use of the

23 current psychological evaluation methodology and tools, Defendants made numerous false

24 and misleading statements to the public and to the California Office of Administrative Law 25 26 regarding the process for establishing the FAD and selecting the three risk assessment tools

27 currently being utilized by the FAD to predict risk. For example, they falsely claimed a

28

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1 consensus among an expert panel Defendants convened to consider the use of various risk

2 assessment tools, and they falsely cited a court mandate to establish the FAD and select the

3 invalid tools.

4

5

37. Defendants’ misconduct and reliance on invalid instruments violated

6 Plaintiff’s right to due process under the Fourteenth Amendment.

7

THIRD CAUSE OF ACTION

8

38. Plaintiff realleges and incorporates by reference paragraphs 1 through 37 of 9

10 this complaint as though fully set forth herein.

11

39. Any respectable process through which written reports are considered in a

12 manner that impacts a person’s liberty interest must also provide a mechanism for
13

14 correcting errors in those reports so as not to unjustly harm the subject of the report. Here,

15 the protocol and subsequent regulation Defendants developed establishing the FAD and its
16 methodology require the removal or correction of FAD psychological reports when they
17
18 contain at least one substantial error or at least three administrative errors. However,

19 Defendants refused to remove or in any way correct Dr. Hayward’s report even though it

20 contained nine substantial errors – some of which Defendants even acknowledged.
21

22

40. Defendants’ reliance on evidence lacking sufficient indicia of reliability to

23 establish Plaintiff’s risk to public safety violates his right to due process under the

24 Fourteenth Amendment. 25

26

27

28

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1

FOURTH CAUSE OF ACTION

2

41. Plaintiff realleges and incorporates by reference paragraphs 1 through 40 of

3 this complaint as though fully set forth herein.

4

5

42. At a minimum, California Lifers have a constitutional right to notice of the

6 evidence being used to consider their suitability for parole. While Defendants provided

7 Plaintiff with Dr. Hayward’s report, they refused his request for the raw data and
8 underlying scores Defendants claim supported the statements in the report. They also did
9

10 not provide Plaintiff or his counsel with any recording, transcript or other notes from his

11 interview with Dr. Hayward. Dr. Hayward’s report may only be considered by Defendants 12
to evaluate Plaintiff’s suitability for parole if the report’s contents are both relevant and 13
14 reliable. However, Plaintiff has absolutely no way to evaluate the relevance and reliability

15 of Dr. Hayward’s conclusions without access to the raw data and underlying scores from
16 his evaluation. Indeed, this raw data is the actual evidence that either supports or does not
17
18 support the ultimate conclusion of whether Plaintiff presents a current risk to the public.

19

43. Defendants’ refusal to provide the underlying data they claim supported Dr.

20 Hayward’s conclusions deprived Plaintiff of due process.
21

22

FIFTH CAUSE OF ACTION

23

44. Plaintiff realleges and incorporates by reference paragraphs 1 through 43 of

24 this complaint as though fully set forth herein.

25

26

45. At a minimum, California Lifers have a constitutional right to have an

27 opportunity to be heard during their parole consideration hearings. Defendants’ refusal to

28

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1 provide Plaintiff with the raw data underlying Dr. Hayward’s report deprived him of the

2 knowledge of all the information to which he needed to respond to protect his rights. For

3 example, without the basis for Dr. Hayward’s conclusions, Plaintiff was unable to address 4 5 the new diagnosis of Antisocial Personality Disorder or the claims of impulsivity or failure

6 to benefit from treatment. Indeed, none of these claims had ever before been made in

7 Plaintiff’s life, so their basis at this time remains a complete mystery.
8 46. Defendants’ unfounded diagnosis of Antisocial Personality Disorder here is
9

10 consistent with its practice of over-diagnosing the alleged disorder using these risk

11 assessment tools, even though a large number of prisoners, like Plaintiff, do not meet the

12 diagnostic criteria.
13

14

47. Defendants’ refusal to provide the underlying data they claim supported Dr.

15 Hayward’s conclusions deprived Plaintiff of his right to be heard and therefore violated due

16 process.
17

18

SIXTH CAUSE OF ACTION

19

48. Plaintiff realleges and incorporates by reference paragraphs 1 through 47 of

20 this complaint as though fully set forth herein.
21

22

49. Defendants refuse to record and transcribe psychological interviews between

23 FAD clinicians and prisoners, even though the meetings are not confidential and such

24 recordings or transcripts would instantly resolve the frequent disputes regarding whether 25 26 certain statements were or were not made during these meetings. Here, a recording or

27 transcript of Plaintiff’s meeting with Dr. Hayward would reveal whether or not there was

28

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1 any basis for the conclusions Dr. Hayward made that were completely at odds with prior

2 reports and with everything else in Plaintiff’s file. Absent such recordings or transcripts,

3 the FAD reports are unreliable.

4

5

50. Defendants’ reliance on evidence lacking sufficient indicia of reliability to

6 establish Plaintiff’s risk to public safety violates his right to due process.

7

SEVENTH CAUSE OF ACTION

8

51. Plaintiff realleges and incorporates by reference paragraphs 1 through 50 of 9

10 this complaint as though fully set forth herein.

11

52. At least two of the risk assessment tools Defendants utilize as part of FAD’s

12 psychological evaluation process – the PCL-R and the LS/CMI – yield percentile rankings
13

14 that compare the subject of the evaluation to a sample of other incarcerated persons, though

15 typically the sample is comprised of inmates with mental disorders. In their reports, FAD
16 clinicians interpret these rankings as falling within either the low, moderate or high risk
17
18 categories, although sometimes the categories are combined to produce low/moderate,

19 moderate/high or some similar combination. However, there are no standards used by the
20 FAD in distinguishing between the various categories. As a result, in practice, the clinicians
21 22 lack any consistency in their labeling, even though the resulting label plays perhaps the

23 most significant role of any aspect of these evaluations in parole consideration. Indeed, on

24 information and belief, no prisoner labeled as a “high” risk on one of the FAD’s reports has 25 26 ever been granted parole.

27

28

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1

53. The use of standardless, arbitrary and inconsistent interpretations of

2 numerical scores on these assessments renders them unreliable. Their use violates

3 Plaintiff’s right to due process.

4

5

EIGHTH CAUSE OF ACTION

6

54. Plaintiff realleges and incorporates by reference paragraphs 1 through 53 of

7 this complaint as though fully set forth herein.
8 55. Defendants’ rules ostensibly provide an opportunity for prisoners to submit
9

10 written comments and objections to FAD psychological evaluations and anything else in

11 the file to be considered at the parole hearing. However, Defendants frequently neglect to 12
provide those written comments and objections to the panel of Commissioners and Deputy 13
14 Commissioners presiding over the hearings that are the subjects of those comments. This

15 case is a perfect example. After months of exchanged correspondence between Plaintiff’s
16 counsel and Defendants, the hearing panel was completely unaware of the nature and extent
17
18 of the disputes regarding Dr. Hayward’s report. Having already prepared for the hearing

19 and shown up at San Quentin on hearing day, their prejudice against postponing the hearing
20 in order to fully consider those disputes was clear. Indeed, even though the panel agreed
21 22 with Plaintiff on some of his substantive challenges to Dr. Hayward’s evaluation, the panel

23 relied on its findings anyway.

24

56. Defendants’ failure to provide a meaningful review – or any review at all by

25

26 the hearing commissioners – of the written comments and objections Defendants’ rules

27 ostensibly invite violated Plaintiff’s right to due process.

28

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1

NINTH CAUSE OF ACTION

2

57. Plaintiff realleges and incorporates by reference paragraphs 1 through 56 of

3 this complaint as though fully set forth herein.

4

5

58. Defendants deny Plaintiff and all other Lifers the opportunity to meet with,

6 question or investigate FAD psychologists once their reports have been written. Indeed,

7 California law even requires Defendants to make these psychologists available to testify at
8 parole consideration hearings if requested. Cal. Penal Code, § 2081.5; Cal. Govt. Code, §
9

10 11181. However, on information and belief, there are no instances in which a FAD

11 psychologist has testified regarding his or her report in a parole consideration hearing. 12
Defendants refused to even respond to Plaintiff’s multiple requests before and during his 13
14 April 2010 parole hearing.

15

59. Defendants’ denial of at least the limited right to confront and cross examine

16 these putative experts violates due process, particularly given the heightened liberty interest
17

18 at stake and the prominent status of these evaluations in the parole consideration process.

19

TENTH CAUSE OF ACTION

20 60. Plaintiff realleges and incorporates by reference paragraphs 1 through 59 of
21
22 this complaint as though fully set forth herein.

23

61. Defendants’ psychological evaluation protocol and regulation provide that a

24 new psychological evaluation may be ordered if there is at least one substantial error and/or 25 26 three or more administrative errors in a FAD report. However, Defendants routinely

27 overlook or discount errors and omissions contained in negative psychological evaluations

28

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1 but they emphasize errors and omissions found in otherwise positive psychological

2 evaluations in order to discredit their conclusions. Here, prior to the parole hearing,

3 Defendants summarily dismissed all nine of Plaintiff’s allegations of substantial errors in 4 5 Dr. Hayward’s report. During the hearing, Defendants simply overlooked the substantial

6 errors they reluctantly acknowledged.

7

62. Defendants’ practice of overlooking substantial and administrative errors in

8

otherwise negative reports while emphasizing such errors in otherwise positive reports 9

10 deprives Plaintiff and others like him of the unbiased decision maker to which they are

11 entitled. This practice therefore violates due process under the Fourteenth Amendment.

12 ELEVENTH CAUSE OF ACTION
13

14

63. Plaintiff realleges and incorporates by reference paragraphs 1 through 62 of

15 this complaint as though fully set forth herein.
16 64. California’s parole statute mandates that parole be normally granted at a
17
18 prisoner’s first parole consideration hearing. Cal. Pen. Code, § 3041 (parole “shall

19 normally” be granted at the first hearing). However, in practice, the Board grants parole to
20 less than 1% of prisoners appearing for their initial hearings. This bias against granting
21 22 parole cannot be reconciled with the statutory mandate and therefore violates due process

23 under the Fourteenth Amendment.

24 TWELFTH CAUSE OF ACTION

25

26

65. Plaintiff realleges and incorporates by reference paragraphs 1 through 64 of

27 this complaint as though fully set forth herein.

28

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1

66. California law creates a constitutionally protected liberty interest in parole.

2 California respects the significance of this liberty interest by providing several significant

3 protections, including: (1) the right to be provided with advance notice of the hearing (Pen. 4 5 Code, § 3042; Cal. Code Regs., tit. 15, § 2246); (2) the right to an opportunity to review

6 and respond to all documents being considered at the hearing (Cal. Code Regs., tit. 15, §

7 2247); (3) the right to be present, speak, and ask and answer questions (Cal. Code Regs., tit.
8 15, § 2247); (4) the right to not admit guilt to the commitment offense (Pen. Code, § 5011);
9

10 (5) the right to not discuss the circumstances of the offense during the hearing and to not be

11 penalized for invoking that right (Cal. Code Regs., tit. 15, § 2236); (6) the right to present 12
supporting documents (Cal. Code Regs., tit. 15, § 2249); (7) the right to appear before an 13
14 impartial hearing panel (Cal. Code Regs., tit. 15, § 2250); (8) the right to have the

15 assistance of an interpreter, if necessary; (9) the right to receive a verbatim transcript of the
16 hearing; (10) if denied parole, the right to receive a statement of the specific reasons for
17
18 denying parole (Pen. Code, § 3041.5, subd. (a)(4), and § 3042; Cal. Code Regs., tit. 15, §

19 2255); and (11) the right to be represented by counsel. Pen. Code, § 3041.7.
20 67. The right to call witnesses, even adverse witnesses, is afforded to parolees
21 22 facing the possible revocation of their parole and return to prison, and it is afforded to

23 prisoners facing disciplinary charges that might result in the loss of good-time credits.

24 However, Defendants deny Plaintiff and others like him the right to call witnesses, 25 26 including adverse witnesses at their parole hearings.

27

28

21
Civil Complaint for Declaratory and Injunctive Relief Johnson v. Shaffer

Case 2:12-cv-01059-KJM-AC Document 1 Filed 04/20/12 Page 22 of 26

1

68. Defendants’ refusal to allow Plaintiff and other Lifers to call FAD

2 psychologists or other witnesses in their parole hearings denies them equal protection under

3 the Fourteenth Amendment.

4

5

THIRTEENTH CAUSE OF ACTION

6

69. Plaintiff realleges and incorporates by reference paragraphs 1 through 68 of

7 this complaint as though fully set forth herein.
8 70. California law creates a constitutionally protected liberty interest in parole.
9

10 California respects the significance of this liberty interest by providing several significant

11 protections, including: (1) the right to be provided with advance notice of the hearing (Pen. 12
Code, § 3042; Cal. Code Regs., tit. 15, § 2246); (2) the right to an opportunity to review 13
14 and respond to all documents being considered at the hearing (Cal. Code Regs., tit. 15, §

15 2247); (3) the right to be present, speak, and ask and answer questions (Cal. Code Regs., tit.
16 15, § 2247); (4) the right to not admit guilt to the commitment offense (Pen. Code, § 5011);
17
18 (5) the right to not discuss the circumstances of the offense during the hearing and to not be

19 penalized for invoking that right (Cal. Code Regs., tit. 15, § 2236); (6) the right to present
20 supporting documents (Cal. Code Regs., tit. 15, § 2249); (7) the right to appear before an
21 22 impartial hearing panel (Cal. Code Regs., tit. 15, § 2250); (8) the right to have the

23 assistance of an interpreter, if necessary; (9) the right to receive a verbatim transcript of the

24 hearing; (10) if denied parole, the right to receive a statement of the specific reasons for 25 26 denying parole (Pen. Code, § 3041.5, subd. (a)(4), and § 3042; Cal. Code Regs., tit. 15, §

27 2255); and (11) the right to be represented by counsel. Pen. Code, § 3041.7.

28

22
Civil Complaint for Declaratory and Injunctive Relief Johnson v. Shaffer

Case 2:12-cv-01059-KJM-AC Document 1 Filed 04/20/12 Page 23 of 26

1

71. The right to call witnesses, even adverse witnesses, is afforded to parolees

2 facing the possible revocation of their parole and return to prison, and it is afforded to

3 prisoners facing disciplinary charges that might result in the loss of good-time credits. 4 5 However, Defendants deny Plaintiff and others like him the right to call witnesses,

6 including adverse witnesses at their parole hearings.

7

72. Defendants’ refusal to allow Plaintiff and other Lifers to call FAD

8

psychologists or other witnesses in their parole hearings denies them equal protection under 9

10 the California Constitution.

11

FOURTEENTH CAUSE OF ACTION

12 73. Plaintiff realleges and incorporates by reference paragraphs 1 through 72 of
13

14 this complaint as though fully set forth herein.

15

74. In their efforts to justify the development of the FAD and its use of the

16 current psychological evaluation methodology and tools, Defendants made numerous false
17

18 and misleading statements to the public and to the California Office of Administrative Law

19 regarding the process for establishing the FAD and selecting the three risk assessment tools
20 currently being utilized by the FAD to predict risk. For example, they falsely claimed a
21 22 consensus among an expert panel Defendants convened to consider the use of various risk

23 assessment tools, and they falsely cited a court mandate to establish the FAD and select the

24 invalid tools.

25

26

75. Defendants’ misconduct and reliance on invalid instruments violated

27 Plaintiff’s right to due process under the California Constitution.

28

23
Civil Complaint for Declaratory and Injunctive Relief Johnson v. Shaffer

Case 2:12-cv-01059-KJM-AC Document 1 Filed 04/20/12 Page 24 of 26

1

FIFTEENTH CAUSE OF ACTION

2

76. Plaintiff realleges and incorporates by reference paragraphs 1 through 75 of

3 this complaint as though fully set forth herein.

4

5

77. In their efforts to justify the development of the FAD and its use of the

6 current psychological evaluation methodology and tools, Defendants failed to comply with

7 the notice and timeliness requirements of California’s Administrative Procedures Act.
8 First, Defendants unlawfully implemented their statewide psychological evaluation
9

10 protocol years before providing the required notice to the public or attempting to comply

11 with the administrative procedures act. After California’s Office of Administrative Law 12
declared the protocol to be an unauthorized “underground regulation,” Defendants provided 13
14 false and misleading statements to the public and to the Office of Administrative Law,

15 failed to address the vast majority of substantive public comments and objections, and
16 ultimately enacted regulations in a clandestine manner that appeared to violate applicable
17
18 timeliness and filing requirements. As a result, Defendants continue applying a regulation

19 and protocol that are invalid and unauthorized.
20 78. Defendant’s conduct in promulgating Section 2240 of Title 15 of the
21 22 California Code of Regulations violated California’s Administrative Procedures Act and

23 denied Plaintiff due process under the California Constitution.

24 SIXTEENTH CAUSE OF ACTION

25

26

79. Plaintiff realleges and incorporates by reference paragraphs 1 through 78 of

27 this complaint as though fully set forth herein.

28

24
Civil Complaint for Declaratory and Injunctive Relief Johnson v. Shaffer

Case 2:12-cv-01059-KJM-AC Document 1 Filed 04/20/12 Page 25 of 26

1

80. California law requires Defendants to make FAD psychologists available to

2 testify at parole consideration hearings if requested. Cal. Penal Code, § 2081.5; Cal. Govt.

3 Code, § 11181. However, on information and belief, Defendants have never or almost 4 5 never required a FAD psychologist to answer questions about his or her evaluation during a

6 parole consideration hearing.

7

81. Defendants’ failure to comply with these statutory provisions also violated

8

Plaintiff’s right to due process under the California Constitution. 9

10

PRAYER FOR RELIEF

11

Wherefore, Plaintiff prays for the following relief:

12 1. Declare that Defendants have denied Plaintiff’s rights under the due process and
13

14

equal protection clauses of the state and federal Constitutions;

15

2. Declare that the regulation governing the FAD and its psychological evaluations,

16 Cal. Code Regs., tit. 15, § 2240, is void and unenforceable;
17

18

3. Declare that Plaintiff has a constitutionally protected liberty interest in parole;

19 4. Declare that due process provides at least a limited right to confront and cross

20 examine adverse witnesses when a parole decision rests substantially on expert
21

22

reports;

23 5. Declare that due process requires Plaintiff to have access to the raw data and scores

24

underlying FAD’s psychological evaluations;

25

26

27

28

25
Civil Complaint for Declaratory and Injunctive Relief Johnson v. Shaffer

Case 2:12-cv-01059-KJM-AC Document 1 Filed 04/20/12 Page 26 of 26

1

6. Issue a preliminary and permanent injunction requiring Defendants to discontinue

2

application of its rules governing the FAD, Cal. Code Regs., tit. 15, § 2240, on the

3

grounds that the regulation was fraudulently and unlawfully promulgated;

4

5

7. Order Defendants to remove Dr. Hayward’s report from Plaintiff’s file and prohibit

6

its consideration in conjunction with Plaintiff’s suitability for parole;

7

8. Award costs and attorneys fees incurred in this action; and

8

9. Order such other and further relief as may be just and proper. 9

10

Dated: April 20, 2012

11

Respectfully Submitted,

12 UNCOMMON LAW
13

14

/s/ Keith Wattley

By: ___________________

15

Keith Wattley

16

Attorney for Plaintiff

17

18

19

20

21

22

23

24

25

26

27

28

26
Civil Complaint for Declaratory and Injunctive Relief Johnson v. Shaffer

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 SAM JOHNSON,

No. 2:12-cv-1059 KJM AC

12

Plaintiff,

13

v.

ORDER

14 JENNIFER SHAFFER, et al.,

15

Defendants.

16

17

Plaintiff has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The

18 matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B)

19 and Local Rule 302.

20

On November 1, 2013, the magistrate judge filed findings and recommendations, which

21 were served on all parties and which contained notice to all parties that any objections to the

22 findings and recommendations were to be filed within fourteen days. Defendants have filed

23 objections to the findings and recommendations to which plaintiff has filed a reply.

24

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

25 court has conducted a de novo review of this case. Having carefully reviewed the file, the court

26 finds the findings and recommendations to be supported by the record and by the proper analysis.

27 Given the nature of the action as a class action, with plaintiff represented by counsel, the court

28 ///// 1

1 withdraws the reference to the magistrate judge, and sets the matter for a status conference. See

2 L.R. 101, 240(c), 302.

3

Accordingly, IT IS HEREBY ORDERED that:

4

1. The findings and recommendations filed November 1, 2013 are adopted in full.

5

2. Plaintiff’s motion for class certification (ECF No. 29) is granted.

6

3. Defendant’s motion for summary judgment (ECF No. 30) is granted in part and

7 denied in part as follows:

8

a. Granted as to plaintiff’s equal protection and pendent state law claims;

9

b. Denied as to plaintiff’s due process claims insofar as defendants rely on

10 Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859 (2011); and

11

c. Denied in all other respects without prejudice to renewal following close of

12 discovery.

13

4. A Status (Pretrial Scheduling) Conference is set for May 1, 2014 at 2:30 P.M.

14 before the undersigned in Courtroom Three. All parties to the action shall appear in person at the

15 Status Conference through lead counsel or on their own behalf if acting without counsel.

16 Requests for a continuance of the status conference are not favored and will not be granted in the

17 absence of a true emergency and, in any event, will not be entertained unless made in writing at

18 least FIVE (5) DAYS prior to the scheduled conference.

19

5. At least twenty−one (21) calendar days before the Status Conference is held,

20 parties shall confer as contemplated by Federal Rule of Civil Procedure 26 and Local Rule

21 240(b). The parties shall submit, at least seven (7) days prior to the Status Conference, a Joint

22 Status Report that includes the Rule 26(f) discovery plan, with all named parties participating in

23 the preparation and completion of the report. The status report shall address the following

24 matters:

25

(a) a brief summary of the claims and legal theories under which recovery is

26

sought or liability is denied;

27

(b) status of service upon all defendants and cross−defendants;

28

(c) possible joinder of additional parties;

2

1

(d) contemplated amendments to the pleadings, including to simplify or clarify the

2

issues and eliminate previous claims and defenses;

3

(e) the statutory bases for jurisdiction and venue;

4

(f) anticipated discovery and the scheduling of discovery, including:

5

(1) what changes, if any, should be made in the timing, form, or

6

requirement for disclosures under Rule 26(a), including a statement as to when

7

disclosures under Rule 26(a)(1) were made or will be made, and whether further

8

discovery conferences should be held;

9

(2) the subjects on which discovery may be needed, when discovery should

10

be completed, and whether discovery should be conducted in phases;

11

(3) what changes, if any, should be made in the limitations on discovery 27

12

imposed under the Civil Rules and what other limitations, if any, should be

13

imposed;

14

(4) the timing of the disclosure of expert witnesses and information

15

required by Rule 26(a)(2); and

16

(5) proposed dates for discovery cut−off.

17

(g) contemplated dispositive or other motions and a proposed date by which all

18

non−discovery motions shall be heard;

19

(h) methods that can be used from the outset to avoid unnecessary proof and

20

cumulative evidence, and anticipated limitations or restrictions on the use of testimony

21

under Federal Rule of Evidence 702;

22

(i) a proposed date for final pretrial conference;

23

(j) a proposed date for trial, estimated number of days of trial, and whether any

24

party has demanded a jury;

25

(k) appropriateness of special procedures such as reference to a special master or

26

agreement to try the matter before the assigned magistrate judge pursuant to 28 U.S.C.

27

636(c);

28 ///// 3

1

(l) proposed modification of standard pretrial procedures because of the simplicity

2

or complexity of the case;

3

(m) whether the case is related to any other case pending in this district, including

4

the bankruptcy court of this district;

5

(n) optimal timing and method for settlement discussions, including whether a

6

court−convened settlement conference should be scheduled, whether in the case of a jury

7

trial the parties will stipulate to the trial judge acting as a settlement judge, and the parties'

8

positions with respect to Voluntary Dispute Resolution (VDRP) as required by Local Rule

9

271(d); and

10

(o) any other matters that may be conducive to the just and expeditious 19

11

disposition of the case.

12

6. The court, upon review of the joint status report and following the status

13 conference, will issue a scheduling order governing the future course of the litigation. Counsel

14 are directed to read that order carefully once it is issued. Requests to modify or vacate any date

15 set forth in the order will not be favored and will not be granted absent good cause.

16

7. In the extraordinary event the parties are not able to file a joint status report, each

17 party must file an individual status report and attach a declaration setting forth, in detail, the

18 extraordinary circumstances that prevented the parties from filing a joint status report.

19 DATED: March 31, 2014.

20

21

22

UNITED STATES DISTRICT JUDGE

23

24

25

26

27

28 4

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11

SAM JOHNSON, on behalf of himself and all others similarly situated,

No. 2:12-cv-01059 KJM AC P

12

Plaintiff,

13

v.

ORDER

14 JENNIFER SHAFFER, et al.,

15

Defendants.

16 Defendants request amendment of this court’s order filed November 24, 2014, concerning
17 the deadline for payment of plaintiffs’ attorneys’ fees and costs in this action. Good cause
18 appearing, IT IS HEREBY ORDERED that:
19 1. Defendants’ request, ECF No. 133, is granted.
20 2. The last sentence of this court’s order filed November 24, 2014, see ECF No. 90 at 3,
21 is amended to read as follows:
22

23

Defendants shall remit payment to Plaintiffs’ counsel in the amount of $119,796.05, within thirty (30) days after the Court grants final

24

approval of the parties’ Amended Stipulated Settlement, subject to interest thereafter as provided in 28 U.S.C. § 1961.

25

26 DATED: November 30, 2015 27

28

 
 Case 2:12-cv-01059-KJM-AC Document 83 Filed 10/02/15 Page 1 of 8

1 KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California
2 JENNIFER A. NEILL, State Bar No. 184697 Senior Assistant Attorney General
3 JESSICA N. BLONIEN, State Bar No. 189137 Supervising Deputy Attorney General
4 1300 I Street, Suite 125 P.O. Box 944255
5 Sacramento, CA 94244-2550 Telephone: (916) 327-3893
6 Fax: (916) 322-8288 E-mail: Jessica.Blonien@doj .ca.gov
7 Attorneys for Defendants Shaffer, Beard, Brown, Kusaj, Hayward, Powers, and Fulbright
8 KEITH WATTLEY, State Bar No. 203366
9 UnCommon Law 220 4111 Street, Suite 103
10 Oakland, CA 94607 Telephone: (510) 271-0310
11 Facsimile: (510) 271-0101 Email: Kwattley@uncommonlaw.org
12 Attorney for Sam Johnson and the Plaintiff Class
13

14 IN THE UNITED STATES DISTRICT COURT
15 FOR THE EASTERN DISTRICT OF CALIFORNIA
16 SACRAMENTO DIVISION
17

18

19 SAM JOHNSON,

2:12-cv-01059-KJM

20

Plaintiff, AMENDED STIPULATED

SETTLEMENT

21

v.

Courtroom: 3

22 JENNIFER SHAFFER, et al.,

Judge:

The Hon. Kimberly Mueller

Action Filed: April20, 2012

23

Defendants.

24

25

26

The parties enter into this Settlement to address Plaintiffs' claims regarding the Board of

27 Parole Hearings' (Board) forensic assessment protocols and to settle this case.

28 1
Am. Stip. Settlement (2:12-cv-01059-KJM)

Case 2:12-cv-01059-KJM-AC Document 83 Filed 10/02/15 Page 2 of 8

1

The Plaintiffs are prisoner Sam Johnson and a certified class consisting of California state

2 prisoners who are serving life sentences and are eligible for parole consideration after having

3 served their minimum terms. The Defendants include the Executive Officer of the Board, Chief

4 Psychologist of the Board, a Board Psychologist, the Secretary of the California Department of

5 Corrections and Rehabilitation, and California Governor Edmund G. Brown Jr., who are sued in

6 their official capacities as state officials.

7

The action was originally filed on April20, 2012. After the original Complaint was

8 dismissed, an Amended Complaint was filed on November 15, 2012. The Court certified the case

9 as a class action on March 31, 2014, and has granted partial summary judgment in favor of

10 Defendants -as to claims four, five, nine and twelve in the First Amended Complaint. All other

11 claims in the Amended Complaint remain. There have been two discovery periods, the first

12 closing before the class was certified. Discovery was reopened, beginning with the exchange of

13 initial disclosures in August 2014. The parties then conducted additional discovery, which

14 included depositions of Board officials, and Board psychologists involved in the forensic

15 assessment protocols and parole process, and disclosure of training materials, reports and other

16 documents.

17

The parties have conducted extensive negotiations over several months to resolve Plaintiffs'

18 demands concerning Board protocols used in comprehensive risk assessments prepared in

19 anticipation of parole consideration hearings. Those negotiations have been undertaken at arms'

20 length and in good faith between Plaintiffs' counsel, Defendants' counsel and Defendant Jennifer

21 Shaffer, Executive Officer of the Board. As a result of settlement negotiations the Board

22 commenced reforming the forensic assessment protocols. The parties have reached agreement on

23 changes to Defendants' forensic assessment protocols to settle Plaintiffs' claims for declaratory

24 and injunctive relief. The parties freely, voluntarily, and knowingly, with the advice of counsel,

25 enter into this Settlement for that purpose.

26

All parties and their counsel recognize that, in the absence of an approved settlement, they

27 face lengthy and substantial litigation, including trial and potential appellate proceedings, all of

28 which will consume time and resources and present the parties with ongoing litigation risks and 2
Am. Stip. Settlement (2:12-cv-01059-KJM)

Case 2:12-cv-01059-KJM-AC Document 83 Filed 10/02/15 Page 3 of 8

1 uncertainties. The parties wish to avoid these risks, uncertainties, and consumption of time and

2 resources through the terms and conditions of this Settlement.

3

ACCORDINGLY, without any admission or concession by Defendants of any past or

4 present and ongoing violations of a federal right, all claims in the First Amended Complaint shall

5 be finally and fully compromised, settled, and released, subject to the terms and conditions of this

6 Settlement, which the parties enter into freely, voluntarily, knowingly, and with the advice of

7 counsel.

8

A. JURISDICTION AND VENUE

9

The Court has jurisdiction over this matter under 28 U.S.C. §§ 1331 and 1343. Venue is

10 proper under 28 U.S.C. § 1391(b) because a substantial part ofthe events giving rise to Plaintiffs'

11 claims occurred in the Eastern District of California.

12

B. CLASS CERTIFICATION

13

On March 31, 2014, the Court certified a class consisting of California state prisoners who

14 are serving life sentences and are eligible for parole consideration after having served their

15 minimum terms.

16

C. TERMS AND CONDITIONS

17

1. Consistent with the terms negotiated with Plaintiffs, the Board of Parole Hearings

18 submitted a Budget Change Proposal for additional funding to administer Comprehensive Risk

19 Assessments (CRAs) every three years. The budget change was approved. As such, the Board

20 will begin preparing new CRAs every three years for hearings scheduled to occur on or after June

21 1, 2016, if the CRA is older than three years. For hearings advanced as a result of a petition to

22 advance or the Board's administrative review process under Penal Code section 3041.5 (b)(4) or

23 (d)( 1), a new CRA will be conducted if the prisoner's most recent CRA is more than three years

24 old at the time of the advanced hearing; if the most recent CRA is less than three years old at the

25 time of the advanced hearing, a new CRA will not be completed. The Board will revise its

26 regulations to reflect this process.

27

2. Before the regulatory change in Paragraph 1 is submitted to the Office of

28 Administrative Law (OAL), the Board will provide class counsel with a draft of the proposed 3

Am. Stip. Settlement (2:12-cv-01059-KJM)

Case 2:12-cv-01059-KJM-AC Document 83 Filed 10/02/15 Page 4 of 8

1 regulation. Class counsel shall have thirty days to review the draft and provide written comments 2 and suggestions to the Board, The Board will provide a written response to class counsel's 3 written comments within thirty days. When the proposed regulation is presented to the Board's 4 commissioners for review and a vote, class counsel may submit additional comments and 5 suggestions through the Board's public comment process. Once the regulation is submitted to the 6 OAL, class cotmsel may again submit additional comments and suggestions through the OAL

7 public comment process.

8

3. In accordance with Paragraph 1, the Board will no longer conduct Subsequent Risk

9 Assessments.

10

4. If, before December 31, 2016, the Board proposes any changes in how or whether the

11 CRA, including the HCR-20 Version 3, PCL-R, or Static 99-R will be administered, or proposes

12 using a risk-assessment tool other than the HCR-20 Version 3, PCL-R, and Static 99-R, class

13 counsel may present an expert to discuss the proposed changes to the Board's commissioners in

14 open session. The expert will be allowed to speak and answer questions for up to two hours. The

15 expert must have experience with the use of risk assessments in a correctional setting.

16

5. The Board's Chief Psychologist will again provide a presentation to the Board's

17 commissioners in open session regarding the recidivism rates for long-term offenders. The

18 information presented to the commissioners will be provided in a text document and made 19 available to class members through class counsel, on the Board's web site

20 (www.cdcr.ca.gov/BOPH), and will be emailed to all attorneys on file with the Board who are

21 currently representing life prisoners.

22

6. The Board's Chief Psychologist will again provide a presentation to the Board's

23 commissioners ,in open session regarding when and how the Board uses the Static 99-R, a risk/
24 assessment tool used to predict an offender's risk of sexual recidivism. this presentation will

25 include a discussion of how the Static 99-R accounts for an offender's age and other factors that 26 can change over time. The information presented to the commissioners will be provided in a text . 27 document and made available to class members through class counsel, on the Board's web site

28 4
Am. Stip. Settlement (2:12-cv-01059-KJM)

Case 2:12-cv-01059-KJM-AC Document 83 Filed 10/02/15 Page 5 of 8

1 (www.cdcr.ca.gov/BOPI-I), and will be emailed to all attorneys on file with the Board who are

2 currently representing life prisoners.

3

7. The Board will formalize a process for prisoners or their counsel to lodge timely

4 written objections asserting factual errors in a CRA (to be defined in the regulations) before their

5 parole consideration hearing occurs. If the Board receives a timely written objection in advance

6 of a parole hearing, the Board will provide a written response within a reasonable period of time.

7 The Board will submit draft regulations to reflect this process to the OAL by July 1, 2016.

8

8. Before the regulatory change in Paragraph 7 is submitted to the OAL, the Board will

9 provide class counsel with a draft of the proposed regulation. Class counsel shall have thirty days

10 to review the draft and provide written comments and suggestions to the Board. The Board will

11 provide a written response to class counsel's written comments within thirty days. Class counsel

12 will have additional opportunities to provide comments during the Board's and OAL's regular

13 public comment periods.

14

9. When the Static 99-R is used, the CRA will inform the reader that the Static 99-R

15 score alone generally does not assess dynamic characteristics that may mitigate or elevate a

16 prisoner's risk.

17

10. All future CRAs will clarify that the Overall Risk Rating is relative to other life

18 prisoners.

19

11. CRAs will inform the reader of the report that, generally speaking, the current

20 recidivism rates for long term offenders are lower than those of other prisoners released from

21 shorter sentences.

22

12. Plaintiffs will promptly dismiss all Defendants from this action except Defendant

23 Jennifer Shaffer, the Board's Executive Officer.

24

D. TERMINATION OF CASE

25

13. The Court will retainjurisdiction over this case until January 1, 2017.

26

14. If within 30 days after January 1, 2017, Plaintiffs believe that Defendants have not

27 submitted regulations to the OAL, completed the agreed upon presentations to the Board, and

28 provided language to Board psychologists with instructions to include it in CRAs, Plaintiffs may 5
Am. Stip. Settlement (2:12-cv-01059-KJM)

Case 2:12-cv-01059-KJM-AC Document 83 Filed 10/02/15 Page 6 of 8

1 seek an extension of the Court's jurisdiction over this matter for a period not to exceed 12

2 months. To receive an extension of the Court's jurisdiction, Plaintiffs must demonstrate by a

3 preponderance of the evidence that Defendants have not materially complied with the terms of

4 this agreement. Defendants shall have an opportunity to respond to Plaintiffs' request and present

5 their own evidence. If Plaintiffs do not seek an extension of the Court's jurisdiction within the

6 period noted above, or the Court denies Plaintiffs' request for an extension, this agreement and

7 the Court's jurisdiction shall automatically terminate, and the claims in this case shall be

8 dismissed with prejudice.

9

15. It is the intention of the parties in signing this Settlement that upon completion of its

10 terms it shall be effective as a full and final release from all claims asserted in the First Amended

11 Complaint.

12

E. JOINT MOTION AND STAY OF PROCEEDINGS

13

The parties will jointly request that the Court preliminarily approve this Settlement, require

14 that notice of the proposed settlement be sent to the class, and schedule a fairness hearing. The

15 parties will also file a proposed order granting preliminary approval of this Settlement. With this

16 Motion the Parties will also jointly request that the Court stay all other proceedings in this case

17 pending resolution of the fairness hearing. Following the close of the objection period, the Parties

18 will jointly request that the Court enter a final order containing all of the elements included in a

19 proposed order, approving this Settlement, retaining jurisdiction to enforce it, and continuing the

20 stay of the case pending the completion of this Settlement's terms.

21

F. ATTORNEYS' FEES

22

Defendants agree to pay Plaintiffs' counsel attorney's fees for work reasonably performed

23 on this case until preliminary approval of this Settlement at the hourly rate set forth under the

24 Prison Litigation Reform Act, 42 U.S.C. § 1997e(d). Plaintiffs shall have sixty days from the

25 entry of a preliminary order approving this Settlement to file their motion for attorneys' fees for

26 work reasonably performed before preliminary approval of this settlement. Defendants will not

27 oppose a motion for reasonable attorney's fees and costs that does not exceed $120,000.

28 6
Am. Stip. Settlement (2:12-cv-01059-KJM)

Case 2:12-cv-01059-KJM-AC Document 83 Filed 10/02/15 Page 7 of 8

1

The notice to the class members shall explain that Plaintiffs will file a motion for attorneys'

2 fees following entry of a preliminary order approving this Settlement.

3

G. CONSTRUCTION OF SETTLEMENT

4

This Settlement reflects the entire agreement of the parties and supersedes any prior written

5 or oral agreements between them. No extrinsic evidence whatsoever may be introduced in any

6 judicial proceeding to provide the meaning or construction of this Settlement. Any modification

7 to the terms of this Settlement must be in writing and signed by a Board representative and

8 attorneys for Plaintiffs and Defendants to be effective or enforceable.

9

This Settlement shall be governed and construed according to California law. The parties

10 waive any common-law or statutory rule of construction that ambiguity should be construed

11 against the drafter of this Settlement, and agree that the language in all parts of this Settlement

12 shall in all cases be construed as a whole, according to its fair meaning.

13

This Settlement shall be valid and binding on, and faithfully kept, observed, performed, and

14 be enforceable by and against the parties, their successors and assigns.

15 Ill 16 Ill 17 Ill 18 Ill 19 Ill 20 Ill 21 Ill 22 Ill 23 Ill 24 Ill 25 Ill 26 Ill 27 Ill

28 7
Am. Stip. Settlement (2:12-cv-01059-KJM)

From:Four

PCoainstes 2S:a1n2-Rcavfa-0el1059-KJM-TAoC:191D63o2c28u2m88ent 83

10/02/2015 15:33 #095 P.001/001 Filed 10/02/15 Page 8 of 8

1

The obligations governed by this Settlement am severable, If for any reason a part of this

2 , Settltment is determined to be invalid or unenforceable, such a determination shall not affect the

3 remainder.

4

The waiver by one party of any provision or breach of this Settlement shall not ~ deemed a

s waiver of any other provision or breach of this Settlement

6 IT IS SO STIPULATED.

7
2, 8 Dated: October 2015

9

10

11
12 Dated; October l , 2015

13

14

15

16

' ,.,

b 17 Dated: October 2015

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19

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SA2013310229
21 322001 J3.docx

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/
Jennifer Shaffer, Chief Executive Officer Board of Parole Hearings
~~-
Su "' rvising Deputy Attorney General Attorneys for Defendants Shaffer. Cate, Brown, Kusaj, Hayward. Powers, and Fulbright Kamala D.Harris Attorney General of California
(£~
Keith Wattley UnCommon Law Attorneysfor PlaintU]'Sam Johnson and the Plaintiff Class
8
Am. Stip. Settlement (2:12-cv-01059-KJM)

 
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IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 SAM JOHNSON,

11

Plaintiff,

No. 2:12-cv-1059 GGH P

12

vs.

13 JENNIFER SHAFFER, et. al.,

ORDER

14

Defendants.

15

/

16 I. Introduction

17

Plaintiff is a state prisoner proceeding with retained counsel who seeks relief

18 pursuant to 42 U.S.C. § 1983. Presently pending is defendants’ motion to dismiss this case

19 pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that plaintiff has failed to

20 state a claim upon which relief can be granted and that defendants are immune from suit.

21 Defendants include several governments officials and agencies responsible for the Board of

22 Parole Hearings (BPH) and psychological assessments of prisoners provided for the BPH. A

23 hearing was held before the undersigned on October 4, 2012. Keith Wattley appeared for

24 plaintiff and Michael Lee appeared for defendant.

25

The complaint alleges that the BPH has implemented policies making parole a

26 virtual impossibility. Plaintiff contends that the BPH has created a team of psychological

1

1 evaluators called the Forensic Assessment Division (FAD), but the team has been equipped with 2 invalid risk assessment tools that produce inaccurate and elevated predictions of future risk. It is 3 alleged the BPH uses these improper reports from the FAD as a pretext to provide an evidentiary 4 basis to deny parole. Plaintiff states his own psychiatric assessment was flawed and inaccurate 5 and improperly used to deny him parole. Specifically, plaintiff raised the following twelve 6 claims that allegedly violate federal due process and state law: 1) Defendants are utilizing invalid 7 tools and inadequate training to produce impermissibly elevated risk assessments of plaintiff and 8 others like him; 2 & 14) defendants made numerous false and misleading statements to the public 9 and other state agencies regarding the process of establishing the FAD and selecting the risk 10 assessment tools; 3) defendants refused to remove errors from plaintiff’s psychological 11 assessment; 4) while plaintiff was provided with the psychological assessment, he was not 12 provided with the raw data of the assessment or a recording or transcript of the interview; 5) 13 plaintiff was unable to be heard at the hearing because he did not have the raw data underlying 14 the assessment; 6) defendants refuse to record or transcribe the psychological interviews; 7) there 15 are no standards used by the FAD in distinguishing between the various risk categories (low, 16 moderate, or high), thus there is a lack of consistency; 8) while defendants allow plaintiff and 17 other prisoners to file objections to their assessments, the objections are frequently not provided 18 to the BPH; 9) plaintiff and other prisoners are not permitted to question or meet with FAD 19 psychologists after the reports haven been written; 10) defendants routinely overlook or discount 20 errors or omissions contained in the assessments; 11) the BPH grants parole to less than 1% of 21 prisoners appearing at their first hearings; 12 & 13) defendants deny plaintiff and other prisoners 22 the ability to call witnesses, including adverse witnesses such as the FAD psychologists at their 23 parole hearings; 15) defendants failed to comply with the requirements of California’s 24 Administrative Procedures Act is setting up the FAD; 16) defendants have never or almost never 25 had FAD psychologists testify at parole hearings in violation of California law. 26 \\\\\
2

1

All of the above claims conclude with a tag line that due process (or equal

2 protection) of the laws has been violated or that a state law has been violated. Claims 10 and 11

3 assert that the due process error in which leads to a biased adjudicator.

4

Plaintiff does not seek damages, nor does he seek to have another hearing held in

5 advance of when another hearing might normally be held. The specific relief sought is as

6 follows:

7 1. Declare due process and equal protection violations under both federal and state constitutions;

8 2. Declare the regulation governing the FAD void and unenforceable;

9 3. Declare that plaintiff has a liberty interest in parole;

10 4. Declare that due process provides at least a limited right to confront and cross-examine

11 adverse experts;

12 5. Declare that due process requires access to raw data and scores underscoring the FAD’s

13 evaluations;

14 6. Issue relief enjoining use of rules governing the FAD;

15 7. Remove Dr. Hayward’s report from plaintiff’s parole eligibility file;

16 8. Attorneys’ fees and costs;

17 9. Other appropriate relief.

18 II. Motion to Dismiss

19

Legal Standard

20

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6),

21 a complaint must contain more than a “formulaic recitation of the elements of a cause of action;”

22 it must contain factual allegations sufficient to “raise a right to relief above the speculative

23 level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain

24 something more...than...a statement of facts that merely creates a suspicion [of] a legally

25 cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure

26 § 1216, pp. 235-36 (3d ed. 2004). “[A] complaint must contain sufficient factual matter,

3

1 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

2 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when

3 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

4 defendant is liable for the misconduct alleged.” Id.

5

In considering a motion to dismiss, the court must accept as true the allegations of

6 the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740,

7 (1976), construe the pleading in the light most favorable to the party opposing the motion and

8 resolve all doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh’g denied,

9 396 U.S. 869 (1969). The court will “‘presume that general allegations embrace those specific

10 facts that are necessary to support the claim.’” National Organization for Women, Inc. v.

11 Scheidler, 510 U.S. 249, 256 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

12 (1992).

13

Discussion

14

Defendants do not contest plaintiff’s right to have his complaint heard in civil

15 rights as opposed to habeas corpus, and this concession appears correct in light of the relief

16 sought, i.e., the relief would not “necessarily invalidate” the rejection of parole eligibility. See

17 Skinner v. Switzer, __U.S.__, 131 S.Ct. 1289 (2011). Also, at the hearing, the undersigned

18 raised the issue that the claims in this case could perhaps be considered part of the Gilman class

19 action regarding parole hearings, and not appropriately brought separately. See Gilman v.

20 Brown, No. 2:05-cv-0830 LKK GGH. However, on September 7, 2012, the class of plaintiffs for

21 Claims 1, 3 and 6 in Gilman, which concern due process issues and most closely resemble the

22 claims in the instant case, was de-certified. Doc. 445, Gilman v. Brown, No. 2:05-cv-0830 LKK

23 GGH. Therefore, the instant claims may be brought separately in this action, assuming there is

24 merit to them.

25

Defendants first argue that they are immune from suit in their roles in the denial of

26 plaintiff’s parole. Specifically with respect to the defendants acting in a quasi-judicial role, the

4

1 Ninth Circuit has recognized that parole officials are entitled to absolute immunity from suits for

2 damages when they perform quasi-judicial functions. Swift v. State of California, 384 F.3d

3 1184, 1189 (9th Cir. 2004); Sellars v. Procunier, 641 F.2d 1295, 1301, 1303 (9th Cir. 1981).

4 However, absolute immunity does not bar claims for declaratory and injunctive relief in the

5 judicial context. Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970 (1984). As the instant

6 case does not seek monetary relief, but only seeks prospective injunctive and declaratory relief,

7 and there is a sufficient allegation of an ongoing violation of federal law, defendants are not

8 immune.

9

Section 42 §1983 does contain a provision abrogating Pulliam in part:

10

“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

11

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction

12

thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

13

injured in an action at law, suit in equity, or other proper

proceeding for redress, except that in any action brought against a

14

judicial officer for an act or omission taken in such officer's

judicial capacity, injunctive relief shall not be granted unless a

15

declaratory decree was violated or declaratory relief was

unavailable. For the purposes of this section, any Act of Congress

16

applicable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia." [Emphasis

17

added.]

18

In the instant action there are no allegations that a declaratory decree was violated

19 or declaratory relief was unavailable. “However, absolute judicial immunity does not apply to

20 non-judicial acts, i.e. the administrative, legislative, and executive functions that judges (or quasi

21 judges) may on occasion be assigned to perform.” Duvall v. County of Kitsap, 260 F.3d 1124,

22 1133 (9th Cir. 2001), citing Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538 (1988). The

23 Ninth Circuit identified the following factors as relevant to the determination of whether a

24 particular act is judicial in nature:

25

(1) the precise act is a normal judicial function; (2) the events

occurred in the judge's chambers; (3) the controversy centered

26

around a case then pending before the judge; and (4) the events at

5

1

issue arose directly and immediately out of a confrontation with the

judge in his or her official capacity.

2

3 Duvall, at 1133.

4

In the instant action, the specific actions of the individual defendants have not

5 been addressed in sufficient detail for the undersigned to make a determination in what capacity

6 individual defendants were acting. Based on the allegations in the complaint, it would appear

7 that the actions of the individual defendants, who denied plaintiff’s parole, would be judicial in

8 nature, and injunctive relief would be foreclosed insofar as an injunction would direct the BPH

9 commissioners in their parole decisions. However, it is doubtful that plaintiff seeks such relief,

10 or that the majority of defendants had anything to do with making a parole eligibility decision in

11 plaintiff’s case. The administrative and executive functions of the defendants in creating,

12 implementing and overseeing the FAD system would not appear to be subject to absolute judicial

13 immunity. See Wolfe v. Strankman, 392 F.3d 358, 366 (9th Cir. 2004) (“Since [plaintiff] also

14 sued Chief Justice George in his administrative capacity as Chair of the Judicial Council, we

15 conclude that dismissal is not warranted on the basis of judicial immunity.”) Thus, defendants’

16 motion to dismiss based on judicial immunity is denied without prejudice to a fuller exposition

17 of the duties, if any, each defendant acted upon with respect to a judicial decision about parole

18 eligibility in plaintiff’s case as opposed to administrative duties in enacting regulations, policies

19 and the like.

20

The gravamen of this case involves whether plaintiff has presented a cognizable

21 federal due process claim with respect to the denial of parole.1 Defendants note that relief in

22 parole habeas cases in federal court was substantially limited by the Supreme Court in 2011. On

23 January 24, 2011, the United States Supreme Court in a per curiam decision found that the Ninth

24 Circuit erred in commanding a federal review of the state’s application of state law in applying

25
1 To bring the various supplemental state law claims, plaintiff would need a viable federal 26 claim.

6

1 the “some evidence” standard in the parole eligibility habeas context. Swarthout v. Cooke, ___

2 U.S. ___, 131 S. Ct. 859, 861 (2011). Quoting, inter alia, Estelle v. McGuire, 502 U.S. 62, 67

3 (1991), the Supreme Court re-affirmed that “‘federal habeas corpus relief does not lie for errors

4 of state law.’” Id. While the high court found that the Ninth Circuit’s holding that California

5 law does create a liberty interest in parole was “a reasonable application of our cases” (while 6 explicitly not reviewing that holding),2 the Supreme Court stated:

7

When, however, a State creates a liberty interest, the Due Process

Clause requires fair procedures for its vindication-and federal

8

courts will review the application of those constitutionally required

procedures. In the context of parole, we have held that the

9

procedures required are minimal.

10 Swarthout v. Cooke, at 862.

11

Citing Greenholtz,3 the Supreme Court noted it had found under another state’s

12 similar parole statute that a prisoner had “received adequate process” when “allowed an

13 opportunity to be heard” and “provided a statement of the reasons why parole was denied.”

14 Swarthout v. Cooke, at 862. Noting their holding therein that “[t]he Constitution [] does not

15 require more,” the justices in the instances before them, found the prisoners had “received at least

16 this amount of process: They were allowed to speak at their parole hearings and to contest the

17 evidence against them, were afforded access to their records in advance, and were notified as to

18 the reasons why parole was denied.” Id.

19

20

2 While not specifically overruling Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en

banc), the Supreme Court instead referenced Pearson v. Muntz, 606 F.3d 606 (9th Cir. 2010),

21 which further explained Hayward. Thus, the Supreme Court’s decision in Swarthout, essentially

overruled the general premise of Hayward. When circuit authority is overruled by the Supreme

22 Court, a district court is no longer bound by that authority, and need not wait until the authority is

also expressly overruled. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en

23 banc). Furthermore, “circuit precedent, authoritative at the time it was issued, can be effectively

overruled by subsequent Supreme Court decisions that ‘are closely on point,’ even though those

24 decisions do not expressly overrule the prior circuit precedent.” Miller, 335 F.3d at 899 (quoting

Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123 (9th Cir. 2002)). Therefore, this court

25 is not bound by Hayward.

26

3 Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979).

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1

The Supreme Court was emphatic in asserting “[t]hat should have been the

2 beginning and the end of the federal habeas courts’ inquiry....” Swarthout v. Cooke, at 862. “It

3 will not do to pronounce California’s ‘some evidence’ rule to be ‘a component’ of the liberty

4 interest....” Id., at 863. “No opinion of ours supports converting California’s “some evidence”

5 rule into a substantive federal requirement.” Id., at 862. The Ninth Circuit recently noted that in

6 light of Swarthout v. Cooke, certain Ninth Circuit jurisprudence had been reversed and “there is

7 no substantive due process right created by California’s parole scheme.” Roberts v. Hartley, 640

8 F.3d 1042, 1046 (9th Cir. 2011). Thus, there is no federal due process requirement for a “some

9 evidence” review and federal courts are precluded from review of the state court’s application of

10 its “some evidence” standard.

11

To the extent plaintiff asserts that his denial of parole was not supported by some

12 evidence, any such claim is foreclosed by Swarthout. To the extent plaintiff has attempted to

13 avoid Swarthout by stating that the psychological assessment in his case was flawed or the BPH

14 was biased, plaintiff is still essentially challenging the some evidence relied on by the BPH

15 which remains foreclosed by Swarthout. That plaintiff does not agree with the conclusions of his

16 psychological assessment, namely that he would be in a high range of recidivism, fails to state a 17 federal due process violation as it still involves the some evidence used to deny parole.4 To the

18 extent plaintiff alleges that he was not allowed to cross-examine the psychologist who performed

19 the interview or that there was no transcript of the interview, these claims also remain foreclosed

20 by the Supreme Court. As stated above, plaintiff was not required to be afforded a full hearing,

21 he was only required an opportunity to be heard and to be provided a statement of why parole

22 was denied which occurred in the instant case. Attempting to recast “some evidence” claims as

23 “bias” claims is equally flawed, as plaintiff has not presented sufficient allegations in his

24
4 For example, plaintiff’s psychological assessment described a lack of insight and 25 negativity, yet according to plaintiff the report did not explain the evidentiary basis for these
findings. It is not the job of federal courts to review the evidence and evaluate the evidentiary 26 basis for the findings in state court parole cases. See Swarthout.

8

1 complaint of a biased BPH. Simply stating that the psychological assessment was flawed and

2 biased and thus the BPH was biased, without any support, fails to state a claim that is plausible

3 on its face. Plaintiff has only presented conclusory allegations. While plaintiff challenges the

4 conclusions of the assessment, plaintiff is simply disagreeing with the opinion of that report and

5 has failed to present sufficient factual statements in support. Nor is federal relief available for

6 the state improperly following state law with respect to plaintiff’s denial of parole, as raised in

7 several claims.

8

Plaintiff analogizes his allegations to the claims set forth in Gilman, where that

9 court found that plaintiffs could make out a prima facie case of a due process violation if a BPH

10 hearing was presided over by officers with an unconstitutional bias. Gilman v. Brown, 2012 WL

11 1969200 *4 (E.D. Cal. May 31, 2012). While this is accurate, plaintiff must allege more than a

12 conclusory statement that the BPH was unconstitutionally biased, or the Supreme Court’s

13 decision in Swarthout would be rendered meaningless. Plaintiff must present these allegations in

14 light of Ashcroft v. Iqbal, 556 U.S. 662 (2009), as described above. In the instant case, plaintiff

15 has failed to present sufficient allegations that his specific parole decision or psychological

16 assessment was the result of any bias against him by defendants.

17

However, while plaintiff’s allegations regarding his specific case have failed to

18 state a claim, plaintiff may be able to set forth a claim regarding a systemic problem with the

19 psychological assessments and the BPH. If, as plaintiff alleges, the psychological assessments

20 were purposely contrived to be deficient and are used as part of a pattern or practice to provide a

21 false evidentiary basis for the BPH commissioners to deny parole, then this would state a federal

22 due process claim. Yet, simply stating that allegation is insufficient. “[A] complaint must

23 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

24 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A

25 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

26 the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

9

1

During the hearing, plaintiff repeatedly referenced that evidence would eventually

2 surface or become known regarding the true reasons and motives for the psychological

3 assessments and the relationship to the BPH denials. However, plaintiff never actually described

4 the evidence itself that would eventually be disclosed. With respect to allegations in the

5 complaint regarding a systemic problem, the complaint does not contain sufficient factual matter.

6 Plaintiff states that the risk assessment tools used by the BPH have been found not to be valid

7 predictors of future violence, yet these alleged deficient tools themselves are not even described.

8 Complaint at 13. Simply stating the predictors are deficient is insufficient. There is little else in

9 the complaint that speaks to a systemic problem other than all prisoners having a BPH hearing

10 receive a psychological assessment. That prisoners with the potential for serving life sentences

11 undergo a psychological assessment prior to a parole determination, does not necessarily equate

12 to a due process violation.

13

Most importantly, plaintiff presents hardly any statistical information regarding

14 how numerous parole denials are the result of these biased and flawed assessments. Plaintiff

15 contends that less than 1% of prisoners are granted parole at their first hearings, therefore there is

16 a due process “bias” violation and the psychological assessments are also at fault. In essence,

17 plaintiff has described his experience with the assessment, assumes it was the result of a biased

18 and flawed psychological assessment contrived to deny him parole and then concludes a majority

19 of other prisoners must have suffered the same result. This is insufficient to state a claim of 20 systematic abuse and is mere speculation.5 Plaintiff will be allowed to file an amended complaint

21 to cure these deficiencies.

22 /////

23 /////

24

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5 If, for example, plaintiff had posited a previous 10% grant rate for first time parole

seeker, and then alleged that a psychological review system was put in place in order to reduce

26 this figure, and indeed, it was reduced to 1%, a systemic bias claim might well be sustained.

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IT IS HEREBY ORDERED that the motion to dismiss (Doc. 11) is granted, but

2 plaintiff may file an amended complaint within 28 days.6

3 DATED: October 18, 2012

4

/s/ Gregory G. Hollows

5

UNITED STATES MAGISTRATE JUDGE

6 GGH: AB
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6 Because the granting of a motion to dismiss with leave to amend is not dispositive of the 26 action, the undersigned issues an order in lieu of a Findings and Recommendations.

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 SAM JOHNSON, on behalf of himself and all others similarly situated,
12 Plaintiffs,1
13 v.
14 JENNIFER SHAFFER, et al.,
15 Defendants.
16

No. 2:12-cv-1059 KJM AC P ORDER

17

18

Plaintiffs are a class of state prisoners represented by named plaintiff Sam Johnson

19 proceeding through counsel with this civil rights action seeking relief under 42 U.S.C. § 1983.

20 The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C.

21 § 636(b)(1)(B) and Local Rule 302.

22

On December 3, 2014, the magistrate judge filed findings and recommendations,

23 which were served on all parties and which contained notice to all parties that any objections to

24 the findings and recommendations were to be filed within twenty-one days. Defendants have

25 filed objections to the findings and recommendations and plaintiffs have filed a reply to

26 /////

27 1 The class in this action was certified by order filed March 31, 2014. ECF No. 44. The
28 caption in this action is hereby amended accordingly.
1

1 defendants’ objections. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local

2 Rule 304, this court has conducted a de novo review of this case.

3

Defendants’ sole objection is to the magistrate judge’s finding that plaintiffs’ tenth

4 claim is sufficiently pled as to the entire class. The challenge contained in the tenth claim is to

5 alleged systemic tribunal bias caused by defendants’ practice of “routinely overlook[ing] or

6 discount[ing] errors and omissions contained in negative psychological evaluations [while]

7 emphasiz[ing] errors and omissions found in otherwise positive psychological evaluations in

8 order to discredit their conclusions.” ECF No. 18 at 22. Citing Wal-Mart Stores, Inc. v. Dukes,

9 ___ U.S. ___, 131 S. Ct. 2541, 2552 (2011) and Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937,

10 1949 (2009), defendants contend plaintiffs must “allege facts establishing significant proof of a

11 general practice of bias” and that they have not done so. ECF No. 63. This objection is a

12 variation on defendants’ contention in opposition to plaintiffs’ motion for class certification that

13 plaintiffs had not satisfied the commonality requirement of Federal Rule of Civil Procedure

14 23(a)(2). See ECF No. 40 at 16-17. That argument was considered and rejected by the court

15 when it certified the class in this action. See ECF No. 44 (adopting in full ECF No. 40). It is

16 equally without merit here.

17

In sum, having carefully reviewed the file, the court finds the findings and

18 recommendations to be supported by the record and by proper analysis. They will be adopted in

19 full.

20

On April 15, 2015, the parties filed a joint request to modify the pretrial

21 scheduling order filed in this action and to set a case management conference for August 7, 2015,

22 to reschedule this action if they have not reached a settlement agreement. Good cause appearing,

23 the motion will be granted. The court will set a further scheduling conference for August 13,

24 2015, which is the court’s regular day for such conferences.

25

In accordance with the above, IT IS HEREBY ORDERED that:

26

1. The findings and recommendations filed December 3, 2014 (ECF No. 62), are

27 adopted in full;

28 ///// 2

1

2. Defendants’ motion for judgment on the pleadings (ECF No. 55) is granted as

2 to Claims Four, Five, Nine and Twelve, and otherwise denied;

3

3. Plaintiffs are granted 30 days from the date of this order to file an amended

4 complaint alleging only the two remaining claims, or to file a statement that they will stand on the

5 surviving claims of the current complaint as construed by the court;

6

4. Defendants’ motion to dismiss all defendants other than the Governor and the

7 Executive Officer of the Board of Parole Hearings, is denied;

8

5. The parties’ joint request to modify the pretrial scheduling order and set a case

9 management conference (ECF No. 66) is granted;

10

6. The dates set in the pretrial scheduling order filed May 22, 2014 (ECF No. 51)

11 are vacated; and

12

7. This matter is set for further status conference on August 13, 2015 at 2:30 p.m.

13 in Courtroom # 3.

14 DATED: May 14, 2015.

15

16

UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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13 SAM JOHNSON,

2:12-cv-01059-KJM

14

15

v.

Plaintiff, ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

16 JENNIFER SHAFFER, et al., 17

Courtroom: 3

Judge:

The Hon. Kimberly J. Mueller

Defendants. Action Filed: April 20, 2012

18

19

Plaintiffs in this action, Sam Johnson and a class consisting of California state prisoners

20 who are serving life sentences and are eligible for parole consideration after having served their

21 minimum terms, challenge the constitutionality of the protocol adopted by the Board of Parole

22 Hearings (BPH) for the preparation of psychological risk assessment reports to be considered in

23 determining prisoners’ suitability for parole. Plaintiffs claim that they are entitled to declaratory

24 and injunctive relief to address their claims. Defendants are the Executive Officer of the BPH

25 and various other government officials and employees, all of whom are sued in their official

26 capacity.

27

The parties have entered into a Stipulated Settlement that was filed with their Joint Motion

28 for Preliminary Approval of Class Action Settlement, which would settle all claims in this case. 1
Order Granting Prelim. Approval of Class Action Settlement (2:12-cv-01059-KJM)

1 The parties have submitted a proposed Notice to the Class, and have agreed to a process regarding

2 the distribution of the order to the plaintiff class.

3

This court has presided over the proceedings in the above-captioned action and has

4 reviewed the pleadings, records, and papers on file. The court has reviewed the Joint Motion for

5 Preliminary Approval of Class Action Settlement, along with the Stipulated Settlement and

6 supporting documents, and has considered the parties’ arguments concerning the proposed

7 settlement of this class action.

8

The court has determined that an inquiry should be made regarding the fairness and

9 adequacy of this proposed settlement.

10

Accordingly, good cause appearing, IT IS ORDERED AS FOLLOWS:

11

1. A court should preliminarily approve a class action settlement if it “appears to be

12 the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does

13 not improperly grant preferential treatment to class representatives or segments of the class, and

14 falls within the range of possible approval.” In re Tableware Antitrust Litig., 484 F. Supp. 2d

15 1078, 1079 (N.D. Cal. 2007). The court finds that this standard is met in this case, as the

16 proposed settlement is the product of arm’s-length, serious, informed, and non-collusive

17 negotiations between experienced and knowledgeable counsel who have actively prosecuted and

18 defended this litigation. The court further finds that, for purposes of settlement only, the

19 Stipulated Settlement meets the requirements of 18 U.S.C. § 3626(a)(1). Except as provided in

20 paragraph 2 of this order, the Stipulated Settlement filed on September 10, 2015 is granted

21 preliminary approval and incorporated by reference herein, subject to the right of class members

22 to challenge the fairness, reasonableness, or adequacy of the Stipulated Settlement.

23

2. In accordance with the representations of counsel at the telephonic status

24 conference on October 1, 2015 and good cause appearing, paragraph 15 of the Stipulated

25 Settlement shall be removed therefrom. Defendants retain all rights provided under 18 U.S.C.

26 § 3626(b).

27

3. Under Federal Rule of Civil Procedure 23(e)(1), the court approves the substance,

28 form and manner of the Notice of Proposed Class Action Settlement (the “Notice”) filed by the 2
Order Granting Prelim. Approval of Class Action Settlement (2:12-cv-01059-KJM)

1 parties on September 10, 2015, and finds that the proposed method of disseminating the Class

2 Notice meets all due process and other legal requirements and is the best notice practicable under

3 the circumstances.

4

4. Within three days of this Order, the parties are directed to prepare a final version

5 of the Stipulated Settlement removing paragraph 15, and a final version of the Notice

6 incorporating the dates set forth in this Order.

7

5. Within fourteen court days of this Order, defendants are directed to post the Notice

8 in English and Spanish in all housing units of all prisons housing prisoners who are serving life

9 sentences and are eligible for parole consideration after having served their minimum terms.

10 Defendants must file and serve on plaintiffs’ counsel a declaration affirming that the Notice was

11 published as required in this order.

12

6. A Final Fairness Hearing shall take place at 10:00 a.m. on December 18, 2015 at

13 the United States District Court for the Eastern District of California, United States Courthouse,

14 501 I St., Sacramento CA 95814, in Courtroom 3, to determine whether the proposed settlement

15 of this action on the terms and conditions provided for in the Stipulated Settlement is fair,

16 reasonable, and adequate and should be finally approved by the court, and whether this action

17 should be dismissed under the settlement. The hearing may be continued from time to time

18 without further notice to the class. Any further briefing from the parties in advance of the hearing

19 shall be filed no later than December 4, 2015.

20

7. Any member of the class may enter an appearance on his or her own behalf in this

21 action through that class member’s own attorney (at the member’s own expense), but need not do

22 so. Class members who do not enter an appearance through their own attorneys will be

23 represented by Class counsel. Alternatively, any member of the class may write to the court

24 directly about whether the settlement is fair. The court will consider written communications

25 when deciding whether to approve the settlement. Comments regarding the fairness of the

26 settlement MUST include at the top of the first page the case name (Johnson v. Shaffer, et al.) and

27 the case number 2:12-CV-01059-KJM. A written comment must contain the author’s full name

28 and CDCR number, must include all objections and the reasons for them, must include any and 3
Order Granting Prelim. Approval of Class Action Settlement (2:12-cv-01059-KJM)

1 all supporting papers (including, without limitation, all briefs, written evidence, and declarations),

2 and must be signed by the Class Member. A Class Member who desires to comment but who

3 fails to comply with the above objection procedure and timeline shall be deemed to have not

4 objected and the objection shall not be heard or considered at the hearing. Comments must be

5 postmarked by November 13, 2015 and must be sent to the following address:

6

Clerk of the Court

7

United States District Court

8

Eastern District of California

501 “I” Street

9

Sacramento, CA 95814

10

11

IT IS SO ORDERED.

12 DATED: October 6, 2015. 13

UNITED STATES DISTRICT JUDGE

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4
Order Granting Prelim. Approval of Class Action Settlement (2:12-cv-01059-KJM)

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 SAM JOHNSON, on behalf of himself and all others similarly situated,
12 Plaintiffs,
13 v.
14 JENNIFER SHAFFER, et al.,
15 Defendants.
16

No. 2:12-cv-1059 KJM AC P ORDER

17

18

The parties to this action move jointly for final approval of class action settlement.

19 (ECF No. 158.) The court held a hearing on the matter on December 18, 2015, at which Keith

20 Wattley appeared for the plaintiff class and Jessica Blonien and Heather Heckler appeared for

21 defendants. As explained below, the court GRANTS the parties’ motion.

22 I. FACTUAL AND PROCEDURAL BACKGROUND

23

This class action lawsuit challenges the constitutionality of the protocol adopted by

24 California’s Board of Parole Hearings’ (Board) Forensic Assessment Division (FAD) for use in

25 the preparation of psychological evaluations to be considered in determining the suitability of

26 class members for parole. The class consists of California state prisoners who are serving life

27 sentences and are eligible for parole consideration after having served their minimum terms.

28 (ECF No. 40 at 14; ECF No. 44 at 2.) 1

1

This action was filed on April 20, 2012. (ECF No. 1.) Following service of

2 process, defendants moved dismiss. (ECF Nos. 10, 11.) By order filed October 18, 2012,

3 defendants’ amended motion to dismiss was granted with leave to file an amended complaint.

4 (ECF No. 17.) On November 15, 2012, plaintiff filed an amended complaint containing sixteen

5 causes of action, (ECF No. 18), which defendants answered on December 6, 2012. (ECF No. 21.)

6 Thereafter, discovery commenced, plaintiff moved for class certification, (ECF No. 29), and

7 defendants moved for summary judgment. (ECF No. 30.) On November 1, 2013, the magistrate

8 judge issued findings and recommendations recommending that the motion for class certification

9 be granted and defendants’ motion for summary judgment be granted in part and denied in part.

10 (ECF No. 40.) Specifically, the magistrate judge recommended that the motion be granted as to

11 plaintiff’s equal protection and pendent state law claims, denied as to plaintiff’s due process

12 claims insofar as defendants relied on Swarthout v. Cooke, 562 U.S. 216 (2011) to support the

13 motion, and denied in all other respects without prejudice to renewal after completion of

14 discovery. (ECF No. 40 at 21-22.) The findings and recommendations were adopted in full by

15 this court on March 31, 2014, (ECF No. 44), leaving only plaintiff’s due process claims. (ECF

16 No. 62 at 3.)

17

On April 14, 2014, defendants filed a petition for permission to appeal the order

18 granting class certification. (See ECF No. 47.) On June 12, 2014, the United States Court of

19 Appeals for the Ninth Circuit denied the petition. (ECF No. 53.)

20

On September 26, 2014, defendants filed a motion for judgment on the pleadings.

21 (ECF No. 55.) On December 3, 2014, the magistrate judge issued findings and recommendations

22 recommending that the motion be granted as to four of the six claims remaining in the action and

23 denied as to two claims. (ECF No. 62.) The two surviving claims were characterized as “(1) a

24 Due Process violation predicated upon the denial of a fair and unbiased parole procedure (the

25 ‘systemic bias’ claim), as principally embodied in the First and Eleventh Claims; and (2) a Due

26 Process violation predicated upon the denial of fair and unbiased parole panels, as principally

27 embodied in the Tenth Claims.” (ECF No. 62 at 26.) Five of the claims were “construed not as

28 independent causes of action but as additional factual predicates for the overarching bias claims.” 2

1 (ECF No. 62 at 26.) On May 15, 2015, this court adopted the findings and recommendations and

2 set a status conference for August 13, 2015. (ECF No. 68.)

3

Thereafter, on July 17, 2015, the parties filed a joint status report informing the

4 court of substantial progress in settlement negotiations. (ECF No. 73.) The court directed the

5 parties to file a further status report on their settlement efforts by August 11, 2015. (ECF No. 76.)

6 The parties filed a joint statement on August 11, 2015, indicating that settlement negotiations had

7 been productive and they anticipated filing final settlement documents with the court by

8 September 10, 2015. (ECF No. 77.) The court continued the status conference, (ECF No. 78),

9 and on September 10, 2015, the parties filed a joint motion for preliminary approval of their

10 settlement agreement. (ECF No. 79.)

11

On October 1, 2015, the court held a telephonic status conference on the motion

12 for preliminary approval. (ECF No. 82.) Following the status conference, the court granted the

13 motion, directed the parties to file a final version of the proposed settlement agreement removing

14 paragraph 15 and incorporating deadlines for posting notice in prison housing units, postmarking

15 comments to the court, filing final briefing, and setting a date for the final fairness hearing. (ECF

16 No. 84.)

17

The court received numerous comments from prison inmates. (ECF Nos. 91-114,

18 116-132, 134-153, 155-157, 160.) On December 18, 2015, the court held a final fairness hearing.

19 (ECF No. 161.) During the hearing, the court discussed with the parties issues raised in the

20 objections, including (1) whether risk assessment interviews can be recorded; (2) whether the risk

21 assessment tools have been validated or found reliable or proper for use in predicting potential

22 recidivism among life inmates; and (3) whether there is a procedure for objecting to factual errors

23 and/or conclusions in risk assessments. (ECF No. 163.) The court directed the parties to file

24 further briefing concerning the validity of the risk assessment tools at issue. Id. at 8-9. The

25 parties filed a joint brief and exhibits on January 8, 2016, (ECF Nos. 165, 166), which the court

26 has now considered.

27

28 3

1 II. THE KEY TERMS OF THE SETTLEMENT AGREEMENT

2

Under the settlement agreement, defendants have agreed to the following changes

3 in evaluating class members’ eligibility for parole:

4

1. The Board agreed to, and did, submit a Budget Change Proposal to obtain

5 additional funding in order to administer Comprehensive Risk Assessments (CRAs) every three

6 years. (ECF No. 83 at 3.) The Board obtained the additional funding, and will now begin

7 preparing new CRAs every three years for parole hearings scheduled on or after June 1, 2016,

8 where the existing CRA is more than three years old. (Id.) Similarly, a new CRA will be

9 prepared for hearings “advanced as a result of a petition to advance or the Board’s administrative

10 review process under California Penal Code § 3041.5(b)(4) or (d)(1)” where the existing CRA is

11 more than three years old. These changes will be reflected in revised regulations. (Id.) Class

12 counsel will be given multiple opportunities to comment to the Board and the Office of

13 Administrative Law (OAL) on the proposed regulations. (Id. at 4.) As a result of these changes,

14 the Board will no longer conduct Subsequent Risk Assessments. (Id.)

15

2. The agreement provides for class counsel to present an expert to the Board if,

16 before December 31, 2016, the Board proposes any changes in how or whether the CRA will be

17 administered, including any changes in the three risk assessment tools called into question by this

18 action: the HCR-20 Version 3, PCL-R, and Static 99-R. The same expert presentation

19 opportunity arises if the Board proposes using a risk-assessment tool other than the foregoing

20 three tools. (Id.) The expert, who “must have experience with use of risk assessments in a

21 correctional setting”, will be allowed to speak and answer questions for up to two hours. (Id.)

22

3. The agreement provides for two presentations by the Board’s Chief

23 Psychologist to the Board’s commissioners in open session, one regarding recidivism rates for

24 long-term offenders and one regarding use of the Static 99-R, “a risk assessment tool used to

25 predict an offender’s risk of sexual recidivism.” (Id. at 4.) The information presented to the

26 Board will be put in text documents “and made available to class members through class counsel,

27 on the Board’s website . . . and . . .emailed to all attorneys on file with the Board who are

28 currently representing life prisoners.” (Id. at 4-5.) In addition, when the Static 99-R is used for a 4

1 risk assessment, the CRA “will inform the reader that the Static 99-R score alone generally does

2 not assess dynamic characteristics that may mitigate or elevate a prisoner’s risk.” (Id. at 5.)

3 Going forward, “CRAs will clarify that the Overall Risk Rating is relative to other life prisoners”

4 and inform the report reader that “generally speaking, the current recidivism rates for long term

5 offenders are lower than those of other prisoners released from shorter sentences.” (Id.)

6

4. The Board will develop a formal process for inmates or their attorneys “to

7 lodge timely written objections asserting factual errors in a CRA (to be defined in the regulations)

8 before their parole consideration hearing occurs.” (Id.) The Board will provide a written

9 response to timely objections. (Id.) These changes will be incorporated in proposed regulations

10 to be submitted to the OAL by July 1, 2016. (Id.) Class counsel will be given multiple

11 opportunities to comment to the Board and the OAL on the proposed regulations. (Id.)

12

5. All defendants will be dismissed except defendant Shaffer, the Executive

13 Officer of the Board. (Id.) The court will retain jurisdiction over this action until January 1,

14 2017. (Id.) Plaintiffs may seek an extension of the court’s supervision based on evidence of

15 material non-compliance with the agreement. (Id.)

16 III. THE SETTLEMENT AND FAIRNESS

17

A. Legal Framework

18

When parties settle a class action, a court cannot simply accept the parties'

19 resolution; rather it must also satisfy itself the proposed settlement is “fundamentally fair,

20 adequate, and reasonable.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.1998). After

21 the initial certification and notice to the class, a court conducts a fairness hearing before finally

22 approving any proposed settlement. Narouz v. Charter Commc'ns, Inc., 591 F.3d 1261, 1267 (9th

23 Cir.2010); Fed. R. Civ. P. 23(e)(2) (“If the proposal would bind class members, the court may

24 approve it only after a hearing and on finding that it is fair, reasonable, and adequate.”). A court

25 must balance a number of factors in determining whether a proposed settlement is in fact fair,

26 adequate and reasonable:

27

[(1)] the strength of the plaintiffs’ case; [(2)] the risk, expense,

complexity, and likely duration of further litigation; [(3)] the risk of

28

maintaining class action status throughout the trial; [(4)] the amount

5

1

offered in settlement; [(5)] the extent of discovery completed and

the stage of the proceedings; [(6)] the experience and views of

2

counsel; [(7)] the presence of a governmental participant; and [(8)]

the reaction of the class members to the proposed settlement.

3

4 Hanlon, 150 F.3d at 1026; Adoma v. Univ. of Phx., 913 F.Supp.2d 964, 974–75 (E.D.Cal.2012).

5 The list is not exhaustive, and the factors may be applied differently in different circumstances.

6 Officers for Justice v. Civil Serv. Comm'n of City & Cnty. of S.F., 688 F.2d 615, 625 (9th

7 Cir.1982).

8

The court must consider the settlement as a whole, rather than its component parts,

9 in evaluating fairness; the settlement “must stand or fall in its entirety.” Hanlon, 150 F.3d at

10 1026. Ultimately, the court must reach “a reasoned judgment that the agreement is not the

11 product of fraud or overreaching by, or collusion between, the negotiating parties, and that the

12 settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” Officers for

13 Justice, 688 F.2d at 625.

14

B. The Strength of Plaintiff’s Case

15

When assessing the strength of plaintiff’s case, the court does not reach “any

16 ultimate conclusions regarding the contested issues of fact and law that underlie the merits of

17 [the] litigation.” In re Wash. Pub. Power Supply Sys. Secs. Litig., 720 F.Supp. 1379, 1388

18 (D.Ariz.1989). The court cannot reach such a conclusion because evidence has not been fully

19 presented and the “settlements were induced in large part by the very uncertainty as to what the

20 outcome would be, had litigation continued.” Id. Instead, the court is to “evaluate objectively the

21 strengths and weaknesses inherent in the litigation and the impact of those considerations on the

22 parties’ decisions to reach these agreements.” Id.

23

A central issue in this action is the reliability of the three risk assessment tools

24 referred to in the settlement agreement when used to evaluate the suitability of life inmates for

25 parole. The parties disagree about the reliability of the instruments for use with California’s life

26 inmate population. (ECF No. 165 at 2-5.) The parties agree, however, that despite “extensive

27 discovery” no evidence was presented “to support the claim that the Board intentionally chose

28 flawed risk instruments.” (ECF No. 158 at 11.) 6

1

The court agrees that evidence of such intent would be required for named plaintiff

2 to prevail on his remaining claims. In light of the uncertainties of litigating this case in the face of

3 this apparent evidentiary void, an immediate benefit to the purported class members is in their

4 interest. See Officers for Justice, 688 F.2d at 625 (noting that “voluntary conciliation and

5 settlement are the preferred means of dispute resolution”).

6

This factor favors approving the settlement.

7

C. The Risk, Expense, Complexity and Likely Duration of Further Litigation

8

“Approval of settlement is ‘preferable to lengthy and expensive litigation with

9 uncertain results.’” Morales v. Stevco, Inc., No. 09–00704, 2011 WL 5511767, at *10 (E.D.Cal.

10 Nov. 10, 2011) (quoting Nat'l Rural Telecomms. Coop. v. DIRECTV, Inc. (DIRECTV), 221

11 F.R.D. 523, 529 (C.D.Cal.2004)). The Ninth Circuit has explained “there is a strong judicial

12 policy that favors settlements, particularly where complex class action litigation is concerned.” In

13 re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir.2008) (citing Class Plaintiffs v. City of

14 Seattle, 955 F.2d 1268, 1276 (9th Cir.1992)).

15

Here, the parties agree there are significant risks associated with continued

16 litigation of the claims in this case. The parties’ dispute over the reliability of use of the risk

17 assessment tools combined with the apparent dearth of evidence that defendants intentionally

18 chose flawed risk instruments presents obstacles for plaintiff in pursuing these claims further. In

19 response to the court’s directive at the fairness hearing, the parties have provided an extended list,

20 accompanied by evidence, of “studies and literature validating the risk assessment tools,” which

21 defendants aver “support use of the risk assessment tools on California life inmates.” ECF No.

22 165 at 2-5 and evidence cited therein. This highlights the nature of the dispute, which is not

23 resolved by the court in approving this settlement agreement. The difficulties plaintiff faces in

24 turn would result in expenditure of more time and resources, for all parties. Given the high costs

25 associated with litigating the claims at issue, and the potential lengthy duration of litigation, the

26 court finds this factor too weighs in favor of approval.

27

These factors weigh in favor of approving the settlement.

28 7

1

D. The Settlement Agreement

2

As discussed above, the settlement negotiated by the parties provides for new risk

3 assessments for class members every three years, and defendants have agreed to develop a

4 process by which inmates can submit formal written objections to factual findings in the risk

5 assessments. These changes will be formalized in new regulations and class counsel will have

6 opportunities to comment on the proposed regulations before they are adopted. The agreement

7 also provides for two presentations to the Board, one on recidivism rates of long-term offenders,

8 and one on use of one of the risk assessment tools at issue. In addition, the agreement provides

9 that class counsel will be given an opportunity to present expert testimony to the Board if by the

10 end of calendar year 2016 the Board proposes any changes in administration of the risk

11 assessments, including the tools used. Finally, the agreement provides for this court’s continuing

12 supervision until January 1, 2017, or longer if it is demonstrated that material compliance with the

13 agreement has not been achieved.

14

Although the settlement does not require use of different risk assessment tools for

15 use with California’s life inmate population, it does incorporate several mechanisms that address

16 concerns of possible bias in the risk assessment process and parole decisions based on such risk

17 assessments. The parties have jointly moved the court to approve the settlement agreement,

18 which was reached after “extensive arms-length negotiation.” ECF No. 158 at 11. The nature of

19 the settlement agreement weighs in favor of approval.

20

E. The Extent of Discovery and the Stage of the Proceedings

21

This action has been pending for almost four years. The class was certified in

22 March 2014, (ECF No. 44), and the parties have engaged in “extensive discovery”, ECF No. 158

23 at 9. In addition, the claims have been narrowed through resolution of a motion for summary

24 judgment and a motion for judgment on the pleadings. (ECF Nos. 44, 68.) The court is satisfied

25 that the proceedings in this matter have provided the parties with sufficient information to enable

26 them to reach a meaningful settlement agreement.

27

28 8

1

F. The Experience and Views of Counsel

2

Class counsel is the founder and managing attorney of a non-profit organization

3 that “provides advocacy and representation on behalf of individual prisoners and parolees,

4 educates the public about the rights of life-term prisoners and parolees, and provides legal

5 trainings to attorneys and law students across the state.” (ECF No. 86-1 ¶¶ 1-2.) He has

6 “litigated hundreds of prisoner and parolee cases over the last 15 years,” including In re

7 Rutherford, No. SC13599A (Superior Court for Marin County), a class action lawsuit that

8 preceded this one and whose class had interests “closely aligned” with the present class. (Id. ¶ 2;

9 ECF No. 40 at 19.) Defendants are represented by two attorneys with the California Office of the

10 Attorney General, one of whom is a supervising deputy attorney general. The court has already

11 found that counsel for both sides are “experienced and knowledgeable.” (ECF No. 84 at 2.)

12 Counsel agree that the settlement is fair and “benefits class members while eliminating the risk of

13 trial for both sides.” ECF No. 158 at 11. Accordingly, given the experience of counsel and their

14 views, this factor favors approving the settlement. See Barbosa v. Cargill Meat Solutions Corp.,

15 297 F.R.D. 431, 447 (E.D.Cal.2013).

16

G. The Presence of a Governmental Participant

17

Here, defendants are state officials sued in their official capacities. (ECF No. 18 at

18 3-4.) There is no separate governmental participant involved in the issues presented by this

19 litigation. Cf. Hanlon, supra (class action litigation against Chrysler Corporation seeking

20 replacement of defective latches on minivans and damages paralleled National Highway Traffic

21 Safety Administration investigation resulting in a voluntary resolution under which Chrysler

22 agreed to, inter alia, replace the latches.) This factor is neutral.

23

H. The Reaction of the Class Members to the Proposed Settlement

24

As noted above, the court received numerous comments from prison inmates.

25 (ECF Nos. 91-114, 116-132, 134-153, 155-157, 160.)1 The number of objections and the content

26

1 On February 8, 2016, inmate Avon Davies filed a document styled “Ex Parte Request for

27 Subclass Certification, for Permission to Reply to Amended Stipulated Settlements ‘Proposed

Findings,’ and for issuance of Findings and Orders related to these matters.” The court construes

28 this document as a request for leave to file late objections to the proposed settlement and, so

9

1 of those objections raised concerns about the settlement that were discussed with the parties at the

2 final fairness hearing. One of those objections, the validity of the risk assessment tools, was the

3 subject of further briefing required by the court. The court is satisfied that the objections have

4 been addressed by counsel and do not outweigh the other factors favoring approval of the

5 settlement agreement.

6 IV. FINAL APPROVAL OF THE CLASS SETTLEMENT IS APPROPRIATE

7

In conclusion, after considering the parties' submissions and oral argument at the

8 final fairness hearing, and after considering the relevant factors, the court finds final approval of

9 the class settlement to be appropriate. The court is mindful that “voluntary conciliation and

10 settlement are the preferred means of dispute resolution” and that “[t]his is especially true in

11 complex class action litigation. . . .” Officers for Justice, 688 F.2d at 625. The court concludes

12 that the parties have reached a fair and adequate settlement and have satisfactorily addressed the

13 questions raised by class members’ objections.

14

Accordingly, IT IS HEREBY ORDERED that:

15

1. The Clerk of the Court is directed to file the comments received from inmate

16 Avon Davies nunc pro tunc to February 8, 2016; and

17

2. The joint motion of the parties for final approval of the settlement agreement

18 (ECF No. 158) is GRANTED.

19 DATED: May 26, 2016.

20

21 UNITED STATES DISTRICT JUDGE
22

23

24

25

26

27 construed, the request will be granted. The Clerk of the Court will be directed to file inmate Davies’ comments nunc pro tunc to February 8, 2016.
28
10

 
 Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 1 of 16
PRISONER_CIVIL_RIGHTS,CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento)
CIVIL DOCKET FOR CASE #: 2:12−cv−01059−KJM−AC

(PC) Johnson, et al., v. Shaffer Assigned to: Chief District Judge Kimberly J. Mueller Referred to: Magistrate Judge Allison Claire Demand: $0 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 04/20/2012 Date Terminated: 02/04/2019 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Sam Johnson on behalf of himself and all others similarly situated

represented by Keith Allen Wattley UnCommon Law 220 4th Street Suite 103 Oakland, CA 94607 510−271−0310 Fax: 510−271−0101 Email: kwattley@uncommonlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Jennifer Shaffer

represented by Heather M. Heckler Office Of The Attorney General Department of Justice 1300 I Street Suite125 Sacramento, CA 95814 916−210−7532 Fax: 916−322−8288 Email: heather.heckler@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Nicole Blonien Attorney General's Office of the State of California P.O. Box 944255 1300 I Street Suite 125 Sacramento, CA 94244−2550 916−210−7509 Fax: 916−322−8288 Email: jessica.blonien@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher John Rench Office of the Attorney General 1300 I Street Sacramento, CA 95814 916−210−7661 Fax: 916−322−8288 Email: christopher.rench@doj.ca.gov TERMINATED: 07/17/2015
Megan R. O'Carroll Attorney General's Office of the State of

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 2 of 16

California Correctional Law Section P.O. Box 944255 1300 I Street Suite 125 Sacramento, CA 94244−2550 (916) 324−5288 Fax: (916) 324−5205 Email: megan.ocarroll@doj.ca.gov TERMINATED: 12/18/2015

Michael Gregory Lee Department Of Justice 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244 916−322−6109 Fax: 916−324−5205 Email: Michael.Lee@doj.ca.gov TERMINATED: 01/30/2013

Defendant
Matthew Cate TERMINATED: 06/24/2016

represented by Heather M. Heckler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Nicole Blonien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) TERMINATED: 07/17/2015

Megan R. O'Carroll (See above for address) TERMINATED: 12/18/2015

Michael Gregory Lee (See above for address) TERMINATED: 01/30/2013

Defendant
Edmund G. Brown, Jr. TERMINATED: 06/24/2016

represented by Heather M. Heckler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Nicole Blonien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) TERMINATED: 07/17/2015

Megan R. O'Carroll (See above for address) TERMINATED: 12/18/2015

Michael Gregory Lee

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 3 of 16

(See above for address) TERMINATED: 01/30/2013

Defendant
Cliff Kusaj Ph. D., Chief Psychologist TERMINATED: 06/24/2016

represented by Heather M. Heckler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Nicole Blonien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) TERMINATED: 07/17/2015

Megan R. O'Carroll (See above for address) TERMINATED: 12/18/2015

Michael Gregory Lee (See above for address) TERMINATED: 01/30/2013

Defendant
Richard Hayward Staff Psychologist TERMINATED: 06/24/2016

represented by Heather M. Heckler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Nicole Blonien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) TERMINATED: 07/17/2015

Megan R. O'Carroll (See above for address) TERMINATED: 12/18/2015

Michael Gregory Lee (See above for address) TERMINATED: 01/30/2013

Defendant
Thomas Powers Commissioner TERMINATED: 06/24/2016

represented by Heather M. Heckler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Nicole Blonien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) TERMINATED: 07/17/2015

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 4 of 16

Defendant
Al Fulbright Deputy Commissioner TERMINATED: 06/24/2016

Megan R. O'Carroll (See above for address) TERMINATED: 12/18/2015
Michael Gregory Lee (See above for address) TERMINATED: 01/30/2013
represented by Heather M. Heckler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Nicole Blonien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher John Rench (See above for address) TERMINATED: 07/17/2015
Megan R. O'Carroll (See above for address) TERMINATED: 12/18/2015
Michael Gregory Lee (See above for address) TERMINATED: 01/30/2013

Date Filed 04/20/2012 04/21/2012 04/23/2012 04/23/2012 06/07/2012
06/07/2012 06/07/2012

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants by Sam Johnson. Attorney Wattley, Keith Allen added. (Attachments: # 1 Civil Cover Sheet)(Wattley, Keith) (Entered: 04/20/2012)
2 CERTIFICATE of SERVICE by Sam Johnson re 1 Complaint. (Wattley, Keith) (Entered: 04/21/2012)
RECEIPT number #CAE200043897 $350.00 Civil Filing Fee fbo Sam Johnson by Keith Wattley, Esquire on 4/23/2012. (Reader, L) (Entered: 04/23/2012)
4 PRISONER NEW CASE DOCUMENTS and ORDER RE CONSENT ISSUED; Consent or Decline due by 5/29/2012 (Attachments: # 1 Order re Consent) (Reader, L) (Entered: 04/23/2012)
5 ORDER signed by Magistrate Judge Gregory G. Hollows on 6/6/12 ORDERING that the Clerk of the Court is directed to issue and send plaintiff seven summonses, for defendants Shaffer, Cate, Brown, Kusaj, Hayward, Powers and Fulbright. The Clerk shall also send plaintiff eight copies of the form Consent to Proceed Before United States Magistrate Judge with this order. Plaintiff shall complete service of process on the defendants within 60 days from the date of this order. Plaintiff shall serve a copy of this order and a copy of the form Consent to Proceed Before United States Magistrate Judge on each defendant at the time the summons and complaint are served. (Dillon, M) (Entered: 06/07/2012)
6 SUMMONS ISSUED as to *Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer* with answer to complaint due within *21* days. Attorney *Keith Allen Wattley* *220 4th Street* *Suite 201* *Oakland, CA 94607*. (Dillon, M) (Entered: 06/07/2012)
7 ORDER RE CONSENT OR REQUEST FOR REASSIGNMENT Consent or Decline due by 7/12/2012 (Dillon, M) (Entered: 06/07/2012)

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 5 of 16

07/20/2012 07/31/2012 08/20/2012 08/23/2012
09/05/2012 09/07/2012
09/10/2012
09/20/2012 10/16/2012 10/18/2012 11/15/2012 11/19/2012 11/20/2012
12/06/2012 01/10/2013 01/10/2013 01/30/2013
02/20/2013

8 CONSENT to JURISDICTION of US MAGISTRATE JUDGE by Sam Johnson. (Wattley, Keith) (Entered: 07/20/2012)
9 SUMMONS RETURNED EXECUTED: Defendants served on 7/30/2012. (Wattley, Keith) Modified on 8/1/2012 (Plummer, M). (Entered: 07/31/2012)
10 MOTION to DISMISS by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Jennifer Shaffer. Attorney Lee, Michael Gregory added. (Attachments: # 1 Points and Authorities)(Lee, Michael) (Entered: 08/20/2012)
11 AMENDED 10 MOTION to DISMISS by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer. Attorney Lee, Michael Gregory added. (Attachments: # 1 Points and Authorities)(Lee, Michael) Modified on 9/25/2012 (Yin, K). (Entered: 08/23/2012)
12 STATUS REPORT by Sam Johnson. (Wattley, Keith) (Entered: 09/05/2012)
13 STIPULATION and PROPOSED ORDER to RESCHEDULE HEARING on Motion Hearing set for 10/4/2012 at 10:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows. (Wattley, Keith) Modified on 9/10/2012 (Yin, K). (Entered: 09/07/2012)
14 STIPULATION and ORDER signed by Magistrate Judge Gregory G. Hollows on 9/10/2012 and agreed between the parties to RE−SET the hearing on defendants' 11 motion to dismiss to 10/4/2012 at 10:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows; plaintiff's opposition due on or before 9/20/2012, and defendants' reply, if any, due on or before 9/27/2012. (Yin, K) (Entered: 09/10/2012)
15 OPPOSITION by Sam Johnson to 11 AMENDED MOTION to DISMISS . (Wattley, Keith) Modified on 9/25/2012 (Yin, K). (Entered: 09/20/2012)
16 CLERK'S NOTICE: Case Assigned to Judge Kimberly J. Mueller and Magistrate Judge Gregory G. Hollows. (Manzer, C) (Entered: 10/16/2012)
17 ORDER signed by Magistrate Judge Gregory G. Hollows on 10/18/2012 GRANTING 11 Amended Motion to Dismiss; ALLOWING Plaintiff to file an Amended Complaint within 28 days. (Michel, G) (Entered: 10/18/2012)
18 FIRST AMENDED PRISONER CIVIL RIGHTS COMPLAINT against All Defendants by Sam Johnson.(Wattley, Keith) (Entered: 11/15/2012)
20 MOTION to be joined to this case by Luis Renteria. (Kaminski, H) (Entered: 11/20/2012)
19 ORDER by Chief Judge Morrison C. England, Jr.: Due to the appointment of Magistrate Judge *Allison Claire* to the bench of the Eastern District, this action is reassigned from *Magistrate Judge Gregory G. Hollows* for all further proceedings. (Donati, J) (Entered: 11/20/2012)
21 ANSWER TO PRISONER CIVIL RIGHTS COMPLAINT by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer. (Lee, Michael) (Entered: 12/06/2012)
22 ORDER signed by Magistrate Judge Allison Claire on 1/10/2013 ORDERING 20 that Luis Renteria's motion to be joined in this action is DENIED. (Reader, L) (Entered: 01/10/2013)
SERVICE BY MAIL: 22 Order on Motion served on Luis Renteria. (Reader, L) (Entered: 01/10/2013)
23 DESIGNATION of COUNSEL FOR SERVICE: Added attorney Megan R. O'Carroll for defendants Edmund G. Brown Jr., Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, and Jennifer Shaffer; Attorney Michael G. Lee terminated (O'Carroll, Megan) Modified on 1/30/2013 (Schultz, C). (Entered: 01/30/2013)
24 DISCOVERY and SCHEDULING ORDER signed by Magistrate Judge Allison Claire on 02/19/13 ordering Discovery due by 5/29/2013. Dispositive Motions filed by 8/21/2013. (Plummer, M) (Entered: 02/20/2013)

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 6 of 16

05/29/2013 05/29/2013 06/19/2013 06/26/2013 08/21/2013 08/21/2013
08/29/2013
09/18/2013
10/02/2013 10/02/2013 10/09/2013 10/09/2013 10/16/2013
10/21/2013 10/24/2013

25 MOTION to COMPEL Discovery Responses by Sam Johnson. (Attachments: # 1 Proposed Order Granting Motion to Compel)(Wattley, Keith) (Entered: 05/29/2013)
26 DECLARATION of Keith Wattley in SUPPORT OF 25 MOTION to COMPEL Discovery Responses . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Wattley, Keith) (Entered: 05/29/2013)
27 OPPOSITION by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer to 25 MOTION to COMPEL Discovery Responses . (Attachments: # 1 Attachment 1, # 2 Attachment 2)(O'Carroll, Megan) (Entered: 06/19/2013)
28 REPLY by Sam Johnson to RESPONSE to 25 MOTION to COMPEL Discovery Responses . (Attachments: # 1 Exhibit M)(Wattley, Keith) (Entered: 06/26/2013)
29 MOTION to CERTIFY CLASS by Sam Johnson. Motion Hearing set for 10/16/2013 at 10:00 AM in Courtroom 26 (AC) before Magistrate Judge Allison Claire. (Wattley, Keith) (Entered: 08/21/2013)
30 MOTION for SUMMARY JUDGMENT by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer. (Attachments: # 1 Points and Authorities, # 2 Statement of Undisputed Facts, # 3 Exhibits A − F, # 4 Exhibits G − O, # 5 Exhibit P)(O'Carroll, Megan) (Entered: 08/21/2013)
31 ORDER signed by Magistrate Judge Allison Claire on 8/29/2013 ORDERING 24 DISCOVERY and SCHEDULING Order is herein AMENDED to state that L.R. 230(l) does not apply to this action; rather, all motions must be briefed in accordance with the other providsions of L.R. 230; 25 30 Motions Hearing RESET for 10/16/2013 at 10:00 AM in Courtroom 26 (AC) before Magistrate Judge Allison Claire.(Waggoner, D) (Entered: 08/29/2013)
32 ASSOCIATION of ATTORNEY: Added attorney Heather M Heckler for Edmund G. Brown, Jr,Heather M Heckler for Matthew Cate,Heather M Heckler for Al Fulbright,Heather M Heckler for Richard Hayward,Heather M Heckler for Cliff Kusaj,Heather M Heckler for Thomas Powers,Heather M Heckler for Jennifer Shaffer. (Heckler, Heather) (Entered: 09/18/2013)
33 RESPONSE by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer to 29 MOTION to CERTIFY CLASS . (Heckler, Heather) (Entered: 10/02/2013)
34 OPPOSITION by Sam Johnson to 30 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Statement of Disputed Facts)(Wattley, Keith) (Entered: 10/02/2013)
35 REPLY by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer re 34 Opposition to Motion. (Heckler, Heather) (Entered: 10/09/2013)
36 REPLY by Sam Johnson to RESPONSE to 29 MOTION to CERTIFY CLASS . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Wattley, Keith) (Entered: 10/09/2013)
37 MINUTES (Text Only) for proceedings held before Magistrate Judge Allison Claire: MOTION HEARING held on 10/16/2013 re 25 MOTION to COMPEL Discovery Responses filed by Sam Johnson, 29 MOTION to CERTIFY CLASS filed by Sam Johnson, 30 MOTION for SUMMARY JUDGMENT filed by Thomas Powers, Matthew Cate, Al Fulbright, Edmund G. Brown, Jr., Jennifer Shaffer, Cliff Kusaj, Richard Hayward. The motions are submitted at this time and the court will issue a written order. Plaintiffs Counsel Keith Wattley present. Defendants Counsel Megan R. O'Caarrol and Heather Heckler present. Court Reporter/CD Number: 1 of 1. (Callen, V) (Entered: 10/16/2013)
38 BRIEF by Sam Johnson. (Wattley, Keith) (Entered: 10/21/2013)
39 REPLY by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer re 38 Brief. (Heckler, Heather) (Entered: 10/24/2013)

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 7 of 16

11/01/2013
11/15/2013 12/02/2013 12/02/2013 03/31/2014
04/11/2014 04/15/2014 04/22/2014 05/07/2014 05/08/2014 05/15/2014 05/22/2014

40 ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/31/13 ORDERING that Plaintiffs motion to compel discovery responses (ECF No. 25 ) is construed as a motion to reopen discovery and as such is GRANTED in part; The court declines to order responses to plaintiffs previously propounded discovery requests, but will set a new schedule for discovery and dispositive motions following the district courts ruling on the Findings and Recommendation that follow; Within 14 days of the district courts ruling on the Findings and Recommendations regarding class certification and defendants motion for summary judgment, the parties shall file status reports; it is RECOMMENDED that Petitioners motion for class certification (ECF No. 29 ) be granted; Defendants motion for summary judgment (ECF No. 30 ) be granted in part and denied in part (see order for details). Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M) (Entered: 11/01/2013)
41 OBJECTIONS to FINDINGS and RECOMMENDATIONS 40 by Defendants Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer. (Heckler, Heather) (Entered: 11/15/2013)
42 REPLY by Sam Johnson to Defendants' Objections to the 40 Findings and Recommendations. (Wattley, Keith) Modified on 12/5/2013 (Yin, K). (Entered: 12/02/2013)
43 [DISREGARD, DUPLICATE OF 42 REPLY] REPLY by Sam Johnson to defendants' objections to 40 Findings and Recommendations. (Wattley, Keith) Modified on 12/5/2013 (Yin, K). (Entered: 12/02/2013)
44 ORDER signed by Judge Kimberly J. Mueller on 3/31/2014 ORDERING 40 FINDINGS AND RECOMMENDATIONS are ADOPTED in full; 29 Motion to Certify Class is GRANTED; 30 Motion for Summary Judgment is GRANTED in part and DENIED in part as provided in this Order; Status Conference SET for 5/1/2014 at 02:30 PM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller. Parties shall confer and, at least seven days prior to the status conference, file a Joint StatusReport that includes the Rule 26(f) discovery plan, with all named parties participating in the preparation and completion of the report. The court, upon review of the joint status report and following the status conference, will issue a scheduling order governing the future course of the litigation. In the extraordinary event the parties are not able to file a joint status report, each party must file an individual status report and attach a declaration setting forth, in detail, the extraordinary circumstances that prevented the parties from filing a joint status report.(Waggoner, D) (Entered: 03/31/2014)
45 STIPULATION and PROPOSED ORDER for Continuance of Status Conference by Sam Johnson. (Wattley, Keith) (Entered: 04/11/2014)
46 MINUTE ORDER issued by Courtroom Deputy A. Shaddox−Waldrop for Judge Kimberly J. Mueller on 4/15/2014 GRANTING the parties' Stipulation and Proposed Order 45 . The 5/1/2014 Status Conference is VACATED AND RESET for 5/15/2014 at 02:30 PM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller. The parties shall also submit their Joint Status Report by 5/8/2014. (Text Only Entry) (Shaddox−Waldrop, A) (Entered: 04/15/2014)
47 USCA CASE NUMBER 14−80053 re Petition for permission to appeal pursuant to Rule 23(f) filed in the Ninth Circuit on 4/14/2014. (Zignago, K.) (Entered: 04/22/2014)
48 ASSOCIATION of ATTORNEY: Added attorney Christopher John Rench for Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers and Jennifer Shaffer. (Rench, Christopher) Modified on 5/8/2014 (Plummer, M). (Entered: 05/07/2014)
49 JOINT STATUS REPORT by Sam Johnson. (Wattley, Keith) (Entered: 05/08/2014)
50 MINUTES for STATUS CONFERENCE held before Judge Kimberly J. Mueller on 5/15/2014. Plaintiff's Counsel, Keith Wattley, present. Defendants' Counsel, Chris Rench and Heather Heckler, present. The court and counsel discussed case scheduling and settlement conference options; formal written order to issue. Court Reporter: Kathy Swinhart. (Text Only Entry) (Schultz, C) (Entered: 05/15/2014)
51 STATUS (PRETRIAL SCHEDULING) ORDER signed by Judge Kimberly J. Mueller on 5/22/2014 ORDERING: Motion to Amend due by 7/15/2014; Initial Disclosures

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 8 of 16

06/09/2014 06/12/2014 07/15/2014 09/26/2014 10/10/2014 10/16/2014
10/24/2014 10/31/2014 11/03/2014
11/12/2014
12/03/2014
12/23/2014

due by 8/15/2014; Non−Expert Discovery due by 1/15/2015; All non−expert discovery Motions heard by 4/30/2015; Plaintiffs' Expert Reports due by 4/15/2015; Defendants' Expert Reports due by 5/29/2015; Last day to hear expert related discovery is 9/1/2015; Dispositive Motions filed by 11/6/2015; Final Pretrial Conference set for 2/4/2016 at 03:30 PM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller; and Bench Trial set for 3/28/2016 at 09:00 AM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller. (Donati, J) (Entered: 05/22/2014)
52 EX PARTE REQUEST to opt out of Shaffer Class Action by Avon Davies, CDCR No. J−42775. (Michel, G) (Entered: 06/11/2014)
53 ORDER of USCA − The court, in its discretion, denies the petition for permission to appeal the district court's March 31, 2014 order granting class action certification. See Fed. R. Civ. P. 23(f); Chamberlan v. Ford Motor Co., 402 F.3d 952 (9th Cir. 2005) (per curiam). (Becknal, R) (Entered: 06/13/2014)
54 NOTICE Regarding Amended Complaint by Sam Johnson. (Wattley, Keith) (Entered: 07/15/2014)
55 MOTION for Judgment on the Pleadings by Edmund G. Brown, Jr, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer. (Heckler, Heather) Modified on 9/29/2014 (Yin, K). (Entered: 09/26/2014)
56 STIPULATION and PROPOSED ORDER to Reschedule Motion Hearing by plaintiff Sam Johnson. (Wattley, Keith) Modified on 10/16/2014 (Schultz, C). (Entered: 10/10/2014)
57 MINUTE ORDER issued by Courtroom Deputy C. Schultz for Judge Kimberly J. Mueller on 10/16/2014: The parties' stipulated request to continue 56 is GRANTED. Accordingly, the motion hearing as to defendants' Motion for Judgment on the Pleadings 55 set for 10/24/2014 is VACATED and RESET for 11/7/2014 at 10:00 AM in Courtroom 3 before Judge Kimberly J. Mueller and the parties' proposed briefing schedule is ADOPTED. (Text Only Entry) (Schultz, C) (Entered: 10/16/2014)
58 OPPOSITION by Sam Johnson to 55 MOTION for JUDGMENT. (Wattley, Keith) (Entered: 10/24/2014)
59 REPLY by Edmund G. Brown, Jr, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer re 58 Opposition to Motion. (Heckler, Heather) (Entered: 10/31/2014)
60 MINUTE ORDER issued by Courtroom Deputy C. Schultz for District Judge Kimberly J. Mueller on 11/3/2014: On the court's own motion, the pending Motion for Judgment on the Pleadings at ECF No. 55 is REFERRED to Magistrate Judge Allison Claire. Accordingly, the motion hearing set for 11/7/2014 at 10:00 a.m. before District Judge Kimberly J. Mueller is VACATED and RESET for 11/12/2014 at 10:00 a.m. in Courtroom 26 before Magistrate Judge Allison Claire. (Text Only Entry) (Schultz, C) (Entered: 11/03/2014)
61 MINUTES (Text Only) for proceedings held before Magistrate Judge Allison Claire: MOTION HEARING held on 11/12/2014 re 55 MOTION for JUDGMENT filed by Thomas Powers, Al Fulbright, Edmund G. Brown, Jr., Jennifer Shaffer, Cliff Kusaj, Richard Hayward, 60 Minute Order, Set/Reset Motion Hearing. The matter is taken under submission and the court will issue a written order. Plaintiffs Counsel Keith Wattley present. Defendants Counsel Heather Heckler present. Court Reporter/CD Number: 1 of 1. (Callen, V) (Entered: 11/12/2014)
62 FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/02/14 recommending that defendants' motion for judgment on the pleadings be granted as to claims 4,5,9, and 12 and otherwise denied. That plaintiff be granted 30 days of the date of this order to file an amended complaint alleging only the 2 remaining claims, or to file a statement that it will stand on the surviving claims of the current complaint construed by the court; and that defendants' motion to dismiss defendants be denied. MOTION 55 referred to Judge Kimberly J. Mueller. Objections due within 21 days. (Plummer, M) (Entered: 12/03/2014)
63 OBJECTIONS to FINDINGS and RECOMMENDATIONS 62 by Defendants Edmund G. Brown, Jr, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers,

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 9 of 16

01/20/2015 02/19/2015
04/15/2015 05/13/2015 05/15/2015
05/15/2015 06/12/2015
06/22/2015 07/17/2015
07/17/2015 07/17/2015 07/17/2015

Jennifer Shaffer. (Heckler, Heather) (Entered: 12/23/2014)
64 REPLY by Sam Johnson re 62 FINDINGS and RECOMMENDATIONS recommending that defendants' motion for judgment on the pleadings be granted as to claims 4,5,9, and 12 and otherwise denied. That plaintiffs be granted 30 days of the date of this order to file an amended complaint a, 63 Objections to Findings and Recommendations. (Wattley, Keith) (Entered: 01/20/2015)
65 ORDER RE: PRO SE PRISONER FILINGS signed by Magistrate Judge Allison Claire on 2/19/2015 ORDERING the Clerk shall not file in this action any documents submitted by prisoners proceeding pro se; all documents bearing this case name and/or number which are submitted to the Clerk by a prisoner proceeding pro se shall be returned to the prisoner, together with a copy of this order; prisoners proceeding pro se may forward their requests or questions to counsel of record for plaintiff class, Keith A. Wattley.(Yin, K) (Entered: 02/19/2015)
66 MOTION to modify pretrial scheduling order 51 and set case management conference by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer. (Attachments: # 1 Proposed Order)(Heckler, Heather) Modified on 4/16/2015 (Plummer, M). (Entered: 04/15/2015)
67 TRANSCRIPT REQUEST by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer for proceedings held on 11/12/2014 before Judge Allison Claire. Court Reporter ECRO Jonathan Anderson. (Heckler, Heather) (Entered: 05/13/2015)
68 ORDER ADOPTING 62 FINDINGS AND RECOMMENDATIONS signed by Judge Kimberly J. Mueller on 5/14/15. The 55 Motion for Judgment is GRANTED in part and DENIED in part. Amended Complaint due within 30 days. The Motion to dismiss all defendants other than the Governor and EO of the BOP Hearings is DENIED. The 66 Motion to Modify the Pretrial Scheduling Order is GRANTED. All previously set dates are VACATED. Status Conference reset for 8/13/2015 at 02:30 PM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller. (Manzer, C) (Entered: 05/15/2015)
69 [DISREGARDED, RETURNED WITH COPY OF 65 ORDER] REQUEST for Copy of Public Record. (Meuleman, A) Modified on 5/22/2015 (Yin, K). (Entered: 05/18/2015)
70 TRANSCRIPT of Defendant's Motion for Judgment on the Pleadings Proceedings held on 11/12/2014, before Magistrate Judge Allison Claire. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 7/6/2015. Redacted Transcript Deadline set for 7/13/2015. Release of Transcript Restriction set for 9/11/2015 filed by ECRO Jonathan Anderson, Phone number 916−930−4072 E−mail janderson@caed.uscourts.gov. (Anderson, J) (Entered: 06/12/2015)
71 NOTICE re Amended Complaint by Sam Johnson re 68 Order. (Wattley, Keith) Modified on 6/23/2015 (Plummer, M). (Entered: 06/22/2015)
72 **DISREGARDED**DESIGNATION of COUNSEL FOR SERVICE. Added attorney Jessica Nicole Blonien for Edmund G. Brown, Jr,Jessica Nicole Blonien for Matthew Cate,Jessica Nicole Blonien for Al Fulbright,Jessica Nicole Blonien for Richard Hayward,Jessica Nicole Blonien for Cliff Kusaj,Jessica Nicole Blonien for Thomas Powers,Jessica Nicole Blonien for Jennifer Shaffer, attorney Heather M Heckler terminated (Blonien, Jessica) (Entered: 07/17/2015)
73 JOINT STATUS REPORT by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer. (Blonien, Jessica) (Entered: 07/17/2015)
74 CLERK'S NOTICE (text only): Please Disregard 72 Designation of Counsel as this was Filed in Error. (Flores, E) (Entered: 07/17/2015)
75 DESIGNATION of COUNSEL FOR SERVICE., attorney Christopher John Rench terminated (Blonien, Jessica) (Entered: 07/17/2015)

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 10 of 16

08/10/2015
08/11/2015 08/11/2015 09/10/2015 09/11/2015 09/28/2015 10/01/2015 10/02/2015 10/07/2015

76 MINUTE ORDER issued by Courtroom Deputy C. Schultz for Judge Kimberly J. Mueller: In light of the parties' joint statement, the court requests a further update on the settlement discussions referenced in that statement. In particular, the parties are directed to inform the court by the close of business on Tuesday, August 11, whether they have exhausted settlement discussions on their own, if not how much more time they believe they need to exhaust settlement, and whether they request referral to a court−convened settlement conference presided over by another judge of the court by random draw or a member of the court's Voluntary Dispute Resolution Panel. (Text Only Entry) (Schultz, C) (Entered: 08/10/2015)
77 JOINT STATEMENT by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, and Jennifer Shaffer in response to the Minute Order at ECF No. 76. (Heckler, Heather) (Modified on 8/11/2015 by C. Schultz) (Entered: 08/11/2015)
78 MINUTE ORDER issued by Courtroom Deputy C. Schultz for Judge Kimberly J. Mueller: Upon review of the parties' joint statement and on the court's own motion, the Status Conference set for 8/13/2015 is VACATED and RESET for 9/17/2015 at 2:30 PM in Courtroom 3 before Judge Kimberly J. Mueller subject to the court's vacating the status conference based on review of the parties' documents to be filed by 9/10/2015. (Text Only Entry) (Schultz, C) (Entered: 08/11/2015)
79 JOINT MOTION for Preliminary Approval of Settlement Agreement; MOTION to STAY; and Proposed Notice to the Class by Edmund G. Brown, Jr, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer. (Attachments: # 1 Supplement, # 2 Proposed Order, # 3 Proof of Service)(Heckler, Heather) Modified on 9/11/2015 (Yin, K). (Entered: 09/10/2015)
80 MINUTE ORDER issued by Courtroom Deputy C. Schultz for Judge Kimberly J. Mueller: In light of the parties' motion for preliminary approval of class settlement, ECF No. 79 , and on the court's own motion, the Status Conference set for 9/17/2015 is VACATED, to be reset at a later date if necessary. (Text Only Entry) (Schultz, C) (Entered: 09/11/2015)
81 MINUTE ORDER issued by Courtroom Deputy C. Schultz for Judge Kimberly J. Mueller: On the court's own motion, a Telephonic Status Conference re: the parties' Motion for Preliminary Approval of Class Settlement (ECF No. 79 ) is SET for 10/1/2015 at 2:30 PM in Courtroom 3 before Judge Kimberly J. Mueller. (Text Only Entry) (Schultz, C) (Entered: 09/28/2015)
82 MINUTES for TELEPHONIC STATUS CONFERENCE held before Judge Kimberly J. Mueller on 10/1/2015. Plaintiff's Counsel, Keith Wattley, present by telephone. Defendants' Counsel, Heather Heckler and Jessica Blonien, present by telephone. The court and counsel discussed case scheduling; a formal written order to issue. Court Reporter: Kimberly Bennett. (Text Only Entry) (Schultz, C) (Entered: 10/02/2015)
83 AMENDED STIPULATED SETTLEMENT by Edmund G. Brown, Jr, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer. (Attachments: # 1 Notice, # 2 Proof of Service)(Blonien, Jessica) Modified on 10/5/2015 (Yin, K). (Entered: 10/02/2015)
84 ORDER signed by Judge Kimberly J. Mueller on 10/6/2015 GRANTING 79 Joint Motion for Preliminary Approval of Class Action Settlement; DIRECTING the parties to prepare within three days, a final version of the Stipulated Settlement removing paragraph 15 and incorporating the dates set forth in this order; DIRECTING the defendants to post within fourteen days, notice in English and Spanish in all housing units of all prisons housing prisoners who are serving life sentences and are eligible for parole consideration after having served their minimum terms; ORDERING the defendants to file and serve on the plaintiffs a declaration that notice was published consistent with this order; SETTING a Final Fairness Hearing for 12/18/2015 at 10:00 AM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller; ORDERING that any further briefing from the parties in advance of the hearing be filed by 12/4/2015; ORDERING that any comments regarding the fairness of the settlement be postmarked by 11/13/2015 and mailed to: Clerk of the Court, United States District Court, Eastern District of California, 501 "I" Street, Sacramento, CA 95814. (Michel, G.) (Entered: 10/07/2015)

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 11 of 16

10/09/2015
10/16/2015
10/28/2015 10/29/2015
10/30/2015 10/30/2015 11/02/2015 11/02/2015 11/02/2015 11/02/2015 11/02/2015 11/02/2015 11/02/2015 11/03/2015 11/04/2015 11/04/2015 11/04/2015 11/04/2015 11/04/2015 11/05/2015

85 NOTICE OF COMPLIANCE WITH OCTOBER 7, 2015 ORDER 84 by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer: # 1 Final Notice, # 2 Proof of Service )(Heckler, Heather) Modified on 10/13/2015 (Plummer, M). (Entered: 10/09/2015)
86 MOTION for ATTORNEY FEES by Sam Johnson. Motion Hearing set for 11/20/2015 at 10:00 AM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller. (Attachments: # 1 Declaration of Keith Wattley in Support of Motion for Fees and Costs, # 2 Exhibit A to Wattley Declaration, # 3 Exhibit B to Wattley Declaration, # 4 Exhibit C to Wattley Declaration, # 5 Proposed Order Granting Motion for Fees and Costs)(Wattley, Keith) (Entered: 10/16/2015)
87 DECLARATION of Counsel Regarding the Posting of Class Notices and the Placement of Documents in Prison Libraries. (Blonien, Jessica) (Entered: 10/28/2015)
88 MINUTE ORDER issued by Courtroom Deputy C. Schultz for District Judge Kimberly J. Mueller ORDERING the Motion for Attorney Fees (ECF No. 86 ) is REFERRED to Magistrate Judge Allison Claire. Accordingly, the Motion Hearing set for 11/20/2015 before District Judge Kimberly J. Mueller is VACATED. Plaintiff shall re−notice the motion before Magistrate Judge Allison Claire. (Text Only Entry) (Schultz, C) (Entered: 10/29/2015)
91 COMMENTS by Ivan Von Staich (CDC # E−10079) to 84 Order. (Donati, J) (Entered: 11/10/2015)
92 COMMENTS by Ferdinand Reynolds (CDC # D−11772) to 84 Order. (Donati, J) (Entered: 11/10/2015)
97 COMMENTS by Larry Hines (CDC# C−31133) to 84 Order. (Donati, J) (Entered: 11/10/2015)
98 COMMENTS by Javert Siller (CDC# C−56518) to 84 Order. (Donati, J) (Entered: 11/10/2015)
99 COMMENTS by Todd Gillard (CDC# H−73089) to 84 Order. (Donati, J) (Entered: 11/10/2015)
100 COMMENTS by Gary Robinson (CDC# B−92448) to 84 Order. (Donati, J) (Entered: 11/10/2015)
101 COMMENTS by Richard Bell (CDC# D−34780) to 84 Order. (Donati, J) (Entered: 11/10/2015)
102 COMMENTS by Roy Roach (CDC# E−00045) to 84 Order. (Donati, J) (Entered: 11/10/2015)
103 COMMENTS by Richard Crane (CDC# C−44519) to 84 Order. (Donati, J) (Entered: 11/10/2015)
104 COMMENTS by Brian Montgomery (CDC# H−16875) to 84 Order. (Donati, J) (Entered: 11/10/2015)
105 COMMENTS by Scott Stetter (CDC# J−22963) to 84 Order. (Donati, J) (Entered: 11/10/2015)
106 COMMENTS by James McGee (CDC# B−94953) to 84 Order. (Donati, J) (Entered: 11/10/2015)
107 COMMENTS by Ratha Seth (CDC# K−45821) to 84 Order. (Donati, J) (Entered: 11/10/2015)
108 COMMENTS by Michael Story (CDC# H−42955) to 84 Order. (Donati, J) (Entered: 11/10/2015)
109 COMMENTS by Danny Sanders (CDC# D−02433) to 84 Order. (Donati, J) (Entered: 11/10/2015)
93 COMMENTS by David Weidert (CDC # C−39455) to 84 Order. (Donati, J) (Entered: 11/10/2015)

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 12 of 16

11/05/2015 11/05/2015 11/05/2015 11/05/2015 11/05/2015 11/05/2015 11/05/2015 11/05/2015 11/06/2015 11/06/2015 11/09/2015
11/09/2015 11/09/2015 11/09/2015 11/09/2015 11/10/2015
11/10/2015
11/10/2015

94 COMMENTS by Eric Stoner (CDC# D−28224) to 84 Order. (Donati, J) (Entered: 11/10/2015)
95 COMMENTS by Robert McCoy (CDC# J−00408) to 84 Order. (Donati, J) (Entered: 11/10/2015)
96 COMMENTS by Gerald Williams (CDC# C−93300) to 84 Order. (Donati, J) (Entered: 11/10/2015)
110 MOTION for 30−DAY EXTENSION OF TIME to file comments by Richard J. Crane. (Kaminski, H) (Entered: 11/10/2015)
111 COMMENTS by Milton Moore, Jr. (CDC# J−09799) to 84 Order. (Zignago, K.) (Entered: 11/10/2015)
112 COMMENTS by Richard Stephen Levy (CDC# B−95583) to 84 Order. (Zignago, K.) (Entered: 11/10/2015)
113 COMMENTS by William Vogel (CDC# P−88353) to 84 Order. (Zignago, K.) (Entered: 11/10/2015)
114 COMMENTS by Rodolfo Ismael Gonzalez (CDC# K−57028) to 84 Order. (Zignago, K.) (Entered: 11/10/2015)
116 COMMENTS by Thomas W. Abney (CDC# P−82196) to 84 Order. (Zignago, K.) (Entered: 11/12/2015)
117 COMMENTS by John Steelman (CDC# D−30388) to 84 Order. (Zignago, K.) (Entered: 11/12/2015)
89 [VACATED PURSUANT TO 90 ORDER] AMENDED NOTICE of MOTION HEARING as to 86 MOTION for ATTORNEY FEES by Sam Johnson. Motion Hearing reset for 12/9/2015 at 10:00 AM in Courtroom 26 (AC) before Magistrate Judge Allison Claire. (Attachments: # 1 Declaration Declaration of Keith Wattley In Support of Plaintiff's Unopposed Motion for Attorneys' Fees and Costs, # 2 Exhibit Exhibit A to Wattley Declaration, # 3 Exhibit Exhibit B to Wattley Declaration, # 4 Exhibit Exhibit C to Wattley Declaration, # 5 Proposed Order Proposed Order Granting Motion for Fees and Costs)(Wattley, Keith) Modified on 11/10/2015 (Yin, K). (Entered: 11/09/2015)
118 COMMENTS by Robert Lee Jenkins, Jr. (CDC# H−53355) to 84 Order. (Zignago, K.) (Entered: 11/16/2015)
119 COMMENTS by William Moalem (CDC# P−51931) to 84 Order. (Zignago, K.) (Entered: 11/16/2015)
120 COMMENTS by Phoenix Kralovetz (CDC# F−79317) to 84 Order. (Zignago, K.) (Entered: 11/16/2015)
124 COMMENTS by Anthony Mantigal (CDC# D−69330) to 84 Order. (Zignago, K.) (Entered: 11/16/2015)
90 ORDER signed by Magistrate Judge Allison Claire on 11/09/15 granting 86 Motion for Attorney Fees. Defendants shall remit payment to plaintiff's counsel in the amount of $119,796.05, not later than 30 days after the filing date of this order, subject to interest thereafter as provided in 28 USC 1961. (Plummer, M) (Entered: 11/10/2015)
115 ORDER denying 110 Motion for Extension signed by Judge Kimberly J. Mueller on November 11, 2015. It is hereby ordered that Inmate Crane's motion for extension of time 110 is denied; and the Clerk of the Court is directed to serve a copy of this order on Inmate Crane at the address provided on ECF No. 110. (Andrews, P) (Entered: 11/10/2015)
121 COMMENTS by Jerry L. Taylor (CDC# D−05217), Timothy W. Wilson (CDC# J−41686), Donald P. Glass (CDC# K−83800), Michael L. Story (CDC# H−42955), Dennis L. Hamilton, (CDC# D−57313), Jerry J. Claborn (CDC# C−04455), Willie R. Wilson (CDC# E−09697), Ted D. Daniels (CDC# T−23705), Larry D. Woods (CDC# J−04537), Daryl K. Bouie (CDC# E−31124), Wesley A. Brockway (CDC# G−40537), Anthony T. Wade (CDC# D−00065), Eric D. Mitchell (CDC# E−99956), Duane R. Garcia (CDC# E−21272), Gilberto C. Juarez (CDC# J−83144), Antonio C. Gans

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 13 of 16

11/10/2015 11/11/2015 11/12/2015 11/12/2015 11/12/2015 11/12/2015 11/12/2015 11/12/2015 11/13/2015 11/13/2015 11/13/2015 11/16/2015 11/16/2015 11/16/2015 11/16/2015 11/16/2015 11/16/2015 11/16/2015 11/16/2015 11/16/2015 11/16/2015

(CDC# V−03805), Lamar K. Richardson (CDC# H−86788), Willie V. Hickman (CDC# F−84544), Nelson C. Reyes (CDC# D−08157), Bobby D. Bremer (CDC# P−70419), Charles H. Fields (CDC# D−13305), Gerald D. Williams (CDC# C−93300), Robert J. White (CDC# D−77270), Richard D. Richards (CDC# K−97014), Harold B. Williams (CDC# D−81677) to 84 Order. (Zignago, K.) (Entered: 11/16/2015)
125 COMMENTS by T.D. Hudkins and David Howard Michael (CDC# F−13945) to 84 Order. (Zignago, K.) (Entered: 11/23/2015)
SERVICE BY MAIL: 115 Order served on Richard J. Crane (CDC# C−44519). (Donati, J) (Entered: 11/11/2015)
122 COMMENTS by Robert Barajas (CDC# B−23186) to 84 Order. (Zignago, K.) (Entered: 11/16/2015)
123 COMMENTS by Orrin Carr (CDC# B−70020) to 84 Order. (Zignago, K.) (Entered: 11/16/2015)
126 COMMENTS by Daniel Wolff (CDC# C−44281) to 84 Order. (Zignago, K.) (Entered: 11/23/2015)
127 COMMENTS by Peter M. Bergne (CDC# E−57901) to 84 Order. (Zignago, K.) (Entered: 11/23/2015)
128 COMMENTS by Steve M. Castillo (CDC# D−89028) to 84 Order. (Zignago, K.) (Entered: 11/23/2015)
129 COMMENTS by Daniel Dilley (CDC# E−15304) to 84 Order. (Zignago, K.) (Entered: 11/23/2015)
130 COMMENTS by Gary Sanchez (CDC# D−91919) to 84 Order. (Zignago, K.) (Entered: 11/23/2015)
131 COMMENTS by Michael W. Gasner (CDC# E−22757) to 84 Order. (Zignago, K.) (Entered: 11/23/2015)
132 COMMENTS by Gregory Zermeno (CDC# C−73638) to 84 Order. (Zignago, K.) (Entered: 11/23/2015)
134 COMMENTS by Lionel Mitchell (CDC# C−41795) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
135 COMMENTS by Theresa Torricellas (CDC# W−21722) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
136 COMMENTS by Wendell Bigelow (CDC# K−66059) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
137 COMMENTS by Payman Borhan (CDC# T−86470) to 84 order. (Zignago, K.) (Entered: 11/30/2015)
138 COMMENTS by Ronald Crutcher (CDC# D−59311) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
139 COMMENTS by Dennis S. Ott (CDC# J−78934) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
140 COMMENTS by William Vogel (P−88353) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
141 COMMENTS by Justo Morales (CDC# F−31628) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
142 COMMENTS by William Moalem (CDC# P−51931) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
143 COMMENTS by John Trusskey (CDC# C−90649) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 14 of 16

11/16/2015 11/16/2015 11/16/2015 11/16/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/17/2015 11/19/2015 11/20/2015 11/23/2015 11/24/2015
11/30/2015 12/01/2015
12/04/2015 12/10/2015
12/18/2015

144 COMMENTS by Perry Satchell (CDC# E−95799) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
145 COMMENTS by Michael Victory (CDC# P−07048) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
146 COMMENTS by Samuel Maxwell (CDC# D−30768) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
147 COMMENTS by Theresa Torricellas (CDC# W−21722) to 84 Order. (Attachments: # 1 Part 2, # 2 Part 3) (Zignago, K.) (Entered: 11/30/2015)
148 COMMENTS by Edward Jones (CDC# E−38291) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
149 COMMENTS by Mark Rogowski (CDC# H−27508) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
150 COMMENTS by Reginald Handy (CDC# P−46786) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
151 COMMENTS by Richard Burch, Jr. (CDC# D−27328) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
152 COMMENTS by Luis Renteria (CDC# E−75707) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
153 COMMENTS by Richard J. Crane (CDC# C−44519) to 84 Order. (Zignago, K.) (Entered: 11/30/2015)
160 MOTION for Joinder by inmate Alden A. Thomas. (Becknal, R) (Entered: 12/10/2015)
157 OBJECTIONS by Avon Davies (CDC# J−42775) to 84 Order. (Attachments: # 1 Objections to Proposed Agreement & Request for Declaratory Judgment, # 2 Proof of Service) (Marciel, M) (Entered: 12/04/2015)
156 COMMENTS by John Husser (CDC# P−55852) to 84 Order. (Marciel, M) (Entered: 12/04/2015)
133 MOTION for Reconsideration of Timing of Fee and Cost Payment Specified in November 10, 2015 Order 90 by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer. (Blonien, Jessica) Modified on 11/25/2015 (Plummer, M). (Entered: 11/24/2015)
155 COMMENTS by Gilbert Ortegon (CDC# AY 2584) to 84 Order. (Marciel, M) (Entered: 12/04/2015)
154 ORDER signed by Magistrate Judge Allison Claire on 11/30/2015 GRANTING defendants' 133 request. The last sentence of this court's order filed 11/24/2014, (ECF No. 90 at 3) is AMENDED to read as follows: Defendants shall remit payment to Plaintiffs' counsel in the amount of $119,796.05, within thirty (30) days after the Court grants final approval of the parties Amended Stipulated Settlement, subject to interest thereafter as provided in 28 U.S.C. § 1961. (Yin, K) (Entered: 12/01/2015)
158 MOTION for Final Approval of Settlement Agreement by Edmund G. Brown, Jr, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer. (Attachments: # 1 Proof of Service)(Blonien, Jessica) (Entered: 12/04/2015)
159 ORDER signed by Judge Kimberly J. Mueller on 12/10/15 ORDERING that the Clerk of the Court is directed to file the motion filed by Inmate Alden A. Thomas and enter it on the docket in this action; Inmate Alden's motion is denied as unnecessary; and to the extent the motion contains comments relevant to the proposed settlement agreement, those will be considered by the court in connection with the fairness hearing set for December 18, 2015. (Becknal, R) (Entered: 12/10/2015)
161 MINUTES for FINAL FAIRNESS HEARING held before Judge Kimberly J. Mueller on 12/18/2015. Plaintiff's Counsel, Keith Wattley, present. Defendants' Counsel, Jessica Blonien and Heather Heckler, present. The court and counsel discussed the parties' proposed settlement. Within 21 days, the parties shall submit joint briefing as

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 15 of 16

12/22/2015 12/29/2015
01/07/2016 01/08/2016
01/08/2016 02/08/2016 05/27/2016 06/17/2016 06/24/2016 06/29/2016 08/22/2016 01/09/2017 01/09/2017 01/30/2017

discussed at the hearing. Court Reporter: Cathie Bodene. (Text Only Entry) (Schultz, C) (Docket number added by C. Schultz on 12/18/2015) (Entered: 12/18/2015)
162 TRANSCRIPT REQUEST by Sam Johnson for proceedings held on 12/18/2015 before Judge Kimberly Mueller. Court Reporter Cathie Bodene. (Wattley, Keith) (Entered: 12/22/2015)
163 TRANSCRIPT of Proceedings held on December 18, 2015, Re: Fairness Hearing, before Judge Kimberly J. Mueller, filed by Court Reporter Cathie Bodene, Phone number 916−446−6360 E−mail cbodene@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through Court Reporter Cathie Bodene or PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 1/22/2016. Redacted Transcript Deadline set for 1/29/2016. Release of Transcript Restriction set for 3/28/2016. (Bodene, C) (Entered: 12/29/2015)
164 TRANSCRIPT REQUEST by Edmund G. Brown, Jr, Matthew Cate, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer for proceedings held on 12/18/15 before Judge Mueller. Court Reporter Cathie Bodene. (Heckler, Heather) (Entered: 01/07/2016)
165 RESPONSE by Edmund G. Brown, Jr, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer to 161 amended stipulated settlement (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5(a), # 6 Exhibit 5(b), # 7 Exhibit 5(c), # 8 Exhibit 5(d))(Blonien, Jessica) Modified on 1/11/2016 (Plummer, M). (Entered: 01/08/2016)
166 EXHIBIT 6−12 by Edmund G. Brown, Jr, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer re 165 Response,. (Attachments: # 1 Exhibit 6, # 2 Exhibit 7, # 3 Exhibit 8, # 4 Exhibit 9, # 5 Exhibit 10, # 6 Exhibit 11, # 7 Exhibit 12, # 8 Proof of Service)(Blonien, Jessica) (Entered: 01/08/2016)
168 NOTICE OF COMMENTS filed by inmate Avon Davies (filed pursuant to 167 Order) (Benson, A) (Entered: 05/27/2016)
167 ORDER signed by District Judge Kimberly J. Mueller on 05/26/16 ORDERING that the Clerk is directed TO FILE the 168 comments received from inmate Avon Davies nunc pro tunc to 02/08/16; the 158 Joint Motion for Final Approval of the Settlement Agreement is GRANTED. (Benson, A) (Entered: 05/27/2016)
169 MOTION to DISMISS all defendents except Jennifer Shaffer by Sam Johnson. (Attachments: # 1 Proposed Order)(Wattley, Keith) Modified on 6/20/2016 (Yin, K). (Entered: 06/17/2016)
170 ORDER signed by District Judge Kimberly J. Mueller on 6/23/16 ORDERING that Plaintiff's Motion to Dismiss all Defendants except Jennifer Shaffer 169 is GRANTED. (Mena−Sanchez, L) (Entered: 06/24/2016)
171 NOTICE of Service filed by A Davies. (Mena−Sanchez, L) (Docket Text Modified on 7/8/2016 (by C. Schultz) (Entered: 07/05/2016)
172 [DISREGARD] LETTER from Charles M. Meyer. (Jackson, T) (Entered: 09/12/2016)
173 OPPOSITION by Andre Sparks to the Board's Proposed Regulations Regarding the Adoption of Fixing Errors in the Comprehensive Risk Assessment. (Jackson, T) (Entered: 01/10/2017)
174 REQUEST for copy of docket by David Andrews, non party. (Washington, S) (Entered: 01/12/2017)
175 MOTION to Extend Jurisdiction by Sam Johnson. Motion Hearing set for 3/10/2017 at 10:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Wattley, Keith) Modified on 1/31/2017 (Yin, K). (Entered: 01/30/2017)

Case: 2:12-cv-1059 As of: 01/28/2020 10:12 AM PST 16 of 16

02/24/2017 03/03/2017 03/10/2017
03/21/2017 03/21/2017 03/21/2017
03/24/2017 03/24/2017 09/22/2017 10/02/2017 10/06/2017
12/28/2017 02/04/2019

176 OPPOSITION by Jennifer Shaffer to 175 MOTION Extend Jurisdiction. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Proof of Service)(Heckler, Heather) (Entered: 02/24/2017)
177 REPLY by Sam Johnson re 175 MOTION Extend Jurisdiction. (Attachments: # 1 Exhibit G, # 2 Exhibit H)(Wattley, Keith) (Entered: 03/03/2017)
178 MINUTES of MOTION HEARING held before District Judge Kimberly J. Mueller on 3/10/2017. Counsel for plaintiffs, Keith Wattley, present. Counsel for defendants, Heather Heckler and Jessica Blonien, present. After hearing oral argument, the court instructed parties to submit supplemental briefing, not to exceed 5 pages, within 14 days. Upon receipt of the supplemental briefing, the matter will be considered SUBMITTED on Plaintiffs Motion to Extend Courts Jurisdiction (ECF 175 ); formal written order to issue. Court Reporter: Jennifer Coulthard. (Text Only Entry) (Streeter, J) Modified on 3/10/2017 (Streeter, J). (Entered: 03/10/2017)
179 TRANSCRIPT REQUEST by Sam Johnson for proceedings held on 03/10/2017 before Judge Judge Mueller. Court Reporter Jennifer Coulthard. (Wattley, Keith) (Entered: 03/21/2017)
180 TRANSCRIPT REQUEST for 178 Motion Hearing by Edmund G. Brown, Jr, Al Fulbright, Richard Hayward, Cliff Kusaj, Thomas Powers, Jennifer Shaffer. (Heckler, Heather) Modified on 3/22/2017 (Yin, K). (Entered: 03/21/2017)
181 TRANSCRIPT of Proceedings Plaintiff's Motion to Extend Jurisdiction held on 03−10−17, before District Judge Kimberly J. Mueller, filed by Jennifer Coulthard, Phone number 312−617−9858 E−mail jenrmrcrr2@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 4/13/2017. Redacted Transcript Deadline set for 4/21/2017. Release of Transcript Restriction set for 6/19/2017. (Dunn−Coulthard, J) (Entered: 03/21/2017)
182 SUPPLEMENTAL BRIEF by Sam Johnson regarding interpretation of the settlement agreement. (Wattley, Keith) Modified on 3/27/2017 (Plummer, M). (Entered: 03/24/2017)
183 BRIEF Briefing Following Hearing On Motion To Extend Jurisdiction by Jennifer Shaffer. (Attachments: # 1 Proof of Service)(Heckler, Heather) (Entered: 03/24/2017)
184 NOTICE of Supplemental Authority by Sam Johnson in SUPPORT of 175 Motion Extend Jurisdiction. (Attachments: # 1 Exhibit I, # 2 Exhibit J)(Wattley, Keith) Modified on 10/4/2017 (Yin, K). (Entered: 09/22/2017)
185 RESPONSE by Jennifer Shaffer to 184 Notice of Supplemental Authority. (Attachments: # 1 Exhibit 1)(Heckler, Heather) Modified on 10/4/2017 (Yin, K). (Entered: 10/02/2017)
186 ORDER signed by District Judge Kimberly J. Mueller on 10/06/17 ORDERING the Clerk to change the short title of this action to reflect the dismissal of all defendants except Jennifer Shaffer; and GRANTING IN PART the 175 Motion to Extend Jurisdiction; the court's jurisdiction shall terminate upon compliance with this order or one year from the date of this order, whichever is sooner. (Benson, A.) (Entered: 10/06/2017)
187 [DISREGARD PURSUANT TO 65 ORDER] REQUEST for copies by Stephen F. Snow. (Kaminski, H) (Response sent with copy of 65 order − the current docket is 18 pages.) Modified on 1/2/2018 (Yin, K). (Entered: 12/29/2017)
188 MINUTE ORDER issued by Courtroom Deputy C. Schultz for District Judge Kimberly J. Mueller: By order filed October 6, 2017, ECF No. 186 , this court extended jurisdiction over this action until the order was complied with or for one year from the date of the order, whichever was sooner. The one year period has now expired. Accordingly, good cause appearing, IT IS HEREBY ORDERED that the Clerk of the Court is directed to close this case. (Text Only Entry)(Schultz, C) (Entered: 02/04/2019)